Date: 20000821
Docket: IMM-1083-99
BETWEEN:
SHOBHA GANGADEEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of a decision of the Immigration Officer of the Canadian Embassy in Paris, France dated January 27, 1999, wherein she refused the applicant's application for permanent residence.
[2] The issues are whether the Immigration Officer erred: (i) in its assessment of the applicant's education; (ii) in applying the Canadian Classification and Dictionary of Occupations [herein CCDO] informally; and (iii) in refusing to assess the applicant under section 11(3) of the Immigration Regulations, S.O.R/78-172.
[3] In respect of the first issue, the respondent appears to have inadvertently omitted to give the applicant an opportunity to provide the education documents required in order to make the decision. At paragraph 6 of her affidavit, the immigration officer states that, "on October 23rd, 1998 a list of documents and information to submit" was forwarded to the applicant. She states that the list included, "a certified true copy of her high school graduation diploma". However, there is no such request for a copy of a high school graduation diploma in the request sent on October 23, 1998.
[4] The applicant's counsel sent a letter dated January 8, 1999 to the Canadian Embassy Immigration Section in Paris, enclosing several documents to assist the immigration officer in making her decision. The letter indicates the enclosure of, inter alia, the applicant's "original job reference letter and copies of school certificates". The respondent submits that this statement indicates that the applicant knew that there was a request that school certificates be sent to the Immigration Section. I cannot agree. There is no copy of the diploma in the file and no reason to believe it was added later. It appears that the immigration officer intended to request it but inadvertently forgot to include the request in the letter of October 23, 1998. The CAIPS notes would seem to confirm the inadvertence of this error. The diploma should be forwarded to the immigration officer who will redetermine this matter.
[5] I will now address the third issue, namely: Did the immigration officer err in refusing to assess the applicants under s.11(3) of the Immigration Regulations? In her letter of application on behalf of the applicant dated September 17, 1996, the applicant's counsel states:
| I ask that you consider waiving her interview in light of work experience and education in Canada. If an interview is required, I ask that you kindly arrange for Ms. Gangadeen's interview to be scheduled at the Canadian Consulate in Detroit. If necessary, please apply Regulation 11(3) discretion in a positive manner in light of the aforementioned. |
Section 11(3) was not mentioned in the letter of refusal dated January 27, 1999 nor is it mentioned in the CAIPS notes.
[6] In Savvateev v. M.C.I., [1999] F.C.J. No. 922 (T.D.), McGillis J. reviewed the jurisprudence with respect to section 11(3) of the Immigration Regulations. She set out Rothstein J.'s comments in Lam v. Canada (M.C.I.), [1998] F.C.J. No. 1239 (T.D.), particularly where he stated:
| Where an applicant has reason to believe that he or she may be established in Canada irrespective of the units of assessment determination, he or she should apply for a determination under subsection 11(3) setting forth relevant reasons . |
McGillis J. stated at paragraph 9:
| Although I am in general agreement with comments made by Rothstein J., his requirement that "some form of application" is required where an applicant wishes a visa officer to exercise his or her discretion under subsection 11(3) must be read in the context of the facts before him, in which the applicant had no experience whatever in his intended occupation. |
She went on to say at paragraph 10:
| Having considered the submissions of counsel and the jurisprudence, I am of the opinion that the visa officer ought to have considered whether to exercise her discretion to issue a visa to the applicant under subsection 11(3) of the Regulations, given the facts revealed in the application for permanent residence. |
[7] In my view, the applicant in the case before me made the necessary request with reasons as required by section 11(3) in her counsel's letter, dated September 17, 1996. The request and the reasons for it could have been made more clearly. However, they were made adequately. The immigration officer made a reviewable error in ignoring this request.
[8] The respondent should also formally consider the applicant under the CCDO in the occupation of secretary.
[9] The application for judicial review is allowed. The matter is returned to a different immigration officer for redetermination in a manner not inconsistent with these reasons.
"W.P. McKeown"
JUDGE
Ottawa, Ontario
September 21, 2000