Date: 20010206
Docket: IMM-4395-99
Citation: 2001 FCT 30
Ottawa, Ontario, this 6th day of February, 2001
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
MUHAMMAD TANVEER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of a visa officer rendered June 16, 1999, wherein applications for immigrant visas under the independent category were denied.
Background Facts
[2] The applicant, a citizen of India, applied for an immigrant visa to Canada in 1997 and requested assessment in the occupation of Architect - NOC 2151. The applicant had obtained a Bachelor of Architecture degree in Pakistan. From 1984 to 1997, the applicant had been engaged in some employment relating to his education.
[3] The visa officer sent a letter to the applicant on October 25, 1997, indicating that the application could not be screened until a certification decision was made by the Canadian Architectural Certification Board.
[4] Subsequent to filing the application, the applicant's consultant (Sun Enterprises) discussed the advisability of requesting assessment as an Interior Designer. The motivation for this change was the fact that certification of the applicant's education would be required by the Architectural Certification Board--something that would tend to delay the application and possibly necessitate a trip to Canada by the applicant. With the applicant's concurrence, the consultant wrote to the visa officer:
| With reference to the above mentioned, kindly note that in addition to the occupation of Architects our client is also trained and experienced as an Interior Designer 5242, his level of satisfaction is at least 90%. Also please note that the details of his experience as an Interior Designer are mentioned in his CV that was submitted to you along with the application (copy attached). |
| Sir/Madam given the licensing difficulties as an Architect our client for understandable reasons wishes and prefers to be considered for the occupation of Interior Designer 5242. For the reasons mentioned above the client is at the present time not applying for the licensing from the Canadian Architectural Certification Board. |
(Page 81, Certified Tribunal Record)
[5] The visa officer took this letter as an indication that the applicant was withdrawing his request for assessment as an Architect and was replacing it with a request for assessment as an Interior Designer.
[6] The visa officer assessed the application under the occupation of Interior Designer and found that there was no indication that Interior Designer is an included occupation within Architect. The visa officer found that the applicant's work experience did not show that he had actually worked as an Interior Designer and therefore awarded zero units of assessment for experience. The applicant achieved only 56 units of assessment (below the 60 required to be granted an interview) and the visa officer determined that there were no reasons for exercising discretion to grant the applicant an interview. The visa officer also noted that the applicant had indicated his occupation as Computer Operator when he completed the application.
[7] The complete assessment was as follows:
| Education and Training Factor 15 |
Applicant's Arguments
[8] The applicant argues that the letter from the consultant did not clearly indicate that the applicant was withdrawing the request for assessment as an Architect. According to the applicant, he did in fact wish to be assessed as an Architect, but preferred assessment as an Interior Designer and secondarily was relying on assessment as an Architect.
[9] Accordingly, given the wishes of the applicant and the fact (according to the applicant) that there was an ambiguous letter sent, the visa officer ought to have assessed the applicant both as an Interior Design and an Architect.
[10] The applicant argues that the letter makes it obvious that the applicant was confusing assessment of credentials (which can be done outside Canada) with an application for licensing as an Architect, and that the visa officer should have noticed this and understood that the applicant really could be assessed as an Architect.
[11] The applicant relies on the affidavit of the applicant and a recent case of this Court, Zhang v. Canada (Minister of Citizenship and Immigration) (1999), 177 F.T.R. 151 (F.C.T.D.), wherein the visa officer is held to be under a duty to assess on both occupations in the circumstances of any ambiguity or doubt.
Respondent's Arguments
[12] The respondent submits that the decision of the visa officer to assess only in Interior Design was based on the applicant's own wishes (a question of fact) and was purely within the province of the visa officer.
[13] The respondent alternatively submits that if the visa officer is held to have fallen into error by not assessing the applicant as an Architect, the error is not fatal as the applicant is not qualified as an Architect according to the NOC for the occupation. The applicant did not apply for registration nor had he applied to have his academic qualifications assessed. Therefore, it was impossible for the applicant to be registered as an Architect and therefore he is ineligible to pursue that occupation.
[14] The applicant could not have been granted a visa under the occupation of Architect even if the visa officer had considered the question.
Applicable NOC Provision and Law
[15] NOC 2151 Architect states the following:
[ · ] Completion of examinations set by provincial associations of architects is required.
[ · ] Registration with the provincial association of architects in the province of work is required.
Additionally, prior to registration with any of the provincial associations, applicants must have their academic qualifications assessed and certified by the Canadian Architectural Certification Board.
[16] That the law imposes upon the visa officer a duty to assess the immigrant in the
requested occupation is not questioned. However, most relevant to the circumstances in the case at bar is Zhang, supra. In that case, Justice Gibson held that in the fact of any ambiguity about the intention of the immigrant in circumstances where the requested occupation is changed, the visa officer had a duty to assess in all indicated occupations.
[17] In Zhang, supra, the visa officer received a letter from a consultant which stated:
Please be advised that Mr. Zhang has received an acceptable result of his informal assessment of qualifications for engineer. After close scrutiny of Mr. Zhang's education background and experience, we find that his qualifications are closer to those of an electronic engineer...
Grateful if the designated immigration officer could take note of this change in processing the application in concern.
[18] The applicant in that case had originally requested assessment as a
telecommunications line and cable worker. He had experience in this occupation. At the interview, the applicant was asked if he wanted to have his occupation changed to electronic engineer. The applicant deposed that he understood that he had to choose one or the other, but not both. Justice Gibson stated at page 154 that there was:
. . . at least some doubt as to whether the applicant was seeking assessment in alternative occupations or had withdrawn the first occupation in which he sought assessment and substituted another. Given the ambiguity, and given the somewhat ambiguous exchange quoted above from the applicant's affidavit . . . I am satisfied that the onus remained on the visa officer to fully assess the applicant in both occupations and to set out the results of those assessments in any letter rejecting the applicant's application.
Issue
[19] Did the visa officer err in interpreting the letter from the applicant's representative
as stating that he wished to be assessed as an Interior Designer instead of the occupation of Architect?
[20] The standard of review to be applied to a visa officer's decision with respect to a
finding of fact is patent unreasonableness.
[21] The visa officer found as a fact that the applicant wished to be considered for the
occupation of Interior Designer instead of the occupation of Architect which was the occupation listed in his application.
[22] The visa officer's finding that the applicant wished to be assessed as an Interior
Designer was based on the following excerpt from the applicant's consultant's letter to the visa officer:
Sir/Madam given the licensing difficulties as an Architect our client for understandable reasons wishes and prefers to be considered for the occupation of Interior Designer 5242. For the reasons mentioned above the client is at the present time not applying for the licensing from The Canadian Architectural Board.".
[23] In my opinion, the determination by the visa officer was not only not patently
unreasonable, but it was a very reasonable decision in the circumstances. It is not the role of this Court to interfere with a very reasonable decision of the visa officer.
[24] My opinion that the visa officer was correct is fortified by the fact the applicant,
in order to qualify in the occupation of Architect, required registration with the provincial association of architects in the province of work. Since the applicant stated that he was not applying for this registration, he could not qualify in the occupation of Architect. This supports the finding that he wished to be assessed for the occupation of Interior Designer - 5242.
[25] The application for judicial review is dismissed.
[26] Neither party wished to have a serious question of general importance certified
pursuant to subsection 83(1) of the Act.
ORDER
[27] IT IS ORDERED that the application for judicial review be dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
February 6, 2001
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