Date: 200008011
Docket: IMM-1204-99
BETWEEN:
JOSEPH ROZARIO and
ROWENA DELICIA ROZARIO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an application by Joseph Rozario and Rowena Delicia Rozario (the "applicants") for judicial review of the decision of visa officer Amitys Salas (the "visa officer") dated February 1, 1999. The visa officer denied the applicants" immigrant visas under the independent category.
[2] On April 21, 1997, the applicants each filed an application for immigrant visas and paid the required fees. The applications were filed through the Canadian High Commission in Columbo, Sri Lanka. The husband"s application showed him as principal applicant and his wife and two children as accompanying dependants. The wife"s application showed her as the principal applicant and her husband and two children as accompanying dependants.
[3] Mr. Rozario requested assessment in the occupations of Sales Promotion Administrator (CCDO 1179-154, NOC 4163) and Travel Agent (CCDO 1179, NOC 6431). Mrs. Rozario applied as an accompanying dependant on her husband"s application and stated that she intended to pursue the occupation of secretary. On her own separate application, Mrs. Rozario stated that her intended occupation in Canada was secretary (4111-110).
[4] The principal application was assessed as follows:
| Age 10 |
| Occupational Demand 01 |
| Vocational Preparation 15 |
| Experience 06 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 10 |
| English 09 |
| French 00 |
| Personal Suitability 03 |
| Total 62 |
[5] By a decision dated February 1, 1999, the visa officer informed the applicants that their applications had been refused. The basis for the refusal was the fact that the principal applicant had not been awarded the minimum 70 units of assessment.
[6] There was no indication in the decision that the visa officer had assessed Mrs. Rozario in her desired occupation, nor was there any mention of such an assessment in the CAIPS notes.
[7] The visa officer gave two versions of her assessment of Mrs. Rozario. In her statutory declaration, declared on May 11, 1999 at Paris, France, she stated in paragraph 8:
| 8. Alternatively, I also assessed Mrs. Rowena Rozario, although the principal applicant on this file is her husband. Mrs. Rozario has been a housewife looking after her family since 1989 and prior to that her work experience consisted of secretarial duties. She was unable to meet the selection criteria. |
[8] In cross-examination on her statutory declaration on August 10, 1999, she deposed, in part, as follows:
Q. Okay. Is there any record in your notes about an assessment of Mrs. Rosario and her intended occupation?
A. In my case notes if you see you will see that it, if you pay attention to my case notes you will see that I assessed Mrs. Rosario informally. If she is just . . . at this point she is just a dependant and a companion dependant and not the principle (sic) applicant. They have not paid the appropriate fee for her to be assessed officially. Nevertheless, they are always looking for good applicants for Canada. I try to have a look informally at her profile and she whether she could apply as principle (sic) applicant and yes, I did look at her and I didn"t find her a successful applicant either. And against if you explain to me your relevance of this case?
. . .
A. Yes, it"s true. Through the CCDO definition she had to have . . . have trained in shorthand and stenography and things like that.
Q. Did you explore her experience to see if it cohered with those aspects of that definition?
A. Since she was not the principle (sic) applicant I did not have a very lengthy interview with her going to over but when nevertheless I just assessed globally her case and her profile.
Issue
[9] Did the visa officer make a reviewable error in her disposition of Rowena
Rozario"s request to be assessed as a secretary?
Law and Analysis
[10] The law with respect to the assessment of an application is found in part in
subsection 8(1) of the Immigration Regulations, 1978, SOR/78-172, as amended:
| 8.1 Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant . . . |
| 8.1 Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint . . . |
[11] This Court has given effect to this provision of the Immigration Act on many
occasions and held that it is the applicant who decides who is to be assessed as principal applicant: Nanji v. Canada (Minister of Citizenship and Immigration), August 6, 1993 (Docket IMM-1749-92); Mozumder v. Canada (Minister of Citizenship and Immigration), March 21, 1997 (Docket IMM-2766-95). There is no requirement that the visa officer assess both the applicant and his spouse and in fact, subsection 8(1) of the Regulations states that the visa officer shall assess the applicant "or, at the option of the immigrant, the spouse of that immigrant."
[12] The applicants, in their presentation to the Court, also argued that the visa officer
did not assess Rowena Rozario"s individual application. It is not necessary to decide that issue in the application as the application can be dealt with on the basis that an incomplete assessment was done of Rowena Rozario as the spouse of the applicant, Joseph Rozario.
[13] This Court has held that once a visa officer undertakes the responsibility of
assessing an immigrant, procedural fairness dictates that she make a "thorough evaluation and not dispose of it summarily": Zamyadi v. Canada (Minister of Citizenship and Immigration), March 27, 2000, (Docket No. IMM-1092-99).
[14] I agree with that approach. A consideration of paragraph 8 of the visa officer"s
statutory declaration and her cross-examination on her statutory declaration clearly establishes that the assessment was not thorough, but was informal and not very lengthy. In the factual situation of this case, I find that the applicant, Rowena Rozario was not afforded procedural fairness by the visa officer when the visa officer undertook to assess Rowena Rozario and did not carry out a thorough assessment. By so acting, the visa officer made an error reviewable by this Court. The decision was not a reasonable decision. The respondent did not disagree with this position.
[15] Accordingly, I would grant the application for judicial review and the files are
sent back for a redetermination of the spouse"s experience as a secretary.
[16] The parties did not have any question to certify pursuant to section 83 of the
Immigration Act, R.S.C. 1985, C. I-2 when the application was disposed of in this manner.
ORDER
[17] It is ordered that the application for judicial review is granted and the files are sent
back for a redetermination of the spouse"s experience as a secretary.
"John A. O"Keefe"
J.F.C.C.
Toronto, Ontario
August 11, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-1204-99 |
| STYLE OF CAUSE: JOSEPH ROZARIO and |
ROWENA DELICIA ROZARIO
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: TUESDAY, AUGUST 8, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: O"KEEFE J. |
DATED: FRIDAY, AUGUST 11, 2000
| APPEARANCES BY: Mr. Max Chaudhary |
| For the Applicants |
Mr. Kevin Lunney
For the Respondent
| SOLICITORS OF RECORD: Max Chaudhary Law Office |
Barrister & Solicitor
405-255 Duncan Mill Rd.
North York, Ontario
M3B 3H9
| For the Applicants |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000811
Docket: IMM-1204-99
BETWEEN:
| JOSEPH ROZARIO and |
ROWENA DELICIA ROZARIO
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
AND ORDER