Date: 20001010
Docket: IMM-5786-99
BETWEEN:
MOHAMMAD HOSSEIN SALEH YAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Mohammad Hossein Saleh Yar, the applicant, is a 35 year old citizen of Iran who applied for permanent residence in Canada in the independent category under the intended occupation of a Denturist, National Occupational Classification ("NOC") 3221.
[2] On September 27, 1999, Ms. K. Nectoux, a visa officer at the Canadian Embassy in Damascus, Syria, determined that Mr. Yar's application for permanent residence in Canada was refused. Mr. Yar brings this application for judicial review of that decision.
THE FACTS
[3] Mr. Yar's application for permanent residence disclosed that in 1991 he received the degree of Doctor in Dentistry, that he had worked as a dentist from 1991 to 1992, and that since then he had been employed by the Faculty of Dentistry at the Kerman University of Medical Sciences. The letter which accompanied his application stated that at the University he was an instructor and was involved in the Prosthodontics Department and its Laboratory where he examined patients and designed, constructed and repaired dentures. A certificate from the University was filed with Mr. Yar's application certifying that he had been working at the Faculty in the Prosthodontics Department and its Laboratory.
[4] Mr. Yar's application for permanent residence was paper screened and as a result of that screening it was decided that Mr. Yar failed to meet the requirements prescribed by the NOC. Mr. Yar was not granted an interview, and by letter dated September 27, 1999 Mr. Yar was advised that his application for permanent residence in Canada was refused.
[5] The material portions of the visa officer's refusal letter state as follows:
| You were assessed as a member of the Independent category, and under the occupation of Denturist, NOC: 3221.0. The results of this assessment are as follows: |
| Specific Vocational Preparation 15 |
| In assessing your application, I was not able to award you with any points for experience as you do not meet the employment requirements for Denturist by the National Occupational Classification system (NOC). The NOC requires completion of a two or three year college diploma program in denturist technology. I have reviewed your educational background and am not satisfied you meet this standard. |
| In the future, if you are still interested in immigrating to Canada, you may wish to upgrade your education and re-apply. |
[6] Before me it was conceded that the reference to specific vocational preparation in the refusal letter was more properly a reference to the education and training factor. Nothing of substance was alleged to turn on that error.
THE ISSUE
[7] Mr. Yar raised one issue with respect to the visa officer's decision, that is whether the visa officer committed a reviewable error by awarding Mr. Yar one unit of assessment for the occupational factor and no units of assessment for experience, while finding that Mr. Yar did not meet the educational requirements for a Denturist.
ANALYSIS
[8] Subsection 6(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, ("Act") provides that an immigrant may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the Regulations for the purpose of determining whether or not, and the degree to which, the immigrant will be able to become successfully established in Canada.
[9] For an immigrant other than an entrepreneur, an investor, a provincial nominee, or an immigrant who intends to be a self-employed person, paragraph 8(1)(a) of the Immigration Regulations, 1978, SOR/78-172, as amended ("Regulations"), provides that for the purpose of determining whether an immigrant will be able to become successfully established in Canada, a visa officer shall assess that immigrant on the basis of each of the factors listed in Column I of Schedule I to the Regulations.
[10] Of particular relevance to this application are factors 2 and 4 of Schedule I which, in material part, provide as follows:
| 2. Education and Training:
(1) To be measured by the amount of formal education and professional, vocational, apprenticeship, in-plant or on-the-job training specified in the National Occupational Classification as being necessary to acquire the information, techniques and skills required for the occupation in which the applicant is assessed under item 4.
...
4. Occupational Factor:
(1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation
(a) for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification;
(b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones.
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| 2. Études et formation:
(1) À évaluer suivant le programme d'études et la période de formation professionnelle, d'apprentissage, de formation en usine ou de formation en cours d'emploi précisés dans la Classification national des professions comme étant nécessaires pour acquérir les connaissances théoriques et pratiques et les compétences qu'exige la profession pour laquelle le requérant est apprécié selon l'article 4.
...
4. Facteur professionel:
(1) Des points d'appréciation sont attribués en fonction des possibilités d'emploi au Canada dans la profession :
a) à l'égard de laquelle le requérant satisfait aux conditions d'accès, pour le Canada, établies dans la Classification nationale des professions;
b) pour laquelle le requérant a exercé un nombre substantiel des fonctions principales établies dans la Classification nationale des professions, dont les fonctions essentielles.
