Date: 20000606
Docket: IMM-2717-99
BETWEEN:
SUDHAKARA REDDY NAREDDI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a judicial review application of a decision of visa officer, Gisele Gaudet, Canadian High Commission in New Delhi, dated March 20, 1999 wherein the applicant"s application for permanent residence in Canada was refused.
FACTS
[2] The applicant is a citizen of India. He applied under the occupation of Mining Engineer (CCDO 2153-110, NOC 2143.0), Mining Engineering Technologist (CCDO 2165-150, NOC 2212.1) and Contractors and Supervisors, Mechanic Trades NOC 7216.0.
DECISION
[3] The visa officer assessed the applicant in the occupation of Mining Engineer (CCDO 2153-110) for which he earned the following units of assessments:
[4] The application was further assessed under the National Occupation Classification (NOC) but he did not qualify under the revised assessment criteria in this occupation either.
THE APPLICANT"S POSITION
[5] The applicant submits that the visa officer failed to assess him in all his intended occupations. He requested that he be assessed as a Mining Engineer, Mining Engineering Technologist and, Contractors and Supervisors, Mechanic Trades. The refusal letter only mentions that the applicant was assessed as a Mining Engineer. The paper screening section of the CAIPS indicates that he was only assessed as a Mining Engineer.
[6] The interview notes indicate assessments for Mining Engineering Technologist under the CCDO and the NCO.
[7] The applicant submits that the visa officer failed to assess the applicant under the NOC definition of Mining Engineer NOC 2143 and the NOC definition of Contractors and Supervisors, Mechanic Trades, NOC 7216.
[8] The applicant submits that the visa officer failed to ascertain what amount of his duties could be credited to said intended occupation of NOC 2143, Mining Engineer.
[9] The applicant submits that the respondent admits that he performed many of the "principal duties" in his intended occupation and yet failed to give him points for experience in the said occupation.
[10] The applicant further submits that the respondent has breached fairness and natural justice when she reduced the applicant"s points in English without conducting an examination of the English abilities.
THE RESPONDENT"S POSITION
[11] The respondent points to some corrections made by the visa officer in her refusal letter:
| The occupation set out in the refusal letter should read "Mining Engineering Technologist" [CCDO 2165-150 and NOC 2212.1] and not "Mining Engineer" CCDO 2153-110. |
| The units awarded for Occupational Factor should read "1" and not "5". |
| The units awarded for ETF should read "15" and not "18". |
| The units awarded for the factor of Experience should read "6" and not "4". |
| The total units awarded should read "63" and not "68". |
[12] The respondent submits that after discussing the issue of intended occupation with the applicant and after going over his qualifications and work experience with him, the applicant stated that his intended occupation would be confined to that of Mining Engineering Technologist.
[13] During the cross-examination, the visa officer stated that the applicant agreed that he be assessed as a Mining Engineering Technologist. He does not deny that in his affidavit.
[14] The respondent submits that the applicant has failed to substantiate his argument that the visa officer failed to ascertain whether his work"s duties could be "transferred" to another occupation.
[15] The respondent submits that the visa officer found that none of his duties where such that he met the job description of any other alternative occupation which the applicant or his counsel had suggested prior to the interview.
[16] As to the language assessment, the respondent submits that even if the applicant reading and writing abilities were assessed as fluent, he would be awarded only two additional units for a total of 65, which is still five units short of the minimum requirement of 70. The respondent submits that the error is immaterial.
ANALYSIS
[17] I am concerned with the fact that the refusal letter holds so many errors. The occupation listed was not the occupation assessed under. The total of units awarded on February 8, 1999 was 61. The refusal letter dated March 20, 1999, indicated that the total was 68. During the cross-examination that took place on July 12, 1999, the visa officer explained that the total was actually 63. Furthermore, there is no mention of the total of 63 units in the CAIPS notes.
[18] In the tribunal record pages 15 to 18, assessments are conducted for two occupations under the CCDO and the NCO. For the Mining Engineering Technologist, CCDO 2165150, there is an original total of 71 units, beside it another computerized total of 64, which is later corrected by hand for a total of 61. Under the NOC, the same occupation, earned 71 units, then 58, and the corrected hand version is 59 points. The assessment for Mining Engineer, CCDO 2153110 is apparent on page 15, but the total of units is not shown. A technical error seemed to have occurred. Under the NOC, this position had 71 points and then 70 points. There was no hand written corrections.
