Plaha v. Canada (Minister of Citizenship and Immigration), 2002 FCT 287

Date: 20020315

Docket: IMM-3862-01

Neutral citation:2002 FCT 287

Vancouver, British Columbia, Friday, the 15^th day of March, 2002

Present:           THE HONOURABLE MADAM JUSTICE DAWSON

BETWEEN:

                                                                       AJAY PLAHA

                                                                                                                                                       Applicant

                                                                                 and

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Mr. Plaha brings this application for judicial review from the decision of a visa officer at the Canadian High Commission in New Delhi, India made on June 6, 2001 refusing Mr. Plaha's application for permanent residence in Canada.

[2]                 While Mr. Plaha also puts in issue whether the visa officer erred in failing to award the full units of assessment Mr. Plaha was entitled to in respect of his age and personal suitability, this application for judicial review turns upon whether the visa officer erred by awarding to Mr. Plaha no units of assessment for the experience factor. This is because, pursuant to subsection 11(1) of the Immigration Regulations, SOR/78-172, the visa officer shall not issue an immigrant visa to an applicant who is not awarded any units of assessment for experience, unless certain conditions not applicable to Mr. Plaha are met.

[3]                 With respect to Mr. Plaha's experience, he had provided letters from his employer which confirmed that he was employed as an Assistant Marketing Researcher. The letters were signed by Mr. Sud, the proprietor of the entity which employed Mr. Plaha. Mr. Plaha also provided at his interview with the officer a list he had prepared of the duties which he said he carried out in his employment and which were relevant to his intended occupation as Marketing Researcher, National Occupational Classification 4163.0.

[4]                 However, during the interview the visa officer arranged for Mr. Sud to be contacted by telephone for the purpose of verifying Mr. Plaha's employment duties and job title. Mr. Sud advised by telephone that Mr. Plaha was the supervisor of sales and that his job was that of head salesman.

[5]                 Based on this information, the visa officer was not satisfied that Mr. Plaha had performed some or all of the main duties of his intended occupation.

[6]                 Mr. Plaha complains that in so finding the visa officer applied the standard of proof beyond a reasonable doubt in assessing Mr. Plaha's work experience. The correct standard is to assess an application on a balance of probabilities.

[7]                 It is for the visa officer to assess the weight to be given to the evidence adduced on an applicant's behalf. In the face of the employer's oral evidence which contradicted the employer's correspondence on the nature of Mr. Plaha's work experience, I find no reviewable error in the visa officer's conclusion that Mr. Plaha had not met the onus upon him to satisfy the visa officer that Mr. Plaha possessed the required experience.

[8]                 I am unable to see how it can be said that the visa officer applied the criminal standard of proof. Rather, in weighing the matter on a civil standard of proof the visa officer was entitled to discount the employer's correspondence once the employer contradicted it in the telephone conversation. Once the correspondence is discounted the remaining evidence of experience was the assertion of Mr. Plaha. The visa officer was in no way obliged to accept that assertion in light of the oral advice received from the employer.

[9]                 It follows from my conclusion that the visa officer did not err in a reviewable manner in awarding Mr. Plaha no units of assessment for experience that the visa officer was then precluded from issuing an immigrant visa to Mr. Plaha. This is so irrespective of any admitted error in awarding eight and not ten units of assessment in respect of Mr. Plaha's age, and any alleged error in assessing personal suitability or in awarding one unit of assessment on account of the occupational factor. On this last point, see: Dizon v. Canada (Minister of Citizenship and Immigration, [2002] F.C.J. No. 135 (F.C.T.D.).

[10]            Mr. Plaha did not pursue in oral argument the argument contained in his written submissions that the visa officer erred in failing to formally assess his application in his intended occupation. That argument is not supported by either the Computer Assisted Immigration Processing System notes or the contents of the refusal letter.

[11]            In the result, the application for judicial review will be dismissed. Counsel posed no question for certification.

                                                                            ORDER

[12]            IT IS HEREBY ORDERED THAT:

1.          The application for judicial review is dismissed.

2.          No question is certified.

"Eleanor R. Dawson"

Judge