Ay v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1001

Date: 20010807

Docket: IMM-5687-00

Neutral citation: 2001 FCT 1001

BETWEEN:

                                                                 CESAR G. PALU-AY

                                                                                                                                                    Applicant

                                                                            - and -

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                              REASONS FOR ORDER

LEMIEUX J.

BACKGROUND

[1]                 Mr. Cesar G. Palu-ay (the "applicant"), a citizen of the Philippines, made an application for permanent residence in Canada on May 15, 1998, in the independent category with the intended occupation of "Operating Room Technician", and listing in that application his current occupation as "nurse/entrepreneur". The applicant was interviewed by the visa officer on September 10, 2000.

[2]                 On October 4, 2000, the applicant was advised by the visa officer that his application had been refused, as he had obtained only 66 of the 70 units required, including 0 units for the occupational factor and 6 units for experience.

[3]                 The visa officer's refusal letter, after setting out the units he received on the assessment as Operating Room Technician, went on to hold:

Sub-sections 11(1) and 11(2) of the Immigration Regulations do not permit the issuance of a visa to applicants who have not been awarded at least one unit of assessment under the Occupational Factor and the Experience factor. You were not awarded any units under the Occupational Factor because I am not satisfied that you have performed a substantial number of the main duties as set out in the National Occupational Classification.

You were not awarded any units under the Experience Factor because you failed to demonstrate that you possess the required minimum of one year of Experience in that occupation as defined in the NOC.

[4]                 As is apparent, the refusal letter is inconsistent on its face on the award of units for the experience factor. In an affidavit filed in this judicial review proceeding, the visa officer explained that the six points for the experience factor shown in the point assessment portion of her refusal letter was in error and, for the reasons expressed, she never intended to award him any units for that factor.

[5]                 The applicant attacks the visa officer's decision by arguing that she:

(1)        misinterpreted the NOC requirements for the intended occupation of Operating Room Technician and the requirement for additional training;

(2)        breached the duty of fairness in the manner she carried out the interview and, specifically, because of the lack in her questioning of the applicant in the area of the performance of his duties as those duties are set out in the NOC, as well as her lack of questioning in assessing the experience factor.

LEGISLATION AND THE NOC

[6]                 Factor 4 (the occupational factor) in Schedule I to the Immigration Regulations 1978, (the "Regulations") as amended, reads as follows:

[7]                 Factor 2 (the educational and training factor) in that same Schedule reads in part:

[8]                 NOC 3233, incorporated into the Regulations by section 2 thereof, is entitled "Registered Nursing Assistant" and lists "Operating Room Technician" as one of the examples of titles classified in this group.

[9]                 NOC 3233, under "Main duties", states that Operating Room Technicians perform some or all of the following duties:

--             Prepare patients for surgery by washing, shaving and sterilizing the patients' operative areas

--            Assist in surgery by laying out instruments, setting up equipment, assisting surgical teams with gowns and gloves and passing instruments to surgeons

--             clean and sterilize the operating room and instruments.

[10]             NOC 3233, under "Employment Requirements" provides:

--         Completion of a college or other approved program for

registered nursing assistants is required.

--         Operating room technicians require either additional

academic training in operating room techniques or on-the-job training.

THE EVIDENCE ON THIS JUDICIAL REVIEW

(a)      The CAIPS Notes

[11]            The extract from the visa officer's CAIPS notes relevant to the issue in this judicial review is as follows:

Applicant stated he has been working as a nurse for approximately 18 years, mainly in the Emergency and Surgical Ward departments. Some of his experience was in Saudi Arabia.

Applicant stated he had not worked in an operating room and has not had any additional academic training or on-the-job training for this intended occupation. Applicant had difficulty explaining his previous duties when asked to elaborate on his experience:

Q.            Describe what duties you performed in relation to your intended occupation?

A.            As a scrub nurse.

Q.            Could you expand on that more?

A.            ... No comment from the applicant. . he just looked at me.                      . . .

I believe applicant to be a nurse and have some general knowledge of operating room based on his occupation but not any experience in that occupation.

