Date: 20030417
Docket: IMM-3706-01
Citation: 2003 FCT 450
BETWEEN:
ALEKSEI KOSTANKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GAUTHIER J.
[1] These are my reasons further to my order delivered from the Bench on March 19, 2003.
[2] Alexei Kostanko seeks judicial review of a decision dated June 21, 2001, from the visa officer refusing his application for permanent residency.
Facts
[3] Mr. Kostanko filed his application in December 1998 with the Canadian Consulate in Detroit, U.S.A. His file was transferred at his request to the Canadian High Commission in London, England, in February 2000. It was assessed in March 2000, and Mr. Kostanko was interviewed by the visa officer on March 1, 2001.
[4] During the interview, the visa officer reviewed with the applicant his employment history and expressed concerns about (i) his statement that he started working as a cable installer and powerline electrician in Israel almost immediately after finishing college in the Ukraine, and (ii) his two letters of reference. In effect, the visa officer explained to Mr. Kostanko that, in his experience, Israeli applicants who had immigrated to Israel were usually provided six months of intensive Hebrew language training before they could join the mainstream workforce.
[5] The visa officer also explained during the interview that the reference letters submitted by Mr. Kostanko were worded almost identically and that their wording was taken more or less verbatim from the National Occupational Classification (NOC) definition for the occupation under which Mr. Kostanko was applying. To this, Mr. Kostanko simply replied that the first employer's secretary had written the letter using definitions taken from books in English and that the second employer had used the first employer letter as a model.
[6] In the CAIPS notes and in his affidavit, the visa officer states that he was not satisfied that Mr. Kostanko met the employment requirements for his intended occupation as set out in the NOC and that he consequently awarded him zero (0) units of assessment under "occupational factor". The visa officer was also not satisfied that Mr. Kostanko had performed a substantial number of the duties as set out in the NOC for his intended occupation. Furthermore, he doubted that the applicant had indeed started employment upon his arrival in Israel and was not satisfied that he had been provided with credible evidence of actual work experience. He thus attributed zero (0) units under that criteria in his assessment.
Issues
[7] Mr. Kostanko challenges the decision made by the officer under these two criteria, i.e. occupational factor and experience. He claims that those assessments were patently unreasonable.
[8] Mr. Kostanko also argues that the visa officer erred in law by ignoring relevant portions of his documentary evidence and by failing to give him an opportunity to explain and convince him that they truly represented his work experience. According to Mr. Kostanko, the visa officer should have given him more time to provide him with confirming evidence from those employers either before or after the interview.
Analysis
[9] At the hearing, both parties agreed that if Mr. Kostanko was successful on those issues, he would be entitled to an additional six (6) units under "experience" and an additional five (5) units under "occupational factor", bringing his overall total of units of assessment to sixty-five (65), five (5) less than the seventy (70) units required for an "assisted relative" pursuant to the Immigration Regulations, 1978, (SOR/78-172).
[10] In view of the above, the Court must conclude that even if the visa officer erred as submitted by Mr. Kostanko, his error would not allow the Court to intervene since it would be immaterial to the ultimate decision and would not warrant the Court's intervention.
[11] Neither party submitted a question of general importance for certification.
"Johanne Gauthier"
Judge
Ottawa, Ontario
April 17, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3706-01
STYLE OF CAUSE: Aleksei Kostanko
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 19, 2003
REASONS FOR ORDER: Gauthier J.
DATED: April 17, 2003
APPEARANCES:
Mr. Yerzy FOR APPLICANT
Ms. Jaakkiumainen FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Yerzy FOR APPLICANT
Toronto, Ontario,
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario, M5X 1K6
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