Date: 20021010
Docket: IMM-3613-01
Neutral citation: 2002 FCT 1056
BETWEEN:
GALYNA AKSONOVA
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] Ms. Galyna Aksonova (the "Applicant") seeks judicial review of the decision of visa officer, Julie Montgomery (the "Visa Officer"). In her decision, dated July 6, 2001, the Visa Officer refused the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of the Ukraine, filed an application for permanent residence in Canada under the independent category at the Canadian High Commission in London, England, in November, 2000. She indicated in her application that her intended occupation in Canada would be "translator" which is classified under the National Occupational Classification ("NOC") as "NOC 5125.1".
[3] The Applicant attended an interview with the Visa Officer on July 5, 2001. In the refusal letter dated July 6, 2001, the Visa Officer awarded zero points for the Applicant's experience and occupational demand factors, on the basis that the Applicant did not meet the NOC employment requirements for her intended occupation. The specific basis for the Visa Officer's conclusion in this regard was that the Applicant did not have a degree in translation.
[4] In my opinion, the Visa Officer applied the wrong test in assessing the Applicant's application. According to the applicable NOC job description, the employment requirements for a position of translator in Canada require a bachelor's degree in translation or a related discipline. In this case, the Visa Officer did not direct her mind or inquiries to whether the Applicant possessed a bachelor's degree in a related discipline. Instead, the Visa Officer applied the test of equivalency.
[5] In Zheng v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 71 (F.C.T.D.), the Court commented at paragraph 31 as follows:
By applying the requirement of a degree equivalent to or substituted for a translation degree, the visa officer confined the scope of employment requirements too narrowly and foreclosed a proper examination on whether the applicant's degree in the English language and literature and the courses she followed at the graduate level were connected to her employment as an interpreter. By doing so, the visa officer committed a reviewable error.
[6] In my opinion, the same reasoning applies here. The Visa Officer applied the wrong legal test and this application for judicial review is allowed. The matter will be remitted to a different visa officer for reconsideration in accordance with the law.
[7] Although counsel for the Applicant submitted a question for certification, in my opinion, this proceeding does not give rise to a question of general importance. No question will be certified.
ORDER
This application for judicial review is allowed and the matter is remitted to a different visa officer for reconsideration in accordance with the law.
"E. Heneghan"
J.F.C.C.
OTTAWA, ONTARIO
October 10, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3613-01
STYLE OF CAUSE: Galyna Aksonova v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 8, 2002
REASONS FOR ORDER The Honourable Madam Justice Heneghan
and ORDER:
DATED: October 10, 2002
APPEARANCES:
Mr. Frederick S. WangFOR THE APPLICANT
Mr. John LoncarFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Frederick S. WangFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada