Date: 19990820
Docket: IMM-3402-98
BETWEEN:
SIDNEY FLORES DAUZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] The applicant Sidney Flores Dauz applied for permanent residence in Canada. His intended occupation was Computer Systems Analyst (National Occupational Classification (NOC) 2162). He was assessed under that category and also as a Computer Programmer (NOC 2163). His application was refused by a visa officer in Manila, following an interview.
[2] Under the regulations relating to the selection criteria, the application should have been granted if the applicant achieved 70 units including at least one unit under the occupational factor and one for experience.
[3] The applicant was awarded 77 units in total, including the maximum 10 units for the occupational factor (factor 4 in Schedule 1 to the Immigration Regulations), and the maximum 15 units for education and training (factor 2), but no units for experience (factor 3).
[4] Counsel for the applicant argued that the visa officer disregarded the fact that the list of required degrees for NOC 2162 is preceded by the word "usually." Thus she was misled into concluding that the applicant could not qualify. I agree that if the visa officer ignored the word "usually" in applying this regulation, she was wrong. The visa officer may well have made that error. Certainly her reasons suggest that she did.
[5] However, I am not sure that anything turns on that error, for the reasons below. The more important question is how the visa officer came to conclude that the applicant was not entitled to any units for experience. Counsel for the applicant argues that her conclusion in this regard is wrong in fact and law, and perverse. His argument is tied to the relationship between experience and the occupational factor.
[6] In assessing the occupational factor, the visa officer was required to ask herself what the employment opportunities are in Canada in the occupation:
| (a) for which the applicant meets the requirements for Canada as set out in NOC, |
| (b) in which the applicant has performed a substantial number of the main duties as set out in NOC, including the essential ones; and |
| (c) that the applicant is prepared to follow in Canada. |
[7] The visa officer awarded the maximum 10 units under the occupational factor. From that I must infer that she concluded that the applicant meets the NOC qualifications for employment as a computer system analyst including the educational requirements. I must also infer that she concluded that the applicant had performed a substantial number of the main duties of a computer system analyst as set out in NOC 2162, including the essential ones. How then could the visa officer have given the applicant no units for experience?
[8] The visa officer"s reasons for decision are set out in a letter dated May 25, 1998 which says:
| Your application has been refused because you have failed to demonstrate that you are qualified for your intended occupation in Canada, as defined in the NOC description. Employment requirements for this occupation, according to NOC, are a Bachelor's degree, usually in Computer Science, Mathematics, Commerce or Business Administration or completion of a College Program in Computer Science. You have a Bachelor's degree in Nursing and limited training in computer skills. Accordingly, you cannot be award any units of assessment under the Experience factor, as you have not met the requirement that you have accumulated at least one year of experience in the occupation you intend to follow in Canada. |
[9] I found this paragraph very difficult to follow. The first two sentences suggest that the visa officer concluded that the applicant's education did not meet the requirements for a computer systems analyst. But that is not consistent with what she must have concluded in order to award the applicant 10 units for the occupational factor.
[10] Counsel for the Minister argued that the occupational factor is intended to be merely a measure of occupational demand in Canada. No doubt that is so. But it also asks whether the applicant meets the employment requirements, and whether the applicant has performed a substantial number of the main duties for the intended occupation. This part of the regulation on its face requires a determination of facts relating to the applicant, as well as occupational demand in Canada.
[11] It is possible that the visa officer recognized that the applicant met the education requirements and had some relevant experience, but not enough to amount to one year. That could explain both the 10 units for the occupational factor and the zero units for experience. This explanation is consistent with the closing words of the visa officer's reasons:
| . . . you have not met the requirement that you have accumulated at least one year of experience in the occupation you intend to follow in Canada. |
[12] The applicant had given the visa officer some evidence that he had relevant experience. His computer-related experience consisted of over one year with Arksystems Inc. and over one year with Panama Goldencare Foundation Inc. Evidence relating to one or both of these jobs must have provided the visa officer with a sufficient basis to award the applicant 10 points for the occupational factor for NOC 2162. To conclude that the same evidence did not prove that he had at least one year of experience related to NOC 2162 makes no sense.
[13] I conclude that the decision of the visa officer is perverse and cannot stand. The matter will be remitted for reconsideration by a different visa officer.
[14] I will defer the issuance of a formal order to allow counsel for the Minister to make submissions as to whether there should be a certified question. Any submission is to be served and filed on or before August 30, 1999. Any response by counsel for the applicant is to be served and filed on or before September 3, 1999.
"Karen R. Sharlow"
Judge
Toronto, Ontario
August 20, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-3402-98 |
| STYLE OF CAUSE: SYDNEY FLORES DAUZ |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: THURSDAY, AUGUST 19, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: SHARLOW J. |
DATED: FRIDAY, AUGUST 20, 1999
| APPEARANCES: Mr. Cecil Rotenberg, Q.C. |
For the Applicant
Ms. Geraldine MacDonald
For the Respondent
SOLICITORS OF RECORD: Cecil Rotenberg, Q.C.
| Barrister & Solicitor |
| 255 Duncan Mill Road, Suite 808 |
| Don Mills, Ontario |
| M3B 3H9 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990820
Docket: IMM-3402-98
Between:
| SYDNEY FLORES DAUZ |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |