Date: 20030423
Docket: IMM-1084-01
Citation: 2003 FCT 473
Ottawa, Ontario, this 23rdday of April, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ROSSEN ROUSSINOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Roussinov is a 28-year-old cook and a citizen of Bulgaria. He applied in December 2000 to gain permanent residence in Canada. His application was evaluated by a visa officer in Berlin, who awarded him 68 points, just short of the 70 points required by the Immigration Regulations, 1978.
[2] The only issue in this case relates to the evaluation of Mr. Roussinov's educational qualifications. He completed 8 years of elementary school, 4 years of trade school, and also acquired a diploma as a dietary cook. He attended university for 3 years, but did not earn a degree or diploma. On the basis of this information, the visa officer awarded Mr. Roussinov 10 points out of a maximum of 16 in the educational category. Mr. Roussinov says that the officer made a serious error in not awarding him the 13 points he felt he deserved. Obviously, with the additional 3 points, Mr. Roussinov would have succeeded in acquiring permanent residency in Canada. In addition, Mr. Roussinov argues that he was treated unfairly, in that the officer should have informed him of any concerns about his educational qualifications and given him an opportunity to clarify matters.
[3] The Regulations (Schedule I, item 1) provide that a secondary school diploma that would satisfy university entrance requirements is worth 10 points (s. 1(1)(b)(ii)). It is on this basis that Mr. Roussinov received his 10 points for education. A person who goes on to acquire a diploma in a post-secondary program that involves at least one year of full-time classroom study is entitled to 13 points (s. 1(1)(c)(ii)). Mr. Roussinov felt he deserved 13 points based on his cooking diploma.
[4] In my view, there was insufficient evidence before the officer to cause him to award more than 10 points. Mr. Roussinov did not earn a diploma from his university studies. His cooking diploma does not indicate how much classroom time was required to earn it or whether completion of secondary school was a prerequisite (which are the criteria set out in the Regulations). Accordingly, I see no error in the visa officer's assessment.
[5] There remains, however, the question whether the visa officer should have alerted Mr. Roussinov to the problem in this area of his application and given him an opportunity to supply more information. There are circumstances where such a duty arises. For example, it arises where an applicant provides documentation that supports the granting of 13 points on the strength of secondary and post-secondary diplomas, but the visa officer is doubtful whether all of the applicable regulatory criteria have been satisfied. The officer must not limit the assessment to 10 points without advising the applicant of his or her concerns and giving the applicant an opportunity to respond: Chen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 528 (QL) (T.D.); Lu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 520 (QL) (T.D.). The duty also arises where there is contradictory evidence before the visa officer on a particular point: Barran v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 258 (QL) (T.D.). In such cases, the officer must give the applicant a chance to clear things up.
[6] In the present case, however, I see no grounds for imposing on the visa officer a duty to inquire into the details of Mr. Roussinov's cooking diploma. Mr. Roussinov did not refer to the diploma at all in his application form. The diploma itself says nothing about the duration of the studies leading to it or the prerequisites for entry into the program. There was nothing before the visa officer to suggest that Mr. Roussinov was entitled to 13 educational points and no contradictory evidence on the point.
[7] I note that the visa officer did inquire into an apparent contradiction in the evidence. Mr. Roussinov stated in his application that he was a student at the University of Sofia from September 1995 to June 1998. During the same period, he said he was employed as a cook. Quite properly, the visa officer questioned him about this at the interview. Mr. Roussinov said that he only worked part-time while attending university. I also note that he acquired his cooking diploma during the same time frame (June 1998), making it seem quite unlikely that he could have been simultaneously attending university, working part-time and attending cooking school full-time. In any case, Mr. Roussinov apparently said nothing about his cooking diploma during the course of that discussion.
[8] I cannot conclude that the visa officer made an error in awarding Mr. Roussinov 10 points in the educational category. Nor can I conclude that the visa officer failed to discharge his duty to treat Mr. Roussinov fairly in the consideration of his application for permanent residence.
[9] The application for judicial review is therefore dismissed. No question of general importance was proposed for certification and none is stated.
JUDGMENT
IT IS HEREBY ADJUDGED THAT the application for judicial review is dismissed. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-1084-01
STYLE OF CAUSE: ROSSEN ROUSSINOV - v. - THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, MARCH 20, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HON. JUSTICE O'REILLY
DATED: WEDNESDAY, APRIL 23, 2003
APPEARANCES BY:
Mr. Ravi Jain FOR THE APPLICANT
Ms. Catherine Vasilaros FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ravi Jain
GREEN & SPIEGEL
121 King Street West, Suite 2200
P.O. Box 114
Toronto, Ontario M5H 3T9 FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa ON FOR THE RESPONDENT
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