Date: 20000330
Docket: IMM-1092-99
BETWEEN:
FAROKH ZAMYADI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review under subsection 82.1(2) of theImmigration Act1 (theAct) of a decision of Ms. Umit Ozguc, a visa officer at the Canadian Embassy in Ankara, Turkey, dated January 6, 1999, refusing the applicant"s application for permanent residence in Canada.
[2] The applicant is a citizen of Iran. He submitted2 his application for permanent residence in Canada under the Independent Skilled Worker category of the Act and theImmigration Regulations3 (the Regulations) as a hydrologist.
[3] The applicant has a diploma in Mathematics, Statistics and Computing obtained in England and has worked as a hydrologist expert for Mahab Gods Consulting Engineers since 1984.
[4] The applicant and his spouse were interviewed on September 30, 1998. The applicant was assessed against both the Canadian Classification and Dictionary of Occupations ("CCDO") and the National Occupational Classification ("NOC") criteria since his application was received before May 1,1997.4
[5] The visa officer determined that the applicant"s education did not meet Canadian immigration requirements under both the CCDO and NOC category, hydrologist because his application was received before May 1, 1997. As a result, the visa officer could not award the applicant any units of assessment for occupational experience. Subsection 11(1) of theRegulations provides that a visa officer may not issue a visa to applicants who have not been awarded any units of assessment for the factor "experience".
[6] The visa officer also assessed the applicant in the alternate occupation of "hydrology technician". The applicant was awarded 64 units of assessment.
[7] Therefore, the visa officer refused the applicant"s application for permanent residency by letter dated January 6, 1999.5
[8] The applicant submits that the visa officer erred in law in its assessment of the educational qualifications of the applicant as a hydrologist under the CCDO and erred in law by failing to assess the applicant"s spouse in the category of dressmaker.
ANALYSIS
| a) Education |
[9] The NOC classification system indicates that a university degree in geology, geochemistry, geophysics or a related discipline is required.6
[10] In the case at bar, the visa officer determined that the applicant"s two year post secondary diploma in Math and Statistics was not sufficient to meet the educational requirements under "hydrologist" as set out in the NOC classification systems.
[11] Under the CCDO classification system, the description for "hydrologists 2112-122" located under "Geologists and Related Sciences", reads as follows:
| Geologists and Related Scientists normally require: |
| - a bachelor of science or geology degree, supplemented by on-the-job experience extending over two or more years; |
| - a master"s degree, usually, for a position in applied research in a government or industrial research setting, or for a laboratory teaching position in a university or community college; |
| - a Ph.D for more-advanced positions in basic research.7 |
[12] The CCDO Guide indicates that the specific vocational training includes training given in University or College training, vocational training, apprenticeship, in-plant training, on-the-job training and experience in other jobs.8
[13] The applicant submits that the visa officer erred in making the education requirement an "absolute" requirement under the CCDO. Because the CCDO uses the word "normally requires" there should be more flexibility in the assessment.
[14] In my opinion, the words "normally requires" indicate that unless there are persuasive or special circumstances, it is a requirement to be met.
[15] In the case at bar, it was certainly within the visa officer"s discretion to determine after interviewing the applicant that there was no special element that would overcome his lack of formal training.
[16] I am therefore satisfied that the visa officer did not err in law and applied the appropriate criteria in assessing the applicant"s educational requirements for a hydrologist under both classification systems.
| b) Evaluation of the principal applicant"s spouse |
[17] The selection criteria applicable to independent class immigrants provided by subsection 8(1) of the Regulations9 reads as follows:
| Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant"s dependents, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant. [My emphasis]. |
Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint. (mon soulignement). |
[18] In Nanji v. MEI,10 this Court held that it is the responsibility of the applicant to designate who is to be assessed as principal applicant: "The visa officer is not required to assess both the applicant and his spouse as submitted by the applicant. Rather s. 8(1) makes it mandatory for the visa officer to assess only one or the other".11
[19] In the case at bar, the applicant chose to be assessed as principal applicant. Thus, the visa officer was under no legal obligation to assess the spouse.
[20] However, the applicant submits that if a visa officer undertakes a responsibility which is not legally required, procedural fairness requires that he make a thorough evaluation and not dispose of it summarily. I agree.
[21] It is clear that jurisprudence has recognized that several factors are relevant to determining what is required by the duty of procedural fairness. One of those factors as noted in Baker v.Canada (Minister of Citizenship and Immigration12 is the importance of the decision to the individual or individuals affected. It therefore follows that the content of the duty of fairness requires that in the present circumstances the decision-maker make a thorough assessment of the potential immigrant.
[22] In the present case, I am of the view that once a visa officer assumes the responsibility of assessing a potential immigrant, he incurs the corollary duty of procedural fairness given that a negative decision by the visa officer has a serious impact on the potential immigrant"s life.
[23] For these reasons, the file is sent back for a redetermination of the spouse experience either as a seamstress or dressmaker.
[24] Counsel for the applicant has requested that the following question be certified:
| If a visa officer voluntarily undertakes a responsibility which is not legally required, is the visa officer"s decision subject to the definition of procedural fairness? |
[25] Since questions of procedural fairness have been the subject of numerous decisions, the court is not convinced that this is a serious question of general importance. Therefore, the court will not certify the question.
(Sgd.) "Danièle Tremblay-Lamer"
Judge
VANCOUVER, BRITISH COLUMBIA
March 30, 2000.
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1092-99
STYLE OF CAUSE: Farokh Zamyadi
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 27, 2000
| REASONS FOR ORDER OF Tremblay-Lamer, J. |
DATED: March 30, 2000
APPEARANCES:
| Ms. Catherine A. Sas For the Applicant |
| Ms. Emilia Pech For the Respondent |
SOLICITORS OF RECORD:
Catherine A. Sas
Barrister and Solicitor
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
2 The application was first submitted to the Canadian Consulate in Buffalo, New York and transferred to Ankara on April 29,1997.
4 Pursuant to s.2.03 Transitional Provisions,Immigration Regulations, 1978, SOR/97-182, s.3., a Visa Officer is required to make an assessment under the CCDO and, if the case is unsuccessful, to then assess the case under the NOC system.
5 Certified Tribunal Record at pages 41-42.
6 Respondent "s Application Record at page 6.
7 Canadian Classification and Dictionary of Occupations, 1971, Respondent"s Application Record at page 18.
8 Respondent "s Application Record at page 27.