Date: 20030331
Docket: IMM-3002-01
Citation: 2003 FCT 377
BETWEEN:
OMAR. M. JASIM. AL. SAMARRAIE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLANCHARD J.
[1] The applicant seeks judicial review of the November 17, 2000, decision of the designated immigration officer (the "officer") that refused his application for permanent residence in Canada. The respondent Minister seeks costs in the event that the judicial review is dismissed.
Facts
[2] The applicant is a resident of Germany, of Iraqi nationality. On February 29, 2000, he submitted an application under the "independent" category to the Canadian Embassy in Berlin. The applicant applied as a biologist, under category NOC 2121.1.
[3] The officer reviewed his documentation and conducted an interview with the applicant and his wife on November 16, 2000.
[4] Subsequent to the interview, the officer determined that the applicant had not garnered enough points to qualify for permanent residence. On November 17, 2000, she prepared a refusal letter which was sent to the applicant.
Officer's Decision
[5] The officer stated that the applicant had received a total of 60 points, but no points were awarded for the factor of experience in an occupation for which he is qualified. The officer's letter then provided that ss. 11(1) of the Immigration Regulations, 1978 (SOR/78/172), does not permit the issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of experience. The officer stated, at page 7:
You do not meet these requirements because until this date you have only one year of work experience as a laboratory assistant in your home country where, as per your own words, "doing routine medical tests" an occupation for which there is at the moment no demand in Canada.
[6] The officer did not award 5 bonus points for having a close relative in Canada. The officer stated that the applicant was not "able to provide official documentation concerning the family relation between yourself and the person in Canada".
[7] In her affidavit filed June 10, 2002, the officer stated that the applicant had been unable to provide copies of the birth certificates of his relatives. She states that he had explained at the interview that he had not seen his aunt, Mrs. Mohamad, in over 18 years and did not have any specific contact with her.
Standard of Review
[8] In Jang v. Canada (Minister of Citizenship and Immigration ), 2001 FCA 312, [2001] F.C.J. No. 1575 (QL), the Federal Court of Appeal commented on the standard of review of the decisions of visa officers, at para. 12:
An application to be admitted to Canada as an immigrant gives rise to a discretionary decision on the part of a visa officer, which is required to be made on the basis of specific statutory criteria. Where that statutory discretion has been exercised in good faith and in accordance with the principles of natural justice and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, courts should not interfere [Maple Lodge Farms Limited v. Government of Canada et al [1982] 2 S.C.R. 2">[1982] 2 S.C.R. 2 at pages 7-8; To v. Canada, [1996] F.C.J. No. 696 (F.C.A.)].
[9] I am satisfied that the applicable standard of review is that expressed by the Court of Appeal in Jang, supra. I will review the decision of the officer with a view to determining whether it has been made in good faith, in accordance with the principles of natural justice, and to ensure that reliance has not been placed upon irrelevant considerations.
Analysis
[10] The applicant submits that the officer erred in failing to consider his work experience in Germany. He argues that his CV demonstrates more than a year of work experience with the Al-Karkh medical laboratory (1994-95), and supervisor of meat production in a bio-farm in Germany, where he was employed part-time from May 1997 to August 1999.
[11] According to the National Occupational Classification ("NOC"), the duties performed by biologists include some or all of the following: plan and conduct studies of the environment and the population, distribution, structure and functional characteristics and behaviour of plants and animals; conduct ecological and environmental impact studies and prepare reports; study, identify and classify plant and animal specimens; conduct experiments in plant or animal growth, heredity and breeding; prepare reports and plans for management of renewable resources; may supervise biological technologists and technicians and other scientists.
[12] The officer's CAIPS notes make reference to the applicant's work experience in Germany (at page 54). The notes state: "Working while studying at an ecological farm, supervising the production of meat, cheese and milk, doing the required analysis for quality control". This passage suggests that the officer considered this experience, despite the fact that it is not mentioned in her letter. Further, analysis for quality control does not figure in the biologist duties in the NOC description. I am of the view that the officer did not fail to consider the applicant's work experience.
[13] The applicant further submits that the officer ignored evidence of his family relationship with Mrs. Mohamad and erred in not assigning any points for that category. The applicant argues that the requirement to produce the birth certificates of his father and aunt is unrealistic considering the political turmoil in Iraq. The applicant also provides a letter dated December 7, 2000, and sent from Florida from Mrs. Mohamad, which states that the applicant is her nephew and that she has been in continuous contact with him "by telephone and a visit in Germany two years ago". This letter post-dates the decision of the officer.
[14] Setting aside the conflicting evidence concerning when the applicant last saw his aunt, the letter was not considered by the officer because it was submitted after the negative decision. As such, it cannot be considered on judicial review. The onus is on the applicant to provide the requested proof of family relationship and he failed to do so. In the circumstances of this case, the officer's conclusion with respect to the applicant's family relation in Canada is not unreasonable and consequently not open to review by this Court.
[15] Whereas the applicant did not attend the hearing on judicial review, he will have ten (10) days from the date of these reasons for order to submit a proposed question of general importance for certification. The respondent indicated his intention not to propose such a question. The respondent will have a further period of three (3) days to serve and file a reply to the submission of the opposite party. Following that, an order will issue dismissing this application.
Conclusion
[16] In exercising my discretion in the circumstances of this case, I will not grant the respondent's request for costs.
"Edmond P. Blanchard"
Judge
Ottawa, Ontario
March 31, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: I MM-3002-01
STYLE OF CAUSE: Omar. M. Jasmin Alsamarrai v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 5, 2003
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: March 31, 2003
APPEARANCES:
Dr. Sabah Alazzawi FOR APPLICANT
Miss Brenda Carbonell FOR RESPONDENT
SOLICITORS OF RECORD:
Dr. Sabah Alazzawi FOR APPLICANT
Burnaby, B.C.
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Vancouver Regional Office
Suite 900, 840 Howe Street
Vancouver, B.C.V6Z 2S9
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