Date: 20011001
Docket: IMM-88-01
Neutral citation: 2001 FCT 1077
BETWEEN:
SALMAN AHMED BABER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review made pursuant to subsection 82.1(1) of the Immigration Act, R.S.C., c. I-2, as am., from a decision of visa officer Heidi Hanf, Canadian High Commission, Islamabad, Pakistan, rejecting Salman Ahmed Baber's application as an independent applicant for permanent residence in Canada.
[2] The applicant has also brought a motion for contempt of court under Rule 466c) of the Federal Court Rules, 1998.
[3] The applicant is a citizen of Pakistan. He obtained a Masters of science in Applied Psychology from the University of the Punjab in 1990. He has a consulting business (Mian Atta Ullah Psychic-Care Centre) that was established in 1991 and since 1993, he has also been a lecturer in Psychology at the Government College Jhang where teaching and research have been his primary activities.
[4] The application for permanent residence which is the subject of the current proceedings is not the first that the applicant has filed. His first application was refused by letter dated April 1, 1997. The applicant then filed a new application on August 28, 1997. In this application, he indicated that his intended occupation in Canada was psychologist, as defined under heading 4151.0 of the National Occupational Classification ("NOC"). The application was refused by letter dated June 2, 1999 due to the applicant's lack of experience. In September 1999, the applicant requested that the application be re-opened for re-consideration. This request was granted and he attended an interview with visa officer Heidi Hanf on September 6, 2000 in order to verify if the applicant met the requirements of psychologist as defined by NOC 4151.0. More specifically, the purpose of this interview was to establish whether the applicant is simply a teacher, or whether he conducts research and does counselling (Respondent's record, Tab B at p. 137). The visa officer rejected the application by letter dated September 19, 2000. It is of this decision that the applicant has filed an application for judicial review.
[5] The applicant was accessed against the requirements for psychologist (NOC 4151.0). NOC 4151.0 reads as follows:
Psychologists diagnose psychological and emotional disorders, counsel clients, provide therapy and research and apply theory relating to behaviour and mental processes. Psychologists work in private practice or in institutions such as clinics, correctional facilities, hospitals, rehabilitation centres, schools and universities.
Examples of titles classified in this group
Clinical psychologist, Experimental psychologist, Psychologist, Research psychologist.
Main Duties
Psychologists perform some or all of the following duties:
- Examine behaviour, diagnose psychological and emotional disorders, counsel clients and provide therapy
- Counsel individuals and groups to achieve more effective personal, social and vocational development and adjustment
- Apply psychological theory and principles regarding behaviour and mental processes such as learning, memory, perception and language development
- Formulate hypotheses and experimental designs, review literature, conduct studies and publish research papers.
Psychologists may specialize in clinical psychology or experimental research. They may also specialize in specific areas such as behavioural psychology, child psychology, cognitive psychology, developmental psychology, educational psychology, industrial psychology, neuropsychology, social psychology or sports psychology.
Employment Requirements
- A doctoral degree in psychology is required in Prince Edward Island, Nova Scotia, Ontario, Manitoba, Saskatchewan and British Columbia.
- A master's degree in psychology is required in Newfoundland, New Brunswick, Quebec, Alberta and the Northwest Territories.
- A period of supervised practical experience is usually required.
- Successful completion of provincial written and/or oral examinations is usually required.
- A provincial certificate of registration is required in all provinces and the Northwest Territories.
- In Quebec, membership in the professional corporation for psychologists is mandatory.
- Psychologists become specialized in a particular area through training and experience.