Applicant has not worked since July 1997 in his profession. Applicant stated he has been watching his land as he does not agree with the agarian reform.

(b)        The Visa Officer's Affidavit

[12]            I read the visa officer's affidavit to be confirmatory of her CAIPS notes. She states why she awarded the applicant zero points under Factor 4, the occupational factor. She was not satisfied he had performed a substantial number of the main duties set out in the NOC because:

7.             [...] the Applicant was unable to describe what duties he performed in relation to his intended occupation, nor to offer any description of his duties as a scrub nurse.

[13]            In terms of the experience factor, for which the visa officer said she intended to award 0 points, her affidavit says that he had not actually performed a substantial number of the main duties of an Operating Room Technician as set out in the NOC, and added that he had told her he had never worked in an operating room and he had no additional academic or on-the-job training for this occupation. She added:

10.           I advised the Applicant of my decision regarding his lack of experience in his intended occupation. I gave him the opportunity to ask questions and to provide a rebuttal. He did neither. Indeed, he had difficulty explaining his previous duties as a nurse when asked to elaborate on his experience.

(c)        The Applicant's Affidavit

[14]            In his affidavit, the applicant notes having obtained a Bachelor of Science degree in Nursing and then a M.A. in Nursing Administration and Supervision. He states that in 1978, he passed the Philippines National Nurses Board.

[15]            He recites holding the position of Staff Nurse at a University Hospital in Metro Manilla, from 1978 to 1981.

[16]            During the period 1982 to April 1988, the applicant served as Senior Nurse - Surgical Ward, at Beish Hospital, Gizan, Kingdom of Saudi Arabia. When he arrived there, he was immediately assigned as Senior Nurse at Beish Hospital. Since the hospital was newly-opened by the Ministry of Health, the operating room was then installed and placed under his supervision. As Senior Nurse of the Surgical Ward, the applicant rendered staffing services to the surgical and operating room respectively, and he served as Operating Room Technician due to the shortage of O.R. nurses in the hospital within the period of his employment in the facility.

[17]            The applicant's affidavit does not spell out his duties as Staff Nurse and Head Nurse at the Fatima Medical Centre in Manilla during the period 04/90 to 07/97. He states that in 1997, he applied for registration with the Alberta Association of Registered Nurses, and that process has been held up by his having to show evidence of competence in the English language. He deposed his intention to write the Canadian Nurses Association test.

Analysis:

[18]            Counsel for the applicant argued the visa officer misread NOC 3233 in terms of being physically present in the operating room. He says the first of the three duties reproduced in paragraph 9 of these reasons could be performed outside the operating room.

[19]            I see no merit in this argument. Counsel for the applicant reads NOC 3233 microscopically. It is clear that read as a whole that some, I would say most, of the duties of an operating room technician requires operating room presence. The applicant has not impeached through cross-examination the visa officer's finding confirmed by the CAIPS notes that he told her he had never worked in an operating room.

[20]            The applicant argued the visa officer was wrong in holding that a component of the employment requirement for an operating room technician was additional academic training in operating room techniques or on-the-job training which he admitted he did not have. He argued he had obtained the maximum number of units of 15 in ETF (Factor 2) which incorporated on-the-job training.

[21]            I do not accept this argument. Clearly, Factor 2 contemplates a mix of formal education and on-the-job training specified in the NOC. NOC 3233 specified formal college education which the applicant has and additional on-the-job training. The applicant by his own admission, did not meet this requirement.

[22]            Lastly, I fail to see, in the circumstances of this case, that the visa officer treated the applicant unfairly during the interview when she explored with him his duties and experience in his intended occupation. Counsel for the applicant said she asked him only a couple of questions in this area. I am satisfied the record establishes that the visa officer reasonably explored the applicant's experience in his intended occupation and was not convinced, on the ground the applicant was not forthcoming, he had performed a substantial number of the main duties including essential ones. I see no basis for intervention.

DISPOSITION

[23]            This application for judicial review is dismissed. No certified question arises.

                                                                                    "François Lemieux"

                                                                                                   J U D G E       

OTTAWA, ONTARIO

SEPTEMBER 7, 2001