Date: 20010927
Docket: IMM-784-00
Neutral Citation: 2001 FCT 1056
Ottawa, Ontario, this 27th day of September, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
VIDYA SUHAS SHINDE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision by a visa officer dated
December 21, 1999 wherein Vidya Suhas Shinde (the "applicant") and accompanying dependant were denied their application for permanent residence in Canada.
[2] The applicant seeks a writ of certiorari quashing the above decision, an order of
mandamus directing that the application be reassessed by a different visa officer regarding "experience", "education" and that the applicant be given a fair opportunity to disabuse the visa officer of any concerns with respect to the application. The applicant further seeks the costs of this application.
Background Facts
[3] The applicant and her daughter are citizens of India. The applicant filed a first
visa application in New Delhi and the application was refused. In October, 1998 the applicant filed a second application, this time with the visa office in Cairo. This judicial review concerns the decision of the visa officer for the Cairo application.
[4] In her application, the applicant claimed experience in the travel industry working
with Udaan Travels for the period July, 1993 to December, 1994 and with Sahara India Airlines for the period December, 1994 to June, 1997. The applicant was interviewed by a visa officer on November 25, 1999 in Cairo.
[5] The decision of the visa officer was formally communicated to the applicant by
letter dated December 21, 1999. The visa officer assessed the applicant for the occupations of Computer Programmer, NOC 2163.0 and Travel Counsellor, NOC 6431.0.
[6] The applicant was rejected as a Computer Programmer for failing to receive
points for the occupational factor and for experience.
[7] For the occupation of Travel Counsellor, the assessment units were provided as
follows:
Age 10
Occupational Factor 01
Specific Vocational Points 15
Experience 02
Arranged Employment/Designated Occupation 00
Demographic Factor 08
Education 15
Knowledge of English and French 09
Bonus 00
Personal Suitability 06
Total points achieved 66
The total point value of 66 is under the minimum point value of 70 to qualify for a Canadian immigration visa. Thus, the applicant's application was rejected.
Applicant's Submissions
[8] The applicant submits that the visa officer committed an error of law in awarding
the applicant only two units for experience in the occupation of Travel Counsellor due to a misinterpretation of the work description.
[9] The applicant submits that an applicant does not have to perform all the duties
within an occupational definition for it to be said that the applicant has experience in the occupation.
[10] The applicant submits that the officer determined that the applicant did not
perform the duties in only one of the NOC main duties, citing the CAIPS notes excerpt "DID NOT PLAN AND ORGANIZE VACATION TRAVEL FOR INDIVIDUALS OR GROUPS". The applicant submits concluding that the applicant did not perform the duties of the occupation based on that one duty is an error of law.
Respondent's Submissions
[11] The respondent submits that the visa officer did not err in refusing the applicant
permanent residence status as the applicant failed to discharge her onus in convincing the visa officer she had appropriate experience as a Travel Counsellor. The respondent further submits that the applicant has failed to demonstrate that the visa officer misinterpreted the work description of travel counsellor.
[12] The respondent cites the CAIPS excerpt "DID NOT ADVISE CLIENTS ON
OPTIONS" along with the excerpt cited by the applicant, submitting that the officer named two of the items in the CAIPS notes as demonstrative of her lack of performing the duties at Sahara. The respondent submits it is clear from the CAIPS notes that the officer had discussions with the applicant about her duties at both her positions and was not convinced the applicant had performed those duties.
[13] The respondent cites Madan v. M.C.I., (July 29, 1999), Docket IMM-4248-98,
F.C.T.D. for the submission that the Court should defer to the visa officer as "they have a familiarity with the understanding [of the NOC] that is at least equal to, and will often exceed, that of a reviewing court." The respondent further submits that the visa officer exercised her decision in good faith in accordance with the principles of natural justice and has not relied on any irrelevant considerations in doing so.
Issue
[14] Did the visa officer err in granting the applicant 2 units of assessment for
experience?
Applicable Law
[15] Subsection 8(1) of the Immigration Act R.S.C. 1985 c. I-2 states:
| 8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
|
Analysis and Decision
[16] The applicant urged that since her affidavit was filed, I should rely on the affidavit
and not the CAIPS notes. I have reviewed the affidavit and I do not find that it contradicts the CAIPS notes in the area of experience. That being the case, there is no reason why I should not rely on the CAIPS notes.
[17] It is not a requirement that the applicant perform all of the duties listed for Travel
Counsellor in NOC 6431.0 as the NOC states that Travel Counsellors must "perform some or all of the following duties". The jurisprudence of this Court has established that a requirement that the applicant perform "some or all of the following duties" means that the applicant should have performed a substantial number of the main duties set out in the NOC, including any essential duties (see Rudani v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1922 (F.C.T.D.).
[18] A perusal of the CAIPS notes shows the duties carried out by the applicant in her
previous employment. It would appear to me that the visa officer could have come to the conclusion that the applicant had not performed a substantial part of the duties of a Travel Counsellor.
[19] The applicant submitted that the visa officer only had concern with one of her
duties but a reference to the visa officer's notes show that there was a concern about two areas of the duties. As well, the visa officer stated in a separate paragraph the duties carried out by the applicant and then made the statement later in her notes that she was not satisfied that she had carried out a substantial part of the duties for the occupation. It perhaps would have been clearer had the visa officer listed all of the duties that had not been performed by the applicant.
[20] Visa officers have a great deal of experience in assessing whether or not an
applicant has performed certain duties of an occupation and how many units of assessment for experience to assign to the duties performed. Consequently, I am not prepared to interfere in this case with the visa officer's assessment. It was a reasonable assessment.
[21] The application for judicial review is therefore dismissed.
[22] Neither party wished to propose a serious question of general importance pursuant
to section 83 of the Immigration Act, supra.
ORDER
[23] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
September 27, 2001