Date: 20020405
Docket: IMM-631-01
Neutral citation: 2002 FCT 383
BETWEEN:
KYUNGHEE KANG (RYU)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] Ms. Kyunghee Kang (Ryu) (the "Applicant") seeks judicial review of the decision made by Mr. Daniel Vaughan, visa officer ("Visa Officer"), dated January 17, 2001. In his decision, the Visa Officer refused the Applicant's application for permanent residence in Canada.
FACTS
[2] The Applicant is a Korean citizen. On November 3, 2000, she applied for permanent residence in Canada as a member of the independent class. Her application was submitted to the Canadian Embassy in Seoul, Korea.
[3] The application, dated October 20, 2000, was paper-screened on January 5, 2001. It was referred to a visa officer for further review which was conducted on January 12, 2001.
[4] In her application, the Applicant identified three intended occupations in Canada, as referred to in the National Occupational Classification ("NOC"). These applications were coded:
General Duty Nurse (NOC 3152.1)
Medical Laboratory Technician (NOC 3212.0)
Radiation Therapist (NOC 3215.3)
[5] According to his affidavit, the Visa Officer assessed the Applicant for two additional occupations, that is Registered Nurse (Specialty) (NOC 3152.2) and Head Nurse (NOC 3151).
[6] The refusal letter refers to assessment of the Applicant in the three occupations identified in her application form. For the occupation of Nurse (NOC 3152.1) and Medical Laboratory Technician (NOC 3212.0), the Visa Officer advised that there was no demand in Canada for these occupations and 0 points were awarded for occupational factor.
[7] For the occupation Radiation Therapist (NOC 3215.3), the Visa Officer assessed the education/training factor at 15 but the occupational factor at 0, on the basis that he had determined that the Applicant did not meet the employment requirements in Canada for this occupation, according to the NOC. Consequently, he awarded 0 units of assessment under the occupational factor. He also concluded that the Applicant lacked the minimal one-year experience in the occupation of radiation therapy and awarded 0 unit of assessment under that factor.
[8] In the refusal letter, the Visa Officer referred to the Immigration Regulations, SOR/78-172, as amended, in respect of the three occupations identified in his refusal letter. Concerning the occupations of Nurse and Medical Laboratory Technician where there was no demand in Canada for these occupations, the Applicant received 0 points. Section 11(2) of the Regulations prescribes that a visa officer shall not issue a visa to an immigrant if that immigrant fails to earn at least 1 unit of assessment for occupational factor.
[9] That was the situation prevailing in relation to the three occupations identified in the refusal letter.
[10] As well, the Visa Officer referred to section 11(1) of the Regulations which prescribes that a visa officer shall not issue a visa to an immigrant if the immigrant fails to earn at least 1 unit of assessment for experience. That was the situation prevailing in respect of the occupation of Radiation Therapist.
[11] The Visa Officer also referred to section 11.1 of the Regulations in his refusal letter. This section authorizes a visa officer to refuse a visa application without conducting an interview.
ISSUE
[12] The issue raised by this application is whether the visa officer was required to grant an interview.
APPLICANT'S SUBMISSIONS
[13] The Applicant argues that she was not treated fairly in the manner of which her application for permanent residence was assessed. She submits that since her application passed a paper-screening and was forwarded to a visa officer for "further review and assessment", she should have been provided with a full opportunity to address any concerns relating to her training and experience for an occupation for which there was a demand in Canada. The Visa Officer's letter of January 17, 2001 makes it clear that there was a demand in Canada for the position of radiation therapist.
[14] The Applicant submits that since she was awarded 15 units under the educational/training factor for that occupation, it was unreasonable for the Visa Officer to deny her an opportunity to show that she could meet the job requirement for that position
in Canada. The Applicant says that the Visa Officer awarded her a high number of points under the education/training factor in that occupation, without any documents or evidence to substantiate those points.
[15] In this regard, the Applicant says there is a difference between the award of 0 points under occupational factor where there is no demand in Canada; that is the situation in respect of the occupations Nurse, NOC 3152.1 and Medical Laboratory Technician, NOC 3212.0. There was an occupational demand for Radiation Therapist, NOC 3215.3, and she should have been given the opportunity to answer questions in connection to that occupation. The failure to do so constitutes a breach of procedural fairness.
