Siforov v. Canada (Minister of Citizenship and Immigration), 2001 FCT 724

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2001 FCT 724

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Date: 20010628

Docket: IMM-3918-00

Neutral Citation: 2001 FCT 724

Halifax, Nova Scotia, this 28th day of June, 2001

PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

VYACHESLAV SIFOROV

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 visa officer S. B. Bush, dated July 20, 2000, refusing the applicant's application for permanent residence in Canada.

[2] The applicant seeks an order of certiorari directing that the above decision be set aside and an order of mandamus directing that the applicant's case be re-examined and re-evaluated in conformity with the requirements of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") and the Immigration Regulations, 1978, SOR/78-172 (the "Regulations").

Background Facts

[3] The applicant, Vyacheslav Siforov, is a citizen of Ukraine. He made an application for permanent residence in Canada under the independent category, indicating Remedial Gymnast as his intended occupation. This occupation is included in the group "Other Professional Occupations in Therapy and Assessment", (NOC Code 3144). In 1983, the applicant obtained a medical diploma qualifying him as a military physician. The applicant took a course in "Remedial Gymnastics in Rehabilitation Treatment of After-Effects of Injuries and Fractures" from September 1, 1997 to November 29, 1997.

[4] The applicant was not interviewed. The visa officer's CAIPS notes indicate that the applicant's application was refused on September 28, 1999. However, the applicant was not informed until a refusal letter dated July 20, 2000 was sent. The letter reads in part as follows:

In your application, you indicated that your intended occupation in Canada is a Remedial Gymnast. I assessed your application according to the occupation 3144.0 in the National Occupational Classification (NOC). The units of assessment granted to you appear below:

Age 10

Occupation 00

ETF 15

Experience 00

Arranged Employment 00

Demographic Factor 08

Education 15

English/French 06

TOTAL 54

According to NOC , in order to practice this occupation in Canada, "Remedial gymnasts require completion of an approved college program in remedial gymnastics." Your diploma as a physician and your 3 month certificate from MedARS Medical Center is clearly not a complete college program in remedial gymnastics. As you do not have the required qualifications, I cannot grant you any points for the occupation factor or experience. Zero points for the occupational factor or experience is an immediate bar to further processing. Therefore, I am unable to issue an Immigrant Visa to you under subsections 11(1) and 11(2) of the Immigration Regulations because you do not have the education needed to work in this occupation in Canada (as defined by the NOC). I am satisfied that having considered all the information you have provided, I have sufficient information to make a decision without an interview.

Relevant Statutory Provisions

[5] Paragraph 19(2)(d) of the Act states:

19.(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:

. . .

(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.

19.(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_:

. . .

d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.

[6] Subsections 11(1) and 11(2) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations") states:

11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant

(a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience; or

(b) is qualified for and is prepared to engage in employment in a designated occupation.

(2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless

(a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I;

(b) the immigrant has arranged employment in Canada; or

11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant:

a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou

b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire.

(2) Sous réserve des paragraphes (3) et (4), l'agent des visas ne délivre un visa en vertu des articles 9 ou 10 à un immigrant autre qu'un entrepreneur, un investisseur, un candidat d'une province ou un travailleur autonome, que si l'immigrant:

a) a obtenu au moins un point d'appréciation pour le facteur visé à l'article 4 de la colonne I de l'annexe I;

b) a un emploi réservé au Canada; ou

c) est disposé à exercer une profession désignée.

[7] Issues

1. Did the visa officer err in law in his assessment of the applicant's education as it related to the employment requirements of NOC 3144.0?

2. Did the visa officer err in law and in fact by not evaluating the applicant under another occupation for which he may be qualified?

3. Did the visa officer err in law by not informing the applicant of his concerns and thereby not giving the applicant an opportunity to respond?

4. Does the delay in informing the applicant of the decision invalidate the decision?

Analysis and Decision

[8] Issue 1

Did the visa officer err in law in his assessment of the applicant's education as it related to the employment requirements of NOC 3144.0?

I have reviewed the CAIPS notes, the affidavit of the visa officer and the other material filed with the application. For the occupation of remedial gymnast NOC 3144, it is an employment requirement that remedial gymnasts have "completion of an approved college program in remedial gymnastics". In the case at bar, the visa officer assessed the education of the applicant and determined that his education did not meet the requirements set out in the NOC for the occupation. In doing so, the visa officer examined the extract of courses taken by the applicant in obtaining his diploma in medicine and the additional courses taken by the applicant. I find that the conclusion reached by the visa officer in this respect was reasonable.

[9] Issue 2

Did the visa officer err in law and in fact by not evaluating the applicant under another occupation for which he may be qualified?

There is no duty imposed on a visa officer to search out other alternative occupations and then evaluate the applicant in those occupations. It would be a different situation if the applicant had asked to be assessed in an alternative occupation (see Hajariwala v. Canada (Minister of Employment and Immigration et al.) (1988), 6 Imm. L.R. (2d) 222 (F.C.T.D.)). Therefore, I find that the visa officer did not make an error in this respect.

[10] Issue 3

Did the visa officer err in law by not informing the applicant of his concerns and thereby not giving the applicant an opportunity to respond?

There is no requirement imposed on a visa officer to inform an applicant of his concerns as he assesses the material presented by the applicant. It is part of the visa officer's duties to assess the applicant and determine whether or not a visa should issue to the applicant (see my reasons in Bhogal v. Canada (Minister of Citizenship and Immigration), (September 28, 2000) Docket IMM-5472-99 (F.C.T.D.)). The visa officer did not make an error in this respect.

[11] Issue 4

Does the delay in informing the applicant of the decision invalidate the decision?

The application was refused on September 28, 1999, but the applicant was not informed until a refusal letter dated July 20, 2000 was sent. I do not accept that the decision, in the circumstances of this case, can be set aside due to this delay.

[12] The applicant was not present at the hearing or represented by counsel.

[13] No serious question of general importance was presented for certification.

[14] The application for judicial review is dismissed.

ORDER

[15] IT IS ORDERED that the application for judicial review is dismissed.

"John A. O'Keefe"

J.F.C.C.

Halifax, Nova Scotia

June 28, 2001

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-3918-00

STYLE OF CAUSE: VYACHESLAV SIFOROV

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: WEDNESDAY, JUNE 20, 2001

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED: THURSDAY, JUNE 28, 2001

APPEARANCES:

No One Present

FOR APPLICANT

Ms. Marissa Bielski

FOR RESPONDENT

SOLICITORS OF RECORD:

Vyacheslav Siforov

2310 - 100 Wellesley Street East

Toronto, Ontario

M4Y 1H5 FOR APPLICANT

Department of Justice

130 King Street West

Suite 3400, The Exchange Tower, Box 36