Date: 20040112
Docket: IMM-855-02
Citation: 2004 FC 31
Ottawa, Ontario, this 12th day of January, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MAXIM ROUDENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Maxim Roudenko, a citizen and resident of Russia, applied to come to Canada as a computer programmer. After an interview concerning his application at the Canadian Embassy in Paris, Louise Van Winkle ("Visa Officer"), by letter dated January 21, 2002, refused his application. He seeks judicial review of that decision.
Issues
[2] The sole issue before me is whether the Visa Officer erred in law by misinterpreting or ignoring the evidence before her.
Background
[3] The Applicant is a Russian citizen and applied in the independent category for permanent residence in Canada. His intended occupation under the National Occupations Classification ("NOC") was Computer Programmer - NOC 2163. The Applicant submitted his application along with four reference letters from former employers to the Canadian Embassy in Paris.
[4] On January 21, 2002, the Visa Officer interviewed the Applicant at the Canadian Embassy in Paris. The Applicant and his wife chose to attend his interview without the aid of an interpreter and the interview was conducted in English. On the same day, the Visa Officer issued her decision, where, pursuant to Schedule 1 of the Immigration Regulations, 1978, SOR/78-172, she awarded zero units of assessment for the following factors:
Factor 3 (Experience): at least one year of experience as a Computer Programmer
Factor 4 (Occupational Factor): "experience in an occupation for which they are qualified and are prepared to follow in Canada."
[5] The Visa Officer stated in her decision that Section 11(1) of the Immigration Regulations, 1978, SOR/78-172 does not permit her to issue an immigrant visa to applicants who obtain zero units of assessment for Factor 4. She went on to write:
During our interview today, you were unable to describe except in the broadest terms any programs which you had developed or programming projects in which you had participated. I am not satisfied that you have experience as a Computer Programmer and do not, therefore award you any units of assessment for this factor.
[6] In her affidavit, the Visa Officer states that the Applicant "failed to satisfy me at his interview that he had performed a substantial number of the main duties as set out in the NOC, including the essential ones."
Analysis
Standard of Review
[7] The Applicant's application for an immigration visa involved a discretionary decision that had to be made on the basis of specified statutory criteria. If this statutory discretion has been exercised in good faith and in accordance with the principles of natural justice where required, and if reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, then the Court should not intervene ([1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (C.A.) ( QL)). A corollary to these principles is that a decision may be overturned if the officer did not take into consideration all of the relevant material that was before her (Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1940 (T.D.) (QL)).
[8] This last point is particularly relevant in this case as the main basis of the Applicant's argument is that the Visa Officer failed to take into account various reference letters submitted to her. As will be seen from the analysis that follows, the Applicant has failed to satisfy me that there was any reviewable error made by the Visa Officer.
Did the Visa Officer ignore the evidence before her and, therefore, commit a reviewable error?
[9] Although the Applicant argues that the Visa Officer ignored the evidence before her, there is nothing on the record to suggest this. By reading her interview notes, which are recorded on the Computer Assisted Immigration Processing System (CAIPS), one can see that the Visa Officer did review the documentary evidence before her and consider the Applicant's answers to her questions. The basis of the questions posed to the Applicant clearly arises from the information submitted, including the reference letters.
[10] In addition, I note the lack of detail in the letters and documents in question. The only letter with any particulars of the Applicant's duties was the letter dated 10.11.1999 from the General Director of StroyPolimerKermaika. Even that reference letter described his experience and duties in general terms. It was only from the interview that the Visa Officer could determine the extent of his experience. Her conclusion, based on his responses to the questions, was that the Applicant had not provided her with sufficiently detailed information to indicate that he had experience as a Computer Programmer. He answered questions "using the broadest terms". The Visa Officer, in assessing whether the Applicant is a Computer Programmer, acted entirely within her mandate and directed herself to the proper question (Lim v. Canada (Minister of Employment and Immigration) (1991), 121 N.R. 241 at 243 (F.C..A.)).
[11] The Applicant submits that Wang, supra is applicable to the facts of this case. However, I note several differences between that case and the one before me. In that case, the visa officer assessed the student without an interview solely on the basis of the written documentation. No interview was involved. In addition to disregarding the evidence before her, she also took into account irrelevant considerations and failed to give reasons as to why she doubted the validity or authenticity of certain documents. Here, there is no question about the validity of the documents; it was simply a case that the documents, by themselves, did not establish the requisite experience. Thus, an interview was called for the Visa Officer to assess the Applicant's experience. As a result of that interview, the Visa Officer was not satisfied with the Applicant's experience. I see no error.
[12] The Applicant has not argued that the Visa Officer acted in bad faith, that principles of fundamental justice were violated, or that irrelevant considerations factored into her exercise of discretion. In effect, the Applicant seems to be objecting to the manner in which the Visa Officer weighed the evidence before her. This cannot form the basis of a reviewable error for a discretionary decision. As was stated in [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd., supra, the Court cannot quash a decision merely because it would have reached a different outcome than that which was reached by the decision-maker.
[13] For these reasons, this application will be dismissed.
[14] Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
2. No question of general importance is certified.
"Judith A. Snider"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-855-02
STYLE OF CAUSE: MAXIM ROUDENKO v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 8, 2004
REASONS FOR ORDER: The Honourable Madam Justice Snider
DATED: January 12, 2004
APPEARANCES:
Mr. John Grice FOR THE APPLICANT
Ms. Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
DAVIS & GRICE FOR THE APPLICANT
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Email this Content