Date: 19990526
Docket: IMM-4457-98
BETWEEN:
FARES SHAHWAN
Applicant
AND
THE MINISTER
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the decision dated June 25,1998 by Umit Ozguc, visa officer for the Minister of Citizenship and Immigration at the Canadian Embassy in Ankara, Turkey. This decision, received by the applicant on July 1, 1998, refused the application for permanent residence made by the applicant.
FACTS
[2] On March 18, 1997, the applicant"s first application for permanent residence as a mechanical engineer, which was made at the Canadian Embassy in Damascus, Syria, was refused.
[3] On July 21, 1997, the applicant made a new application for permanent residence, at the Canadian Embassy in Ankara, Turkey.
[4] In response to question 17 of his application, the applicant indicated that his intended occupation in Canada was that of a mechanical engineer.
[5] On June 4, 1998, the applicant attended an interview with the visa officer responsible for the file, Umit Ozguc.
[6] As a result of an analysis of the factors listed in Schedule 1 of the Immigration Regulations, 1978, the visa officer awarded the applicant 68 units of assessment, which were allocated as follows:
Age 10
Occupational Factor 05
Education and Training 17
Experience 02
Arranged Employment 00
Demographic Factor 08
Education 15
Knowledge of English 06
Knowledge of French 00
Bonus 00
Personal Suitability 05
Total: 68
[7] On June 25, 1998, the visa officer rejected the applicant"s application for permanent residence as he was not awarded the 70 units of assessment required under subparagraph 9(1)(b )(i) of the Immigration Regulations, 1978.
[8] On September 2, 1998, the applicant filed an application for judicial review against this decision.
APPLICANT"S ARGUMENTS
[9] The applicant essentially claims that he has been working as a mechanical engineer since 1994 and that the visa officer failed to take into account the applicant"s experience before 1997 without just cause.
[10] The applicant made specific reference to the following entry in the visa officer"s notes:His reference letters are dated May and April 1997. Accordingly he cannot be assessed as an engineer before that date.
The applicant acknowledged that the visa officer has broad discretion but that this discretion must be exercised by the officer directly and he or she cannot rely solely on a previous decision by another visa officer.
[11] The applicant also suggested that the letter dated May 12, 1997 from his employer, which was identified as a "job certificate", was written after the decision by the first visa officer and that the new visa officer should have taken this letter into consideration with regard to the applicant"s previous experience.
RESPONDENT"S ARGUMENTS
[12] The respondent argued that the visa officer made his decision in the exercise of the discretion under the Act and that it was quite normal under the circumstances to take into consideration the fact that an adverse decision had been made in 1997.
[13] The respondent also indicated that the applicant had the benefit of an interview and was able to fully explain what his work consisted of, and that the letter of May 12, 1997 was taken into account during the assessment.
[14] Furthermore, the visa officer made an independent assessment of the duties performed by the applicant and of his situation because the points awarded by the visa officer with respect to the applicant"s knowledge of the English language and his personal suitability were not the same as those awarded in the previous decision. This indicates that visa officer Umit Ozguc made an assessment independently of the application for permanent residence made by the applicant in Damascus.
ANALYSIS
[15] I feel it is important to mention at the outset that both counsel presented their respective cases in a very professional manner and restricted themselves to the main issues.
[16] Counsel for the applicant made specific reference to the statement on the visa officer"s written report:His reference letters are dated May and April 1997. Accordingly he cannot be assessed as an engineer before that date.
A reading of this sentence could give the impression that the applicant was not given a full and impartial assessment by the visa officer.
[17] However, the documentary evidence and the fact that the applicant attended an interview during which he was able to explain his situation in detail and his experience in particular indicates to me that the visa officer"s assessment was made following standard practice.
[18] Furthermore, the visa officer awarded two extra points under the experience factor in light of the evidence submitted to him that the applicant"s responsibilities had increased since 1997. The visa officer gave him the benefit of the doubt and accepted his experience as a mechanical engineer after that date.
[19] Although the job certificate from the Jordan Ice and Aerated Water company certified that the applicant had been employed as a "mechanical engineer" since February 8, 1994, it does not really add anything to the evidence because, as the visa officer himself clearly said, he did not rely on the title of the position, but on the description of the duties performed by the applicant during the course of his work.
[20] Counsel for the respondent cited several precedents, and in particular a decision by the Honourable Mr. Justice MacKay, in which he confirmed that it is perfectly appropriate for a visa officer to consult the prior notes and previous decision of another visa officer:
| In my opinion, the visa officer did not fetter her discretion merely by obtaining the case notes of the Delhi visa officer. Nor was there any fettering of discretion by the Colombo officer simply considering the earlier Delhi assessment, and particularly the applicant's failure to pursue further studies, as a matter relevant in assessing personal suitability. I note the Colombo officer scored the applicant at 4 points, higher than the earlier assessment by the officer in Delhi. I note also that the applicant's lack of educational initiative was only one among several reasons, and the last one listed, that the visa officer in Colombo identified in discussing how she arrived at the personal suitability score was assigned. |
Processing the applicant's application in a manner not inconsistent with that of the earlier Delhi assessment is not evidence that the later assessment in Colombo simply followed the earlier one.1
CONCLUSION
[21] In my opinion, the applicant failed to establish that the visa officer"s actions were so unreasonable as to warrant the intervention of this Court.
[22] For all of these reasons, the application for judicial review is dismissed.
[23] As neither counsel of record submitted a question, no question will be certified.
Pierre Blais Judge
OTTAWA, ONTARIO
May 26, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4457-98
STYLE OF CAUSE: FARES SHAHWAN and THE MINISTER
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 20, 1999
REASONS FOR ORDER AND ORDER OF MR. JUSTICE BLAIS
DATED MAY 26, 1999
APPEARANCES:
Denis Buron FOR THE APPLICANT
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Denis Buron FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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