Date: 20010628
Docket: IMM-2889-00
Neutral Citation: 2001 FCT 723
Halifax, Nova Scotia, this 28th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
PANGELOVA OKSANA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of visa officer J. M. Massey, dated May 31, 2000 [the letter of decision is actually dated May 30, 2000] refusing the applicant's application for permanent residence in Canada.
[2] The applicant seeks an order setting aside the above decision and referring the matter to a different visa officer for redetermination.
Background Facts
[3] The applicant, Oksana Pangelova, is a citizen of Ukraine. She made an application for permanent residence in Canada under the independent category, indicating remedial gymnast as her intended occupation. This occupation is included in the group "Other Professional Occupations in Therapy and Assessment" (NOC Code 3144). The applicant has a diploma as a teacher-coach of track and field athletics.
[4] The applicant's application was paper-screened by Acting Immigration Program Officer Kevin Colbourne. Mr. Colbourne entered a preliminary assessment in CAIPS and referred the application to visa officer J. M. Massey. The applicant was not interviewed and by letter dated May 30, 2000, which reads in part as follows, her application for permanent residence in Canada was denied:
In your application, you indicated that your intended occupation in Canada is a Remedial Gymnast. I assessed your application according to the occupation 3144.0 in the National Occupational Classification (NOC). The units of assessment granted to you appear below:
Age 10
Occupation 00
ETF 15
Experience 00
Arranged Employment 00
Demographic Factor 08
Education 15
English/French 06
TOTAL 54
According to NOC, in order to practice this occupation in Canada, "Remedial gymnasts require completion of an approved college program in remedial gymnastics." As you do not have the required qualification, I cannot grant you any points for occupation. Zero points for the occupational factor is an immediate bar to further processing. Therefore, I am unable to issue an Immigrant Visa to you under subsection 11(2) of the Immigration Regulations because you do not have the education needed to work in this occupation in Canada (as defined by the NOC). I am satisfied that having considered all the information you have provided, I have sufficient information to make a decision without an interview.
[5] The applicant has not filed an affidavit in support of her application for judicial review. Rather, David Genis, the manager of ICC Ltd., which is the consultant of the applicant, has filed an affidavit in which he states that he has personal knowledge of this case.
Relevant Statutory Provisions
[6] Paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 states:
| 19.(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: . . . (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations. |
19.(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_: . . . d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. |
|
[7] Subsection 11(2) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations") states:
| 11.(2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless (a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I; (b) the immigrant has arranged employment in Canada; or (c) the immigrant is prepared to engage in employment in a designated occupation.. |
11.(2) Sous réserve des paragraphes (3) et (4), l'agent des visas ne délivre un visa en vertu des articles 9 ou 10 à un immigrant autre qu'un entrepreneur, un investisseur, un candidat d'une province ou un travailleur autonome, que si l'immigrant: a) a obtenu au moins un point d'appréciation pour le facteur visé à l'article 4 de la colonne I de l'annexe I; b) a un emploi réservé au Canada; ou c) est disposé à exercer une profession désignée. |
|
Issues
[8] 1. Did the visa officer err in law by assessing the applicant's education
without considering the standards of the country in which the applicant lives?
2. Did the visa officer err in law and in fact by concluding that the
applicant's education was not sufficient for a remedial gymnast?
3. Did the visa officer err in law and in fact by not informing the applicant of
her concerns and thereby not giving the applicant an opportunity to respond?
Analysis and Decision
[9] The standard of review to be applied in a review of this visa officer's decision is reasonableness simpliciter (see Yin v. Minister of Citizenship and Immigration Canada (June 15, 2001) Docket IMM-49-00 (F.C.T.D.)).
[10] Issue 1
Did the visa officer err in law by assessing the applicant's education
without considering the standards of the country in which the applicant lives?
I have reviewed the visa officer's notes and her decision and I am of the view that she assessed the applicant's education in a proper manner. Under the NOC (National Occupational Classification) system, it is an employment requirement that a remedial gymnast must have completed an approved college program in remedial gymnastics. The visa officer stated that she assessed the applicant's education using the NOC standards as required. She noted that the applicant had a physical education degree with no emphasis on remedial gymnastics. She further noted that the applicant's program of studies did not include any courses in remedial gymnastics and only one course each in athletic medicine and athletic massage. After a thorough review of the applicant's educational background, the visa officer concluded that the applicant did not have an approved college program in remedial gymnastics. Accordingly, the applicant did not meet the employment requirement for her intended occupation and therefore did not satisfy item 1(a) of the Occupational Factor contained in Schedule I of the Regulations. Since the visa officer awarded zero units of assessment under the occupational factor, paragraph 11(2)(d) of the Regulations prevented her from issuing a visa to the applicant. I am of the opinion that the decision of the visa officer was a reasonable decision.
[11] Issue 2
Did the visa officer err in law and in fact by concluding that the
applicant's education was not sufficient for a remedial gymnast?
This issue has been addressed in my discussion of Issue 1.
[12] Issue 3
Did the visa officer err in law and in fact by not informing the applicant of
her concerns and thereby not giving the applicant an opportunity to respond?
There is no obligation on the visa officer to apprise the applicant of any concerns the visa officer may have concerning the material presented by the applicant in support of her application. As I have indicated in Bhogal v. Canada (Minister of Citizenship and Immigration), (September 28, 2000) Docket IMM-5472-99 (F.C.T.D.), there is no requirement that the visa officer allow the applicant to address any concerns she may have other than by way of the applicant presenting her material to support her application.
[13] The applicant was not present and not represented at the hearing, having indicated the day before the hearing that she would not be attending. The respondent requested that I award $1,500 in costs to the respondent because the applicant did not notify her at an earlier date that she would not be attending the hearing. The applicant had an address for service in Toronto, but the record does not establish anything other than this. I am not prepared in the circumstances of this application to award costs as the respondent would have had to prepare in any event.
[14] No question was proposed for certification pursuant to subsection 83(1) of the Act.
[15] The application for judicial review is dismissed.
ORDER
[16] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Halifax, Nova Scotia
June 28, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2889-00
STYLE OF CAUSE: PANGELOVA OKSANA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JUNE 19, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: THURSDAY, JUNE 28, 2001
APPEARANCES:
No One Present
FOR APPLICANT
Ms. Ann Margaret Oberst
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. David Genis
2310 - 100 Wellesley Street East
Toronto, Ontario
M4Y 1H5 FOR APPLICANT
Department of Justice
130 King Street West
Suite 3400, The Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010628
Docket: IMM-2889-00
Neutral Citation: 2001 FCT _____
BETWEEN:
PANGELOVA OKSANA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER