IMM-4141-96
BETWEEN:
LYUDMILLA SAMOLENKO
Applicant
and
-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR ORDER
HEALD, D.J.
This is an application for
judicial review of the decision of visa officer G. Margaret Gass, dated
September 12, 1996. By that decision, the visa officer refused the applicant's
application for landing under the independent category. The basis for the
assessment of the application was the necessary requirements for the occupation
of graphic artist. It is the applicant's submission that the application
should have been assessed based on the requirements for arts supervisor.
THE FACTS
The applicant applied for
permanent residence status in Canada at the Canadian embassy in Tel Aviv on
August 16, 1995. In that application, the applicant listed her occupation as
computer graphics specialist.
The applicant says that a
supplementary application was also given to the visa officer prior to the
refusal decision. The respondent disputes this fact. That supplementary
application was said to have contained an additional occupational category,
arts supervisor, for consideration.
On September 5, 1996, the
applicant was interviewed by the visa officer. The notes of the visa officer
contain the following observations:
...Not a computer hard and software graphic specialist.
English is good-- technical
-- she is an artist
...She presently works at publishing house - monthly magazine, health
magazines; she prepares layout, does ads. has done computer courses, computer
graphics. She has 16 years education. Work in Ukraine; Advertising artist; in
charge of a team. Design layouts; seems to have required experience.
Husband works as a driver - semi trailers.
Profession: Diesel Mechanic
Education: 10 years plus courses for mechanics - 6 months...
The visa officer
subsequently made further notes on a document entitled Immigration Assessment
Record-Abroad, which forms the official record of the decision. Those notes
read as follows:
Subjects skills more aptly reflect that of a graphic artist and that she
does design of advertisements. She uses a computer for her graphics but
definitely is not expert on developing and monitoring software and hardware in
the strictly technical sense. She uses her computers to create her designs
graph. Zero demand.
On September 12, 1996 the
visa officer wrote a letter to the applicant denying the application due to the
fact that the applicant had been assessed as a graphic artist, which category
failed to satisfy the occupational requirement. The embassy inadvertently sent
out the unsigned file copy, instead of the original, to the applicant's agent.
This agent was advised of the error on October 14, 1996. On October 15, 1996,
the embassy confirmed in writing that there had been no misunderstanding and
that the decision remained the same.
THE ISSUE
1.
Did the visa officer err by failing to consider the applicant under the
occupational category of arts supervisor?
THE ANALYSIS
The relevant jurisprudence
is well summarized in Saggu v. Canada (M.C.I.) (28 November 1994),
T-2186-92 (F.C.T.D.):
...The visa officer has a duty to assess an application with reference
to the occupation represented by the applicant as the one for which he or she
is qualified and prepared to pursue in Canada. That duty extends to each such
occupation. An order of certiorari and mandamus will be available where there
has been a failure to do so.
...Further, there is a
clear responsibility on the part of a visa officer to assess alternate
occupations inherent in the applicant's work experience: Li v. Canada
(M.E.I.) (1990), 9 Imm.L.R. (2d) 263 (F.C.T.D.). A visa officer must
consider an applicant's aptitudes, previous work experience, and whether or not
this constitutes experience in the intended occupations. ...
The applicant has asserted
that the supplementary application requesting consideration for the category of
arts supervisor was before the visa officer prior to her decision. If so, then
it would be a clear error of law for the visa officer not to have considered
the category of arts supervisor. However, I am of the view that the evidence
does not establish that the supplementary application was, in fact, before the
visa officer.
The applicant relies on
the affidavit of John O'Brien Grant. Mr. Grant is a solicitor practicing in
association with counsel for the applicant. That affidavit states:
5. I am advised by Steve Rosenbaum and I verily believe that as a
result of these qualifications, a supplementary Application For Permanent
Residence for the Applicant was submitted to the Canadian Embassy in Tel-Aviv.
Attached hereto to this my Affidavit as Exhibit "E" is a copy of the
supplementary Application for Permanent Residence which indicates that the
Applicant's intended occupation in Canada is that of an Arts Supervisor and
Computer Graphics Specialist.
Exhibit "E"
contains the described supplementary application, dated September 2, 1996. The
document does not contain, per se, any evidence to suggest receipt by
the respondent.
The respondent, through
the affidavit of Louis Dumas, specifically denies that any supplementary
application was submitted to or received by the Canadian Embassy in Tel Aviv.
Dumas is not the visa officer who handled the applicant's file, but the visa
officer has retired. Dumas states in his affidavit that his personal knowledge
arises from his review of the documents in the file.
The onus is on the
applicant to verify the facts upon which her application is dependent. The
Grant affidavit is of doubtful evidentiary value. He deposed that the source
of his information and belief was the applicant's counsel, Mr. Rosenbaum.
Additionally, Mr. Rosenbaum could not reasonably be expected to have personal
knowledge of the matter since the supplementary application was said to be
filed by the applicant's agent in Israel. Accordingly, on this record, the
applicant has not proven that she submitted a supplementary application.
Reference may also be had
to Rule 332 of the Federal Court Rules, which states in part:
332. (1) Affidavits shall be confined to such facts as the witness is
able of his own knowledge to prove, except on interlocutory motions on which
statements as to his belief with the grounds thereof may be admitted.
Additionally, I refer to sub-Rule
12(1) of the Federal Court Immigration Rules, 1993:
12. (1) Affidavits field in connection with an application shall be
confined to such evidence as the deponent could give if testifying as a witness
before the Court.
The requirements of these
rules have not been met in the circumstances of this case.
The applicant argued that,
in any case, the interview notes of the visa officer showed that she must have
seen the supplementary application. I do not agree. In my view, it is apparent
that the information could just as easily have come from the interview itself.
On the totality of the record, I conclude that it has not been established that
the supplementary application was put before the visa officer.
For these reasons, the
within application is dismissed.
CERTIFICATION
Neither counsel suggested
certification of a serious question of general importance pursuant to section
83 of the Immigration Act, R.S.C. 1985, c. I-2. I agree that this is
not a case for certification.
Darrel
V. Heald
Deputy
Judge
Ottawa, Ontario
July 28, 1997
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