Date: 20030813
Docket: IMM-2036-02
Citation: 2003 FC 977
Toronto, Ontario, August 13th, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
THUDUGALA MUDALIGE PREETHIKA SHYAMALI THUDUGALA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Thudugala Mudalige Preethika Shyamali Thudugala (the "Applicant") seeks judicial review of the decision made by overseas Visa Officer Moira Escott (the "Visa Officer") on April 29, 2002. In her decision, the Visa Officer refused the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of Sri Lanka, submitted an application for permanent residence to the Canadian Consulate General in Buffalo, New York, in November 2000. She applied under the skilled worker category and identified her intended occupation in Canada as a computer programmer, National Occupational Classification ("NOC") code 2163.
[3] The Applicant attended an interview with the Visa Officer on April 23, 2002. At that time, she was questioned about her education and experience relative to her intended occupation.
[4] Her application was rejected in a letter dated April 29, 2002. That letter advised that she had been awarded 61 units of assessment, but zero units for the occupational factor and zero units for experience. The refusal letter stated the reasons for this assessment, in part, as follows:
...I was unable to award you units for the factor of experience because I was unable to conclude you have performed the functions of a computer programmer.
...
You were given a serious of questions to answer to assess your knowledge in the computer programming field. You were unable to answer the questions correctly. I was unable to conclude based on information on file and obtained at interview that you have the qualifications and experience of a computer programmer as per the NOC description. You did not present yourself as a knowledgeable and experienced programmer. You stated at interview that your knowledge and experience as a programmer was limited and you would need to upgrade your skills in order to pursue this occupation in Canada.
[5] The dispositive question in this application is the applicable standard of review. In Seepersaud v. Canada (Minister of Citizenship and Immigration), 2001 FCT 948 (F.C.T.D.) at paragraph 7 the Court said as follows:
I accept the respondent's argument that the determination of whether the applicant performed certain duties is factual. Such a determination is entitled to be reviewed on the most deferential standard. However, from the record, it is impossible to tell how the visa officer came to her factual conclusion. On the other hand, the employer's letter to which the visa officer does not refer in her reasons or in the CAIPs notes suggests the applicant has experience as a Heavy Duty Equipment Mechanic....
[6] In my opinion, that problem is also found in the present case. There is nothing in the record, the affidavit of the Visa Officer or in the transcript of her cross-examination on that affidavit to show that she turned her mind to a comparison of the Applicant's experience, as presented at the interview, and outlined in her employment references, and the duties set out in the NOC for a computer programmer job description 2163. In the result, this Court is unable to identify the reason for the Visa Officer's refusal of this application.
[7] Consequently, this application for judicial review is allowed and the matter remitted to a different Visa Officer for redetermination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a different Visa Officer for redetermination. There is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2036-02
STYLE OF CAUSE: THUDUGALA MUDALIGE PREETHIKA SHYAMALI
THUDUGALA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 7, 2003
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
DATED: AUGUST 13, 2003
APPEARANCES:
Paul Vandervennen
For the Applicant
Greg George
For the Respondent
SOLICITORS OF RECORD: Vandervennen Lehrer
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030813
Docket: IMM-2036-03
BETWEEN:
THUDUGALA MUDALIGE PREETHIKA SHYAMALI THUDUGALA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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