[6] The units of assessment awarded to the Applicant for each of the selection criteria were:
Age: 10
Occupational Factor: 00
E.T.F.: 18
Experience: 06
Demographic factor: 08
Education: 15
English: 06
French: 03
Bonus: 00
Suitability: 02
Total: 68
[7] The visa officer did not award the applicant any units of assessment under the occupational factor because he did not have the qualification listed by the NOC. She concluded that the applicant did not meet the requirements for psychologist as set out in NOC in light of his intended destination of Toronto (a doctoral degree in psychology is required in Ontario). She also said that based on the information received from the applicant, she was not satisfied that the applicant had performed a substantial amount of the main duties as described under the NOC. Finally, the visa officer also assessed the applicant as a professor under NOC 4121. There too, the applicant needed a Doctoral degree to be qualified, which he didn't have. For these reasons, the visa officer turned down the application. She also further relied on section 11 of the Immigration Regulations, 1978, (SOR/78-172, as am.) to refuse the application.
[8] The applicant, representing himself, was unable to attend the hearing and requested that the Court consider only his written submissions.
[9] In his application the applicant refers to all three visa officer decisions. Although it is true that there seems to be a few inconsistencies between the three decisions, it is only the latest decision of September 19, 2000, rendered by Heidi Hanf, that is the subject of judicial review. Although it is acceptable for a visa officer to consult previous decisions (Shahwan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 785 at para. 20-21 (QL), the visa officer was not bound by the previous decisions and she had to decide on the basis of the evidence before her. This ensures that the applicant's application is given an independent review and the officer who consults the notes does not pre-judge the application prior to the applicant's interview.
[10] At the outset, I will remind that it is well established that the determination of the number of points to be awarded under the factors found in Schedule 1 of the Regulations is a question of fact within the scope of the visa officer's expertise and should be accorded a high degree of deference.
[11] The onus is on the applicant to demonstrate that a discretionary decision of the visa officer is unlawful. It is for the applicant to bring forth evidence or argument as to why the decision is unlawful (Williams v. Canada), [1997] 2 F.C. 646 (C.A.) at p. 675).
[12] As pointed out by the respondent under the Regulations:
a) Under s. 11(2)(b) a visa shall not be issued unless an immigrant has arranged employment in Canada. The applicant did not provide any evidence that he had secured employment in Canada
b) Under s. 11(2)(a) a visa shall not be issued unless an immigrant obtains at least one unit of assessment for the fact set out in item 4 of column I of Schedule I, which is occupational requirement. The applicant has not met the occupational requirements under the NOC and was awarded zero points accordingly. (Respondent's application record, Vol. II, at p. 10).
[13] The applicant was unable to meet the mandatory requirement of holding a doctoral degree in psychology necessary pursuant to NOC 4151 and 4121.
[14] By not meeting this mandatory requirement, the applicant was awarded zero points for occupational requirements. Even if there was an error in awarding points for language and personal suitability, pursuant to paragraph 11(2)(a), the visa officer could not issue a visa.
[15] The fact that the respondents did not tell the applicant about the doctoral degree requirement doesn't make the visa officer's decision unfair. It was the applicant's responsibility to prove that he met the criteria set out in the rules and regulations (Yu v. Canada (Minister of Employment and Immigration) (1990), 36 F.T.R. 296).
[16] For these reasons, the application for judicial review is dismissed.
MOTION FOR CONTEMPT OF COURT
[17] The applicant submits that visa officer Heidi Hanf has committed perjury at paragraphs 12 and 17 of her affidavit and consequently has impaired the dignity of this Court.
[18] Paragraphs 12 and 17 of the visa officer's affidavit simply state that the visa officer considered all the information provided by the applicant.
[19] Sections 466-472 of the Federal Court Rules, 1998 deal with contempt of Court proceedings.
[20] An allegation of contempt of court is a matter of criminal or quasi-criminal dimension and a finding of contempt shall be based on proof beyond a reasonable doubt (R. 469) (Lyons Partnership, L.P. v. MacGregor) (2000), 186 F.T.R. 241 at p. 245).
[21] The constituent elements of contempt are the following: (a) a defendant's actual personal knowledge of the court's order; (b) the defendant is the primary actor either actually or by express or implied authorization; (c) the required degree of mens rea (Ibid.).
[22] In the case at bar, the applicant has not succeeded in proving these elements.
[23] The motion is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
October 1, 2001.