Date: 20030321
Docket: IMM-4022-01
Neutral citation: 2003 FCT 323
BETWEEN:
ALIREZA ARSHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.:
[1] The applicant seeks judicial review of, and an order setting aside, the decision of an immigration officer, dated July 2, 2001, whereby his application for permanent residence in Canada was refused.
[2] The applicant was to enter Canada with a view to assuming employment as a computer programmer within N.O.C. classification 2163. In the letter refusing his application, the immigration officer advised that in assigning units for various factors to be weighted in his assessment, he had been assigned 15 units for education and training, but 0 units for the occupational factor, and the same for experience. The letter advised the officer was not satisfied that the applicant had accumulated the required minimum of one year's cumulative experience performing a substantial number of the main duties of his intended occupation of computer programmer. The letter went on to say:
"At the interview you indicated that, although you learned some programming languages at school, your relevant work experience is with Foxpro. The common view in the field of programming is that Foxpro is not a true computer programming language but rather is an operating platform. This results in an award of 0 units of assessment under both the "experience" and the "occupation" factors for this evaluation pursuant to the NOC description. Sections 11(1) and 11(2) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants, in the class in which you have applied, who have received zero units of assessment for the experience and occupational factors."
It is urged for the applicant that the officer's description of Foxpro, computer software developed by Microsoft, upon which assessment of the units for occupation and experience were based, was patently unreasonable. That submission is made on affidavit evidence of an assistant to the applicant's counsel which exhibits a description of Microsoft Visual FoxPro, downloaded from Microsoft's web site on the internet, which includes a description of the product and its new and enhanced language features. It is urged that this web site printout "clearly states that FoxPro is a programming language".
The Court is not prepared to infer that from the printout. I am however persuaded that while the affidavit of the immigration officer provides further explanation of his decision, it is the decision itself which is here subject to review. The officer's affidavit supports the conclusion of his letter that the applicant's work experience was centered around the use of FoxPro exclusively and the officer's understanding that this was not a programming language but an application of an operating platform. That understanding of the officer about FoxPro was not made clear to the applicant in the course of the interview so that he might respond to it. Further, the officer did not explore with the applicant how he used the FoxPro system in the work in which he was involved, including his work for almost four years as a senior programmer in charge of a team of programmers in his employment in Iran.
In the circumstances, I conclude that the assessment of the visa officer was patently unreasonable. It was based on the visa officer's understanding of a key element for assessing his experience and his occupation, an understanding which is open to question and which was not made clear to the applicant in the course of his interview.
In the circumstances, the Court orders that the decision of the immigration officer be set aside and the application be referred to the Minister for reconsideration by another immigration officer.
Neither party suggested a serious question of general importance for possible certification pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act. No question is certified.
(signed) W. Andrew MacKay
__________________________
JUDGE
OTTAWA, Ontario
March 21, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4022-01
STYLE OF CAUSE: ALIREZA ARSHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, DECEMBER 5, 2002
REASONS FOR ORDER
AND ORDER BY: MacKAY J.
DATED: March 21, 2003
APPEARANCES BY: MR. MAX CHAUDHARY
For the Applicant
MS. ANDREA HAMMELL
For the Respondent
SOLICITORS OF RECORD: Mr.Max Chaudhary
Chaudhary Law Office
405-255 Duncan Mill Rd.
Toronto, ON
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
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