Date: 20020708
Docket: IMM-4667-00
Neutral citation: 2002 FCT 751
BETWEEN:
ASMA SAFIA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicant applied for permanent residence in Canada as an independent in the intended occupation Medical Lab Technologist (NOC 3211.1). She applies for judicial review of the visa officer's decision denying her application and alleges that the officer erred in concluding that the applicant had not satisfied the employment requirements for her intended occupation.
[2] The applicant is a citizen of Pakistan. Her parents and brother are Canadian residents. She has Bachelor of Medicine and Bachelor of Surgery degrees from DOW Medical College, University of Karachi, Pakistan. Since 1997, she has been employed as a medical lab technologist. This is her third application for permanent residence in Canada. Her most recent application was filed in the United Kingdom but was transferred to Cairo, Egypt because the applicant was not able to attend the interview scheduled in London, England. She was interviewed by the visa officer at the Canadian Embassy in Cairo on March 29, 2000. By correspondence dated April 5, 2000, the visa officer informed the applicant that her application was denied on the basis that she had "...not obtained any units of assessment in the occupational demand factor..."
[3] Subsection 11(2) of the Immigration Regulations, 1978, SOR/78-172, dictates that failure to obtain at least one unit of assessment for the Occupational Factor (Factor 4) of Schedule I of the Regulations constitutes a bar to the issuance of a visa. Thus, the application for judicial review turns on whether the visa officer erred in the assessment of this factor.
[4] The National Occupational Classification (NOC) system is incorporated by reference into Schedule I of the Immigration Regulations. To be awarded any points in the Occupational Factor, an applicant must meet three conditions. The applicant must satisfy the employment requirements for the occupation as described in the NOC, must have performed a substantial number of the main duties for that occupation as described in the NOC and must be prepared to follow that occupation in Canada.
[5] The "Employment Requirements" for Medical Laboratory Technologists are:
Medical laboratory technologists require a bachelor of science or medical laboratory science degree
or
a two or three-year college program in medical laboratory technology
and
a period of supervised practical training.
Certification by the Canadian Society of Laboratory Technologists is available for
medical laboratory technologists and is usually required by employers.
In Quebec, membership in the professional corporation for medical technologists is
mandatory.
[6] The visa officer, in her affidavit, deposes that she came to the conclusion that the applicant did not meet the employment requirements because her degree was not in medical laboratory science or medical laboratory technology, she had not had a period of supervised practical training and because she did not have certification.
[7] The applicant takes issue with the visa officer's assessment and alleges that the visa officer erred: (i) in failing to consider the Bachelor of Medicine degree as equivalent to a Bachelor of Science or Medical Laboratory Science degree; (ii) in finding that certification was required when it is only "usually required" and (iii) in failing to consider the year of internship and residency for the applicant's medical degree as being equivalent to the supervised training requirement.
[8] I have determined that the application for judicial review must be dismissed. The applicant's counsel submitted an articulate and compelling argument that the applicant had completed intensive supervised training to qualify for her medical degree and that such training should be transferred and considered to be equivalent or greater than the requisite supervised training required by the NOC employment requirements. The difficulty is that the applicant did not present such a position to the visa officer. Rather, when questioned about the supervised training, the applicant responded that she did not have supervised training because "there is a long line and a long queue to get formal training in government hospitals in Pakistan." This Court has determined that where an applicant wishes to rely on equivalency, it is incumbent on him or her to produce evidence to establish the equivalency: Yuan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 252 (T.D.); Velychko v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1285 (T.D.); Arumugam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 445 (T.D.).
[9] As sympathetic as I may be to the applicant's misfortune, the onus was on the applicant to satisfy the visa officer that she met the requirements. She had the opportunity to do so but did not. Had she presented her case to the visa officer as her counsel did to the Court, the result may well have been different. Unfortunately, hindsight is twenty-twenty. Since failure on this issue is fatal to the application, I need not deal with the other alleged errors. Therefore, the application for judicial review is dismissed.
___________________________________
Judge
Ottawa, Ontario
July 8, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: ASMA SAFIA v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 20, 2002
REASONS FOR ORDER of The Honourable Madam Justice Layden-Stevenson
APPEARANCES:
Mr. Krishna Mohan Veluri FOR THE APPLICANT
Ms. Anneke Smit FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mukesh Bhardwaj FOR THE APPLICANT
Barrister & Solicitor
Toronto
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada