Raghunath v. Canada (Minister of Citizenship and Immigration), 2003 FCT 794

Date: 20030626

Docket: IMM-4083-01

Citation: 2003 FCT 794

BETWEEN:

                                                SRIVILAS GOPINATH RAGHUNATH

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

[1]                 These reasons follow the hearing of an application for judicial review of a decision of a Visa Officer rejecting the Applicant's application for immigration to Canada. The decision under review is dated the 16^th of July, 2001.

[2]                 The Applicant applied for immigration to Canada on the 11^th of May, 1999 citing his qualifications and desire to pursue employment in Canada as an electrical and electronics engineer. He received a preliminary assessment of 64 units of assessment, insufficient units to qualify for immigration. He was recommended for interview to assess his experience, settlement prospects and funds. The CAIPS notes on the Tribunal record, immediately following the recommendation for interview, note: "CCPE required".

[3]                 In explanation of the requirement of a "CCPE" (Canadian Council of Professional Engineers) assessment, the Respondent's affiant attests at paragraph 6 of his affidavit:

The CCPE assessment is routinely requested by visa officers who are assessing applicants who request assessment as engineers and have not taken an engineering degree in Canada or cannot otherwise show that they are eligible to be registered as a professional engineer in Canada. Primarily, it assists the visa officer to make the determination as to whether an applicant meets the NOC requirements. In the following I quote from the CCPE's website to show how this assessment is used by Citizenship and Immigration Canada:

"The Initial Assessment of Engineering Qualifications program was developed by the Canadian Council of Professional Engineers (CCPE) in conjunction with Citizenship and Immigration Canada. It is designed to assess engineering qualifications of individuals seeking permanent resident status in Canada. The assessment helps CIC to determine whether applicants for permanent resident status qualify to immigrate to Canada as skilled workers. It also helps prospective immigrants to assess whether they have the engineering qualifications required to be registered as professional engineers in Canada and licensed to practise engineering."

"The Initial Assessment program, through the CCPE List of Foreign Engineering Educational Institutions and Professional Qualifications, helps the (provincial and territorial engineering) associations/ordre to evaluate the academic and professional qualifications of immigrants seeking to be registered as professional engineers in Canada and licensed to practise engineering."

"However, the Initial Assessment program is not part of the registration process to become a licensed professional engineer in Canada. Your initial assessment result is used by CIC solely for immigration selection purposes."

[4]                 The Respondent's affiant further attests that the requirement of a CCPE assessment derived from a conclusion that the Applicant had not submitted sufficient evidence to establish that his credential were such as to allow him to work in Canada as an engineer.

[5]                 The Applicant, through his agent, confirmed that a CCPE assessment had been applied for. The assessment took longer to obtain than originally anticipated. Extensions of time to submit the assessment were provided. In the interim, two other assessments of the Applicant's qualifications were submitted.

[6]                 In a letter dated the 19^th of April, 2001, the Applicant's agent appeared to withdraw the willingness of the Applicant to provide a CCPE assessment. He wrote:

... Mr. Raghunath is hesitant to get the assessment done from CCPE as this would cost him additional money and the assessment is for the same purpose as the assessment done by the University of Toronto.^[1]

The reference to an assessment done by the University of Toronto was to a written assessment by then already submitted to the Respondent relating to academic equivalency and unrelated to qualifications for registration as a professional engineer in Canada and licensing to practice engineering in Canada.

[7]                 Further time passed. A CCPE assessment was not submitted on behalf on the Applicant. In the result, as earlier noted, by letter dated the 16^th of July, 2001, more than twelve (12) months after the Applicant was personally advised that a CCPE assessment was required, the letter rejecting the Applicant's application for immigration to Canada issued. It noted:

In this letter [a letter sent by the Respondent to the Applicant in care of his immigration agent dated the 22^nd of May, 2001 reminding the Applicant that a CCPE assessment was required], you were also informed that if I did not receive any news from you within thirty (30) days from the date of that letter, it would be assumed that you were no longer interested in pursuing your application and that your application would be refused.^[2]

No award of units of assessment was reflected in the decision letter.

[8]                 In Kaur v. Canada (Minister of Employment and Immigration)^[3] Justice Rothstein, then of the Trial Division, wrote at paragraph [3]:

Where documentation is properly sought by the visa officer and is not produced, the applicant cannot be granted admission, as she is a person who has not complied with a request lawfully made under the Immigration Act.

[9]                 Justice Rothstein concluded at paragraph [5] of his reasons:

Whatever the reason, documents requested by the visa officer were not received. Under the circumstances, the visa officer did not err in rejecting the applicant's application. Where relevant documentation is sought and is not provided, a visa officer may refuse an application for permanent residence by virtue of subsection 9(3) and paragraph 19(2)(d) of the Immigration Act.

[10]            I am satisfied that the quoted words of Justice Rothstein are applicable on the facts of this matter. It was not in question before me that the required CCPE assessment was documentation relevant to the Applicant's application for immigration to Canada.

[11]            It simply was not open to the Applicant or his agent to reject the Respondent's requirement and to impose on the Respondent its determination that alternative assessments, not equal in their scope to a CCPE assessment, should be sufficient.

[12]            Based upon the foregoing analysis, this application for judicial review will be dismissed. When advised of the Court's conclusion, neither counsel present at hearing recommended certification of a question.

[13]            No question will be certified.

                               J.F.C.C.                                

Ottawa, Ontario

June 26, 2003                                                                                           

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-4083-01

STYLE OF CAUSE: SRIVILAS GOPINATH RAGHUNATH v. MCI

PLACE OF HEARING:                                   TORONTO

DATE OF HEARING:                                     Thursday June 19, 2003

REASONS FOR ORDER:                           Gibson J.

DATED:                      June 26, 2003

APPEARANCES:

Mr. Max Chaudhary                                             FOR PLAINTIFF / APPLICANT

Mr. Lorne McClenaghan                                                  FOR DEFENDANT/ RESPONDENT

SOLICITORS OF RECORD:

Mr. Max Chaudhary

Barrister and Solicitor

Chaudhary Law Office

18 Wynford Drive

North York, Ontario M3C 3S2                                       FOR PLAINTIFF/APPLICANT

Mr. Lorne McClenaghan      

Department of Justice

130 King Street West

Suite 3400, Box 36

Toronto, Ontario M5X 1K6                                             FOR DEFENDANT/ RESPONDENT