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| [11] In the present case, the visa officer awarded Mr. Yar 1 unit of assessment under the Occupational Factor. As can be seen from the above reference to Schedule I, implicit in this award is that the visa officer found Mr. Yar to: |
| (a) have met the employment requirements for Canada as set out in the NOC for a Denturist; and |
| (b) have performed a substantial number of the main duties as set out in the NOC for a Denturist, including the essential ones. |
| [12] The NOC provides that in respect of Denturists, the employment requirements are: |
| - Completion of a two or three-year college program in denturist technology is required. |
| - An apprenticeship in a registered denture clinic is usually required. |
| - Licensure by a provincial or territorial governing body is required except in Prince Edward Island. |
| - In Quebec, membership in the professional corporation for denturists is mandatory. |
| The main duties of Denturists are stated to be: |
| Denturists perform some or all of the following duties: |
| - Measure patients' jaws to determine size and shape of dentures required |
| - Make impressions of patients' teeth, gums and jaws |
| - Construct dentures or direct other workers to construct dentures |
| - Fit and modify new dentures |
| - Reline and rebase dentures. |
| [13] The visa officer's award of 15 out of 18 units for Education and Training is consistent with the finding that Mr. Yar met the employment requirements of his intended occupation. |
| [14] However, the award of no unit of assessment for Experience in the occupation of Denturist is inconsistent with the finding, implicit in the visa officer's award of one unit under the Occupational Factor, that Mr. Yar performed a substantial number of the main duties of the occupation of Denturist. |
| [15] Mr. Yar's application letter had expressly stated that he constructed and repaired dentures, fulfilling two of the six main duties specified in the NOC. It also stated that he examined patients and designed dentures, which appears to encompass the duty of measuring jaws to determine the size and shape of required dentures, being another of the main duties. |
| [16] In light of the evidence of relevant experience, and the award of a unit of assessment under the Occupational Factor, I find the visa officer's award of no unit of assessment for experience to be perverse. Similar conclusions were reached in like circumstances by Sharlow, J. (as she then was) in Dauz v. Canada (Minister of Citizenship and Immigration) (1999), 2 Imm. L.R. (3d) 16 (F.C.T.D.); Reed, J. in Osman v. Canada (Minister of Citizenship and Immigration) (2000), 4 Imm. L.R. (3d) 62 (F.C.T.D.); and by me in Kopyl v. Canada (Minister of Citizenship and Immigration),[2000] F.C.J. No. 1167; IMM-3815-99 (July 19, 2000) (F.C.T.D.). |
| [17] That the visa officer was in error is, I find, further supported by her statement in the refusal letter that, "[t]he NOC requires completion of a two or three year college diploma program in denturist technology. I have reviewed your educational background and am not satisfied you meet this standard", in circumstances where the visa officer has awarded 15 units of assessment for the Education and Training factor, and one unit of assessment for the Occupational Factor. |
| [18] Before me, in oral argument, the Minister did not pursue the argument advanced in the motion record filed on her behalf to the effect that Dauz and Osman were wrongly decided. The Minister did submit, however, that in the absence of evidence that Mr. Yar completed the required two or three year college program in Denturist technology that the visa officer was correct in awarding no units for Experience. That submission is, in my view, inconsistent with the visa officer's award of 15 units under the Education and Training factor because the Regulations provide that this factor is to reflect education and training necessary to acquire the information, techniques and skills required to acquire the necessary skills for the assessed occupation. |
| [19] In the alternative, the Minister submitted that because the NOC requires completion of a two or three year college program in Denturist technology that Mr .Yar should not have received any points in the Occupational Factor or Education and Training so that the visa officer reached the correct result for the wrong reasons. |
| [20] As noted by Reed, J. in Osman, supra, an applicant has the right to be assessed in accordance with the Regulations, and to have an explanation given to the applicant that is coherent by reference to the applicable provisions in the legislation and Regulations. In my view, the present assessment fails to meet that standard, and a decision should not be upheld on the basis it was the correct result for the wrong reasons. |
| [21] In the result, the application for judicial review is allowed so that the decision of Ms. Nectoux is set aside and the matter is to be remitted to a different visa officer for redetermination. |
| [22] Mr. Yar sought the costs of this application. I have not been persuaded that special reasons exists which would justify any award of costs. |
| [23] No question was posed by counsel for certification. No question is certified. |
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