Date: 20000128
Docket: IMM-1406-99
BETWEEN:
SAKINA KHALID OSMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.:
[1] This is a judicial review of a decision of a visa officer awarding the applicant zero points for experience in the occupation of translator.
[2] The applicant has substantial experience in that occupation, and the visa officer, in the affidavit he swore for the purposes of this review, admitted that she had experience.
[3] The error that occurred in this case is identical to that described by Madame Justice Sharlow in Dauz v. Canada (The Minister of Citizenship and Immigration) (IMM-3402-98, August 20, 1999). I will quote from that decision:
| [5] ...The more important question is how the visa officer came to conclude that the applicant was not entitled to any units for experience. Counsel for the applicant argues that her conclusion in this regard is wrong in fact and law, and perverse. His argument is tied to the relationship between experience and the occupational factor. |
| [6] In assessing the occupational factor, the visa officer was required to ask herself what the employment opportunities are in Canada in the occupation: |
| (a) for which the applicant meets the requirements for Canada as set out in NOC, |
| (b) in which the applicant has performed a substantial number of the main duties as set out in NOC, including the essential ones; and |
| (c) that the applicant is prepared to follow in Canada. |
| [7] The visa officer awarded the maximum 10 units under the occupational factor. From that I must infer that she concluded that the applicant meets the NOC qualifications for employment as a computer system analyst including the educational requirements. I must also infer that she concluded that the applicant had performed a substantial number of the main duties of a computer system analyst as set out in NOC 2162, including the essential ones. How then could the visa officer have given the applicant no units for experience? |
| [8] The visa officer"s reasons for decision are set out in a letter dated May 25, 1998 which says: |
| Your application has been refused because you have failed to demonstrate that you are qualified for your intended occupation in Canada, as defined in the NOC description. Employment requirements for this occupation, according to NOC, are a Bachelor's degree, usually in Computer Science, Mathematics, Commerce or Business Administration or completion of a College Program in Computer Science. You have a Bachelor's degree in Nursing and limited training in computer skills. Accordingly, you cannot be award any units of assessment under the Experience factor, as you have not met the requirement that you have accumulated at least one year of experience in the occupation you intend to follow in Canada. |
| [9] I found this paragraph very difficult to follow. The first two sentences suggest that the visa officer concluded that the applicant's education did not meet the requirements for a computer systems analyst. But that is not consistent with what she must have concluded in order to award the applicant 10 units for the occupational factor. |
[4] Similarly in this case, the visa officer granted the applicant the appropriate point for the occupational factor, which in accordance with Factor 4 of Schedule I to the Immigration Regulations, requires a determination that what is being assessed is "the occupation ... for which the applicant meets the employment requirements for Canada" ... and "in which the applicant has performed a substantial number of the main duties". The visa officer then, however, awarded the applicant zero points for experience, on the ground that she was not qualified in her intended occupation.
[5] As I understand counsel for the respondent"s argument it is that this method of assessment is undertaken because the computer system used by visa officers, doing these assessments, is set up in a manner that requires it, and she argues that it really does not matter whether an applicant"s qualifications are assessed by reference to the occupational factor (Factor 4) or the experience factor (Factor 3) because in either case the applicant is simply not qualified.
[6] In my view, an applicant has the right to be assessed in accordance with the regulations, and to have an explanation given to him or her that is coherent by reference to the applicable legal provisions.
[7] In addition, in this case, there is a significant issue with respect to the NOC description of the qualifications required for the occupation of translator in Canada. The NOC says that in order to follow that occupation a person is required to have "a bachelor"s degree in translation or a related discipline" (emphasis added). There appears to be some question as to whether there is such a degree given in Canada, and if there is not, then, a degree in a related discipline would also be a meaningless category.
[8] In any event, the decision under review will be quashed and the applicant"s application will be referred back for reconsideration. This will allow not only for a reconsideration of the applicant"s particular situation but also for some assessment as to the accuracy of the NOC description referred to above.
"B. Reed"
J.F.C.C.
TORONTO, ONTARIO
January 28, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: SAKINA KHALID OSMAN |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: THURSDAY, JANUARY 27, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: FRIDAY, JANUARY 28, 2000
| APPEARANCES: Mr. Bill Wong |
| SOLICITORS OF RECORD: Bill Wong |
Barrister and Solicitor
1600-180 Dundas St. W
Toronto, Ontario
M5G 1Z8
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 19991128
Docket: IMM-1406-99
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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