Date: 20010123
Docket: IMM-3730-99
Between :
CHALABY, Farid Tadros
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of G. Sutherland, a visa officer at the Canadian Embassy in Cairo, dated June 24, 1999, determining that the applicant comes within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The applicant is a citizen of Egypt. He submitted his application for permanent residence in the Independent category in the occupation of nutritionist.
[3] The applicant was indeed assessed in the Nutritionist occupation (NOC #3132). At the conclusion of the interview and in a letter dated April 29, 1999, the visa officer gave the applicant six weeks to address two concerns. Firstly, the applicant did not seem to meet the education requirements for a nutritionist. Secondly, the applicant did not have the required supervised practical training. The applicant having failed to convince the visa officer in his response to these concerns, his application was consequently refused by letter dated June 24, 1999. He was awarded zero units of assessment for the experience factor and one point for the occupational factor. In his decision, the visa officer explained:
| I was unable to allocate any units of assessment for experience as Mr. Chalaby would not be considered a qualified Nutritionist in Canada. Irrespective of the units of assessment he has achieved, section 11(2) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants, in the class in which he has applied, who have received zero units of assessment for the factor of experience. . . . |
[4] The Supreme Court of Canada's judgment in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, did not change the applicable standard of review with respect to decisions regarding immigrant visas. As has been clearly established by the Federal Court of Appeal in Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the appropriate standard of review for discretionary decisions of visa officers with respect to immigration applications is the same as that enunciated by the Supreme Court of Canada in Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, where Mr. Justice McIntyre states at pages 7 to 8:
| . . . 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, where 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. . . . |
[5] The first issue to be dealt with involves the visa officer's assessment of the applicant's experience. Pursuant to subsection 11(1) of the Immigration Regulations, 1978, SOR/78-172, as amended by SOR/93-44, regardless of the total units of assessment, a visa officer cannot issue a visa in the event of a zero assessment in the experience factor.
[6] The visa officer made the following statement with respect to the experience and educational factors for the occupation of a nutritionist:
| I must disagree that the educational and training requirements for dieticians and nutritionists are entirely different. The National Occupational Classification (NOC) states they "are usually the same". For our purposes this means applicants must meet them unless there are significant and substantial factors that would, in a visa officer's judgement, make it likely that the applicant will be able to overcome this requirement. In my judgement I do not believe the applicant would be able to overcome these shortcomings in education and supervised practical training as outlined in my letter of April 28, 1999. |
| I do not concur that two years practicing since 1994, in a clinic in Egypt where there is no trained nutritionist, is the equivalent of one or two years of supervised practical training, as stated in your letter. |
[7] In order to practice as a nutritionist in Canada, according to the applicable requirements, one must have usually benefited from "one to two years of supervised practical training". As the applicant did not benefit from any supervision during his two years of work, it was reasonable and consistent with a correct application of these requirements for the visa officer to conclude that his work did not qualify for purposes of this assessment (see, for example, Hara v. Minister of Citizenship and Immigration (August 26, 1999), IMM-6307-98).
[8] With respect to the second issue, educational background, the visa officer concluded the following:
| As I explained on interview, I do not believe you meet meet the education requirements for a nutritionist specified in the National Occupational Classification (NOC) manual which is a bachelor or masters degree in dietetics, nutrition or a related field such as food and nutritional science or biochemistry. Although you have a diploma and certificate in nutrition, in addition to your medical and surgical education, it is my opinion that this is not equivalent to a bachelor's or master's degree in nutrition. |
[9] Justice Pelletier accurately summarizes the role of a visa officer in making judgement calls in Luliang v. Minister of Citizenship and Immigration (September 20, 1999), IMM-6462-98, at paragraph [20]:
| If the function of the Visa Officer is to implement the policy imbedded in Schedule 1, then screening should be done with a view to accurately reflecting the employment potential of candidates. In particular this suggests that the assessment of qualifications should reflect the expectations of a Canadian employer, acting reasonably and in good faith. . . . |
[10] With this in mind, I am of the opinion that a Canadian organization seeking to hire a nutritionist would require a person whose academic credentials reflected a study of nutrition at a level which would give reason to believe that he or she had obtained a significant proficiency in this field. Such an employer, acting reasonably and in good faith, would not accept the applicant's medical degree as the equivalent of a "a master's degree or bachelor's degree in dietetics, nutrition or a related field such as food and nutritional science or biochemistry". I agree with the respondent's submissions that the few courses on nutrition and biochemistry taken by the applicant during the course of his degree in medicine simply cannot be compared with a three-year specialization on these topics alone.
[11] Finally, with regards to the applicant's submission that the visa officer erred in not assessing him under the CCDO, I do not agree. The applicant did not demonstrate that the application was sent in prior to the cut-off date of May 1st, 1997, as required by Immigration Canada in its Operations Memorandum dated May 1st, 1997:
| The Transitional Provisions, as set out in Section 2.03 of the proposed Regulations, oblige CIC to assess all cases which are received but not assessed prior to May 1 against the CCDO and the GOL as it read before May 1. In the interest of Procedural Fairness, mail-in cases which clearly bear a postmark prior to May 1 should be coded as received on April 30, provided that the application and cost recovery fees are complete. . . . |
[12] Upon reviewing the evidence, I can find nothing to substantiate the applicant's submission that his application was filed prior to May 1st, 1997. I cannot agree that the deposit dated March 9, 1997 or that the correspondence between the applicant and the embassies amount to evidence as to the moment the application was filed. In fact, the only evidence of the London office ever receiving the application is an inter-office e-mail dated May 13, 1997. The onus being on the applicant (subsection 8(1) of the Act), I cannot agree with the applicant's submission on this point. This conclusion is consistent with previous judgments of this Court. For example, in Chen v. Minister of Citizenship and Immigration (February 26, 1999), IMM-2001-98, Blais J. found as follows:
| [22] The cut-off date for application of CCDO criteria is May 1, 1997. The applicant points to a money order dated April 25, 1997 and a letter of submission dated April 28, 1997 to show that the application was filed before May 1, 1997. |
| [23] However, these documents are no indications of the moment the application was filed. The applicant submits that the application was sent by Federal Express but no receipt indicating the date of delivery was filed as evidence. |
| [24] The evidence shows that the applicant's application was received on May 6, 1997 (Tribunal record pp. 4, 58). Without any further evidence from the applicant, the Court has to find against the applicant since the onus is on the applicant. |
| [25] Therefore, the visa officer was correct in applying the NOC criteria which took effect May 1, 1997. |
[13] For all the foregoing reasons, the intervention of this Court is not justified and the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
January 23, 2001