[19] The applicant takes issue with the fact that he requested that he be assessed in three different occupations, but was assessed in only one. The visa officer replies that the applicant agreed that his intended occupation would be Mining Engineering Technologist.
[20] The CAIPS indicate that he is qualified as a Mining Engineer and was paper screened under this occupation.
[21] However, the visa officer later wrote in the CAIPS that he would be assesses as a Mining Engineering Technologist as per description of work experience.
[22] During the cross examination, the visa officer explained at page 33 of the applicant"s record (line 17):
| At the interview when we went through his qualifications and work experience, and that both agreed that he should be assessed under the mining engineering technologist. |
[23] Again at page 34 (line 8):
| I discussed with the applicant and he agreed to be assessed under the mining engineering technologist. |
[24] There is no mention in the CAIPS notes that the applicant agreed to be assessed only in this category whereas, he has indicated in his application his desire to be assessed as a Mining Engineer and as Contractors and Supervisors, Mechanic Trades.
[25] Furthermore, the visa officer stated during her cross-examination that she did not assess the applicant as a Mining Engineer because she did not think his duties cohered with the NOC.
[26] When asked to point out in the file to the evidence that she assessed the applicant in the occupation of Contractors and Supervisors, Mechanic Trades, she was unable to do so.
[27] The Federal Court of Appeal held in Gaffney v. Canada (M.E.I.)(1991), 121 N.R. 256 :
| This Court found that a visa officer has the duty to assess an applicant with reference to the occupation represented by the applicant (or his or her spouse) as the one for which he or she is qualified and prepared to pursue in Canada. That duty, in my view, extends to each such occupation. |
[28] Jerome A.C.J. held in Hajariwala v. Canada (M.E.I.), [1989] 2 F.C. 79:
| The Regulations permit the applicant to be assessed in "an occupation". The factors listed in column I of Schedule I require that the experience of the applicant be assessed with regard to his intended occupation. There is no reason why the actual experience and time spent in each of the various responsibilities in an occupation cannot be broken down to award units of assessment for experience in intended occupations. |
[29] In Li v. Canada (M.E.I.) (1990), 31 F.T.R. 290, Jerome A.C.J. reiterated:
| There exists a clear responsibility on the part of the visa officer to assess alternate occupations inherent in the applicant's work experience where the applicant seeks such an assessment by designating it in his application. Where his work experience suggests that the occupation may be appropriate, the visa officer must assess the applicant in the designated occupation, regardless of which alternate occupations the officer has seen fit to consider. |
| The record must equally indicate reasons which support the visa officer's assignment of a specific experience rating to the included occupations or reasons which support the refusal to do so. Having erroneously concluded that no assessment need be done, the visa officer in this case failed in this aspect of the duty of fairness. |
[30] The applicant was represented when he sent in his application to be assessed in the three occupations. The visa officer had a duty to assess the applicant in those occupations. Should she feel that his experience was not coherent with the NOC or the CCDO, the assessment will reflect the units acquired and he would be refused in accordance with the law and regulations. In my view, the applicant erred in omitting to assess the applicant in the occupation intended.
[31] As to the language testing, Justice Reed held in Chatrova v. Canada (M.C.I.), (1996) 111 F.T.R. 308:
| I turn to the assessment of her ability to write in English. It is this assessment that I find most troublesome. The visa officer assumed that the applicant's ability in this areas was comparable to her ability to speak the language. She had claimed fluency in all three areas which are assessed: reading, writing and speaking. The visa officer accepted her self assessment insofar as reading is concerned and awarded her three points. He awarded her two points for her verbal skills because he determined, on speaking to her, that her English was good but not fluent. He assumed, however, that her writing ability was comparable to her speaking ability, not to her reading ability. No test was done nor was she asked to demonstrate her writing ability. In the circumstances of this case, this is a significant error. |
[32] The visa officer must assess the applicant"s abilities before awarding the units. Her failure to do so is an error in law.
[33] For these reasons, this judicial review is granted. The decision of the visa officer is quashed and the application for permanent residence is referred back for reconsideration by a different visa officer.
Pierre Blais
Judge
OTTAWA, ONTARIO
June 6, 2000
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