Date:20030408
Docket: IMM-1702-02
Citation number: 2003 FCT 412
Ottawa, Ontario, this 8th day of April, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
CHANDANA NAUTTUDUWA LIYANAGE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Visa Officer Carol K. Jong at the Canadian High Commission in London, dated March 12, 2002, wherein the applicant's application for permanent residence in Canada in the "Independent" category was denied.
[2] The applicant, Mr. Chandana Nauttuduwa Liyanage, is a citizen of Sri Lanka. He submitted his application for permanent residence under the occupation of Computer Programmer per National Occupational Classification ("NOC") No. 2163.0. He was interviewed on February 12, 2002. By letter dated March 12, 2002, received by the applicant on March 26, 2002, the applicant was informed that his application had been refused.
[3] The Visa Officer refused the application because she found that the applicant did not meet the employment requirements for his occupation in Canada, and, particularly, he did not have the education or training required for this occupation as stated in the NOC handbook.
[4] The applicant was awarded the following units of assessment for each of the selection criteria:
Age (44) 10
Occupational factor 00
Education and Training Factor /
Specific Vocational Preparation 15
Experience 00
Arranged Employment 00
Demographic factor 08
Education 15
English 09
French 00
Bonus (Close relative in Canada) 00
Suitability 05
Total 62
[5] The applicant submitted three arguments. First, the applicant argued that the Visa Officer violated a principle of natural justice, second, that she acted without regard to the evidence in allotting the applicant zero points for work experience despite his 20 years of work experience in the field of computer programming, and, third, that she failed to evaluate an alternative occupation that was inherent to the applicant's work experience, namely, computer analyst.
[6] I will address the second argument first. Whether the Visa Officer acted without regard to the evidence in allotting the applicant zero points for work experience despite his 20 years of work experience in the field of computer programming is a factual issue which falls into the discretionary powers of the Visa Officer. Therefore, unless the conclusion is clearly wrong or unreasonable, this Court is not to intervene in the matter.
[7] From a reading from the Visa Officer's CAIPS notes, decision and affidavit, it seems she mainly based her determination that the applicant does not fulfill the work experience requirements on his answers to the questions about computer programming and on the fact that the RPG (Report Programmer Generator), which the applicant said he used for programming, is more of a tool to generate reports and cannot generate a stand-alone application. Unfortunately, the tribunal record does not contain a copy of the questions, nor of the correct answers, but only the applicant's answers. Therefore, it is difficult to understand and assess the meaning of the answers and to determine if the Visa Officer was right in her correction and determination of these answers. Furthermore, the applicant does not identify the questions with which he takes issue nor the reasons why he claims his answers had not been properly assessed. Therefore, I am not in a position to evaluate this evidence.
[8] With regard to the conclusion relating to RPG, I find that the Visa Officer restricted her analysis to one particular computer language or tool. Although she briefly noted the applicant's experience at Coopers & Lybrand and at Jarir Bookstore, she mentioned that he had learned to program RPG, that he knew Fortran, JAVA, and XML, but she seems to discard this knowledge because it was self-taught rather than acquired through formal training. She also seems to have ignored other computer languages or tools which the applicant knew and had worked with since 1982. There is trustworthy evidence, such as the letters from Coopers & Lybrand and from the bookstore, indicating the type of work and the numerous computer tools and languages used by the applicant in his employment. In my opinion, giving zero points for experience was unreasonable considering the evidence on file. I would also add that it was clearly wrong to reject or ignore the knowledge the applicant acquired through self- teaching and from working and using the computer languages or tools. I view this type of knowledge as acquired through valuable experience. If it was the Visa Officer's intention to discard the work experience referred to above, it should have been clearly stated. Also, I tried to understand the reasoning for attaching a value of zero to the experience factor, but was unable to do so because of the visa officer's brief explanation. I do not think that Visa Officers have to give full reasons for the exercise of their discretion, but they should at least explain their reasoning.
[9] I believe the Visa Officer committed an unreasonable error in her evaluation of the applicant's experience and therefore I will send the matter back for redetermination.
[10] Having determined that the applicant succeeds on the above issues, I do not need to address the other issues raised by the applicant regarding the Visa Officer's failure to assess him under an alternative occupation and on the possible violation of natural justice principles.
[11] For the above reasons, I accept the application for judicial review of the Visa Officer's decision.
[12] Counsel for the parties did not suggest any question for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is granted and sent back for redetermination by a different Visa Officer.
"Simon Noël"
Judge
APPEARANCES:
Me MITCHELL GOLDBERG FOR APPLICANT
Me MICHEL SYNOTT
FOR RESPONDENT
SOLICITORS OF RECORD:
Me MITCHELL GOLDBERG
FOR APPLICANT
Me MICHEL SYNOTT
FOR RESPONDENT
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