Date: 20021128
Docket: IMM-5505-00
Neutral Citation: 2002 FCT 1223
Ottawa, Ontario, November 28, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
RADHA RANI SHARMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under section 18.1 of the Federal Court Act for judicial review of a decision dated September 11, 2000 of visa officer Mona Z. Fahmy [visa officer] of the Canadian Embassy in Cairo, Egypt, wherein the applicant was refused permanent residence in Canada.
FACTS
[2] The applicant is a citizen of India and was born on September 20, 1955.
She is married and has three children. She applied as the principal applicant, as both her and her husband qualified to do so.
[3] On August 22, 2000, the applicant attended an interview conducted by the visa officer at the Canadian Embassy in Cairo, Egypt. The applicant changed her dependants' status to accompanying. During the interview, the visa officer simultaneously took notes in the computerized record of the applicant's file
[CAIPS notes] and questioned the applicant as to her work experiences and educational qualifications.
[4] In June of 1971, she completed a Bachelor of Arts from Gorakhpur University. In June of 1973, the applicant completed a Master of Arts in Psychology and in 1979, a Ph.D. of Philosophy in Psychology both from Banaras Hindu University in Vanarasi.
[5] According to her Application for Permanent Residence in Canada Form [Application Form], the applicant is currently employed by FORE School of Management as a professor. During the interview, she amended her Application Form to add that she was currently working as a psychologist at the RM Medical Centre but, unlike her other work experiences, she could not support it by a reference letter. Otherwise, her passed work consisted mainly of occupying the positions of lecturer, reader and professor. The only other psychologist position the applicant occupied was for one and a half years, at the Training Centre for Mentally Handicapped Children. However, in her letter of reference, it is written that she is hired as a teacher and the word "psychologist" seems to have been added in a different font. She explains this by saying that initially, the director wanted her to work as a teacher only but upon her insistence, he added the word "psychologist".
[6] The visa officer did not find that the applicant qualified in the National Occupational Classification as psychologist [NOC 4151.0], Education and Policy Researchers, Consultants and Program Officers [NOC 4166.0] as she did not meet the employment requirements, nor did she qualify for Family, Marriage and Other Related Counsellors [NOC 4153.0] as she did not have any experience of its duties.
[7] Subsection 11(2) of the Immigration Regulations does not permit issuance of an immigration visa to applicants, in the class in which the applicant has applied, who have received zero units of assessment for the occupational factor. As the visa officer was unable to award any units of assessment under the occupational factor, the applicant was advised by letter dated September 11, 2000 that her application for permanent residence in Canada had been refused.
ISSUE
[8] Did the visa officer err in concluding that the applicant did not meet the employment requirements usually required by the NOC description?
ANALYSIS
Standard of review
[9] First and foremost, it is necessary to determine the standard of review applicable to a visa officer's decision. In To v. Minister of Employment and Immigration, [1996] F.C.J. No. 696 (F.C.A.), the Court held:
[para 2] The appellant's application to enter Canada as an "entrepreneur" immigrant from Hong Kong gave rise to a discretionary decision on the part of the immigration officer which was required to be made on the basis of specified statutory criteria. The appellant's intention was of establishing a business in Canada. The "ability" so required was one of the relevant criteria.
[para 3] 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 Limited v. Government of Canada et al., [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, were 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.
[10] This Court had held that the decision of the visa officer is discretionary in nature. The question of whether the applicant has the qualifications or experience in the occupation under which the applicant has applied is a factual one. The fact that the Court may have reached a different conclusion on the evidence does not permit the Court to intervene in a discretionary decision lightly. Therefore, it would seem that the standard of review for a visa officer is that of patently unreasonable.
Did the visa officer err in concluding that the applicant did not meet the employment requirements usually required by the NOC description?
[11] Yes, the visa officer erred in concluding that the applicant did not meet the employment requirements usually required by the NOC description.
Work experience
[12] Factor 4 of Schedule 1 of the Immigration Regulations, 1978, SOR/78-172, [Schedule 1] reads:
(1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation
(a) for which the applicant meets the employment requirements for Canada as set out in the National Occupation Classification;
(b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and
(c) that the applicant is prepared to follow in Canada.
[13] In light of the visa officer's affidavit and the CAIPS notes, it appears that she concluded that the applicant does not meet the education and training requirements for a psychologist, as she was not submitted to a period of supervised practical experience, which is usually required according to the NOC handbook, nor does she meet the education and training requirements for education and policy researcher, consultant as she does not have a teacher's certificate, which is also usually required according to the NOC handbook.
[14] The visa officer should have considered if there were significant factors which would make it probable for the applicant to overcome the absence of those usual requirements.
[15] In Karathanos v. Canada (Minister of Citizenship and Immigration), (1999), 3 Imm. L.R. (3d) 106, (1999) 176 F.T.R. 296, [1999] F.C.J. No. 1528, the Honourable Justice Sharlow established that in employment requirements, "usually required" does not mean required. This was later confirmed in Chaudhary v. Canada (Minister of Citizenship and Immigration), (2000) 6 Imm. L.R. (3d) 114, (2000) 192 F.T.R. 127:
[para. 23] This Court held in Xiao v. Canada (M.C.I.), [1999] F.C.J. No. 1948, (December 13, 1999), IMM-1845-99 (F.C.T.D.):
In the present case, the applicant lost points on the occupational factor and experience and not the educational requirement. Although it is true that "is usually required" under the education requirements is mandatory, it is not the case in the employment requirements as described in the jurisprudence and the NOC Handbook.
The visa officer interpreted "is usually required" as mandatory and concluded that the applicant did not have any graduate studies in a related discipline. The visa officer erred in this regard.
[para. 24] In reading the employment requirements as mandatory when the NOC states that they are not, the visa officer erred.
[emphasis added]
[16] As to the period of supervised practical experience, the applicant stated at paragraph 21 of her affidavit that she indeed satisfied the psychologists' requirement when she worked under supervision of a senior psychologist during her Master's and Ph.D.
[17] As to the teaching certificate for the province of employment, I think it should be easy for the applicant to obtain, due to her extensive teaching experience as a professor and lecturer.
[18] After reviewing the applicable case law, I find that the visa officer erred in concluding that the applicant had not the employment requirements of either a psychologist or an education and policy researcher, consultant. In light of the evidence presented by the applicant, I am of the opinion that the visa officer's decision was patently unreasonable.
O R D E R
[1] Therefore, this application for judicial review is granted and the case is referred back for reconsideration by another visa officer in light of this order.
[2] Neither counsel suggested any question for certification.
"Pierre Blais"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5505-00
STYLE OF CAUSE: Radha Rani Sharma v. MCI
DATE OF HEARING: November 14, 2002.
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: Blais J
DATE: November 28, 2002
APPEARANCES BY: Mr. Max Chaudhary
For the Applicant
Mr. Robert Bafaro
For the Respondent
SOLICITORS OF RECORD: Ms. Rose Legagneur
Worldwide Immigration Consultancy Services
7025 Tomken Road
Suite 231
Mississauga, Ontario
L5S 1R6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent