Date: 20000906
Docket: IMM-2358-99
Between :
TATIANA ZARAISKAIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of S. K. Brady, an immigration officer at the Canadian Consulate General in Detroit, Michigan, dated April 1, 1999, holding that the applicant did not meet the requirements for permanent residence in Canada.
[2] The applicant is a citizen of Russia. On March 31, 1999, she submitted an application for permanent residence in the independent category. On her application, the applicant indicated that her intended occupation in Canada was that of "Physicist".
[3] By letter dated April 1, 1999, the visa officer refused the applicant's application. In her decision, the visa officer assessed the applicant in the occupation of "student" and awarded the following units of assessment:
| Age 10 |
| Occupational Factor 00 |
| Education/Training Factor 00 |
| Experience 00 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 16 |
| English 09 |
| French 00 |
| Bonus 00 |
| Personal Suitability 06 |
| Total 49 |
The visa officer also stated as follows:
| You declared and confirmed numerous times that you will continue to be a full-time student for at least three more years. You presented two letters from the University of Guelph which supported this. You had no offer for employment in Canada other than as a teaching assistant and research assistant, each of which would be dependent upon your enrolment and participation in full-time Ph.D. studies. . . . |
| At the interview, you had an opportunity to address my concerns about whether you were intending to work or study. You confirmed again that you do intend to pursue a full-time program of study for at least three years. Considering the information which you provided and confirmed multiple times, I believe that you do not intend to enter the labour force in Canada. |
[4] The visa officer also assessed the applicant in the occupations of research assistant and teaching assistant. Neither assessment met the "minimum selection criteria". As the visa officer awarded zero units of assessment for both experience and occupational factor, the applicant's application was automatically refused.
[5] Decisions of visa officers are discretionary. One of the most frequently cited cases concerning the standard of review to be applied in this context is To v. Minister of Citizenship and Immigration (May 22, 1996), A-172-93 (F.C.A.). In To, Stone J.A. imported the principles articulated by the Supreme Court of Canada into the immigration context:
| Here, the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court: |
| . . . It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. . . . |
| In our view, these requirements, to the extent that they apply, have been met in this case. Accordingly, no basis has been shown for interfering with the decision of the Trial Division. |
[6] The issues in this matter are:
| 1. Did the visa officer err in concluding that the applicant's offers of employment were contingent on her enrollment as a Ph.D. student, and that this experience could not therefore be counted as proper work experience in her field? |
| 2. Did the visa officer err in "reading in" the requirement that the applicant provide evidence of an intent to immediately enter the labour force in Canada as a physicist? |
[7] With respect to the first issue, the applicant's argument that her research and teaching assistantships were not dependent on her enrollment at Brock University is without merit. The letter from the Department of Physics, dated March 22, 1999, states:
| The Physics Department is prepared to guarantee you $17,200.00 per annum for nine semesters (3 years of full-time study) in support of your graduate studies in the Biophysics Interdepartmental Group (BIG) Program. This funding will be in the form of Graduate Teaching Assistantships and Graduate Research Assistantships. In addition, Professor Ross Hallett, the Director of the BIG has stated that in the first year of your Ph.D. program, you will receive an additional scholarship valued at $2,000.00. |
[8] This letter indicates that the applicant's research and teaching positions are tied to her enrollment at Brock University, as they are specifically intended to provide funding for her studies. In fact, the characterization of the $2000 scholarship as an "additional scholarship" implies that the assistantships are themselves a type of scholarship.
[9] Regardless, I do not think that the visa officer erred in refusing to assess the applicant as a physicist. According to Schedule I of the Immigration Regulations, 1978, SOR/78-172 (the Regulations), units of assessment for the occupational factor "shall be awarded on the basis of employment opportunities in Canada in the occupation . . . (c) that the applicant is prepared to follow in Canada" [my emphasis]. In the French text, the underlined portion appears as "est prêt à exercer". In my opinion, the visa officer's conclusion that the applicant was not prepared to follow the occupation of physicist in Canada was reasonably open to her on the evidence. Consequently, I do not think that she was required to assess the applicant as a physicist.
[10] In this context, I do not consider that the visa officer erred in giving the applicant zero units of assessment for experience because, according to Schedule I, Factor 3 of the Regulations, units for experience are awarded in the occupation in which the applicant is assessed under the occupational factor. Accordingly, the visa officer having found that the applicant intended to be a student in Canada, she could not credit the same for experience as a physicist.
[11] Concerning the second issue, the applicant relies on Margarosyan v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm.L.R. (2d) 53 (F.C.T.D.), in support of the principle that nothing in the Immigration Act, R.S.C. 1985, c. I-2 or Schedule I of the Regulations requires an applicant for permanent residence in the independent category to provide evidence of an intention to work in his or her stated occupation immediately upon arrival in Canada.
[12] The respondent's position is that the applicant's teaching and research assistantships were inseparable from her enrollment in a three-year academic program. Therefore, the applicant's intention was to study, not to work.
[13] In my opinion, the applicant's argument that the visa officer read in the requirement that she enter her intended occupation immediately, is unfounded. I think that this case can be distinguished from Margarosyan, supra, on the facts. Specifically, whereas the visa officer in Margarosyan found that the applicant had no intention to become self-employed "upon arrival in Canada", the visa officer in this case concluded that the applicant simply had no intention of working in her stated occupation. The visa officer asserts in her decision that "[c]onsidering the information which you provided and confirmed multiple times, I believe that you do not intend to enter the labour force in Canada". In the CAIPS notes, she wrote:
| INTENDING STUDENT. . . . |
| . . . HAS TO BE WILLING AND ABLE TO WORK IN CDA IN HER INTENDED OCCUP AND, AT THIS TIME, SHE IS NOT WILLING AND DOES NOT INTEND TO WORK IN THAT OR ANY OTHER OCCUP. CLEARLY A STUDENT, NOT WORKER. . . . |
[14] Nothing in the visa officer's decision or the CAIPS notes indicates that the applicant intended to work as a physicist at any time following her arrival in Canada. In fact, it appears that the applicant herself, when questioned about her intentions after graduation, indicated that she had explored the possibility of seeking employment not as a physicist, but as a teacher. Therefore, the applicant's argument on this point must fail.
[15] In light of all the above, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
September 6, 2000