RESPONDENT'S SUBMISSIONS
[16] The Respondent argues that discretionary decisions made by a visa officer are subject to deference. In this case, the question whether the Applicant has the qualification or experience for particular occupation under which she applied is a factual matter within the jurisdiction of a visa officer and the Court has no general authority to intervene in such factual finding. Here the Respondent relies on Besil v. Canada (Minister of Citizenship and Immigration) (June 30, 1998) IMM-2832-97, [1998] F.C.J. No. 969 (F.C.T.D.) (QL) and Shakeel v. Canada (Minister of Citizenship and Immigration) (May 12, 1998) IMM-2589-97, [1998] F.C.J. No. 638 (F.C.T.D.) (QL).
[17] The Respondent argues that consequently, the Visa Officer was not obliged to conduct an interview since the Applicant did not receive at least 1 unit of assessment for each of the factor set out in Items 3 and 4 of Column I of Schedule I of the Regulations, pursuant to section 11.1 of the Regulations.
ANALYSIS
[18] As noted above, the sole issue is whether the Visa Officer was required to grant the Applicant an interview. The availability of an interview is addressed in the Regulations. Section 11.1(a)(i) of the Regulations provides as follows:
|
11.1 For the purpose of determining whether an immigrant and the immigrant's dependants will be able to become successfully established in Canada, a visa officer is not required to conduct an interview unless, based on a review of the visa application and the documents submitted in support thereof,
|
|
11.1 Afin de déterminer si un immigrant et les personnes à sa charge pourront réussir leur installation au Canada, l'agent des visas n'est pas obligé de tenir une entrevue, sauf si l'immigrant, d'après l'étude de sa demande de visa et des documents à l'appui :
|
|
(a) the immigrant is an immigrant described in paragraph 8(1)(a) and is awarded, for the factors set out in column I of items 1 to 8 of Schedule I, including, where required by these Regulations, at least one unit of assessment for each of the factors set out in column I of items 3 and 4 of that Schedule,
(i) at least 60 units of assessment, where the immigrant is not an assisted relative,
|
|
a) soit est visé à l'alinéa 8(1)a) et se voit accorder au moins le nombre suivant de points d'appréciation pour les facteurs mentionnés à la colonne I des articles 1 à 8 de l'annexe I, y compris, dans les cas où le présent règlement l'exige, au moins un point d'appréciation pour chacun des facteurs mentionnés à la colonne I des articles 3 et 4 de cette annexe :
(i) 60 points d'appréciation, dans le cas d'un immigrant qui n'est pas un parent aidé,
|
[19] This regulation sets forth the circumstances in which a visa officer is not required to conduct an interview. A triggering factor is the award of at least 60 units of assessment, including at least one unit of assessment for each of the factors set out in Items 3 and 4, Column I, Schedule I to the Regulations.
[20] Item 3 relates to experience and factor 4 deals with occupational factor.
[21] A determination of whether a prospective immigrant satisfies the requirements under either or both of these factors is a matter within the discretion of the visa officer. The fact that there is an occupational demand in Canada for a particular occupation does not mean that the visa officer must grant an interview if he or she is satisfied on the basis of the material presented that a prospective immigrant will not otherwise meet the requirements of the particular occupation. That is what happened here.
[22] According to the Applicant's resume which is included in the Record, her training and employment experience was wholly in the field of nursing. She holds a bachelor's degree of nursing and has many years of experience, including experience as an intensive care nurse. There is nothing in the material she presented concerning her employment history to support a conclusion she has either the training or experience in the occupation of Radiation Therapist.
[23] In these circumstances, the Visa Officer's decision to not grant an interview is reasonable. There is no basis to intervene in the decision.
[24] Accordingly, the application for judicial review is dismissed.
[25] Counsel advised that there is no question for certification.
ORDER
[26] The application for judicial review is dismissed.
(Sgd.) "Elizabeth Heneghan" J.F.C.C.
Vancouver, British Columbia
I HEREBY CERTIFY that the above document is a true copy of the original filed of record in the Registry of the Federal Court of Canada the __________ day of April A.D. 2002
|
Dated this _________ day of April, 2002
_______________________________
Julia Platt, Senior Registry Officer
|
April 5, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-631-01
STYLE OF CAUSE: Kyunghee Kang (Ryu) v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 3, 2002
REASONS FOR ORDER AND ORDER OF THE COURT BY: Heneghan J.
DATED: April 5, 2002
APPEARANCES:
Gerald G. Goldstein FOR APPLICANT
Pauline Anthoine FOR RESPONDENT
SOLICITORS OF RECORD:
Evans, Goldstein & Company FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia
Email this Content