Date: 20000518
Docket: IMM-533-99
Ottawa, Ontario, this 18th day of May, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
ALAN KIN CHUNG HO
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 pursuant to section 18.1 of the Federal Court Act by Alan Kin Chung Ho ("Mr. Ho" or "the applicant") of the decision of the designated immigration officer, Irma Roa dated November 23, 1998 wherein Ms. Roa denied Mr. Ho"s application for an immigrant visa.
[2] Mr. Ho"s application for permanent residence was received by Employment and Immigration Canada on April 29, 1997. Mr. Ho had worked as an immigration officer at Hong Kong for approximately 10 years. He has a Bachelor of Arts degree from York University. His dependants are his wife and Canadian born daughter. Mr. Ho requested assessment under the intended occupation of administrative officer.
[3] Mr. Ho was assessed by the visa officer under the intended occupation of administrative officer (CCDO 1179-182).
[4] Mr. Ho received the following units of assessment:
| ADMINISTRATIVE OFFICER (CCDO 1179-182) |
| [5] Since Mr. Ho received zero units of assessment for experience, he did not qualify |
for an immigrant visa under the Immigration Regulations.
| [6] The applicant has, in his argument, raised the following issues: |
| 1. The visa officer failed to consider whether some of the duties performed by the applicant as an immigration officer, matched any of the duties of an administrative officer as set out in CCDO 1179-182. |
| 2. The CAIPS notes, as found in the Tribunal Record, ought not to be considered as evidence. |
| 3. The visa officer based her decision on an erroneous finding of fact that she made in a perverse or capricious manner or without regard for the material before her. |
| 4. The number of points granted for personal suitability should have been greater. |
| 5. The application for permanent residence should have been initially assessed pursuant to the requirements of the CCDO and then, if the applicant was unsuccessful under the CCDO, he should then have been assessed under the NOC requirements. |
| [7] I will begin by addressing issue number 5 which concerns the procedure to be |
followed by a visa officer who processes an application for an immigrant visa that was filed prior to May 1, 1997. Section 2.03 of the Immigration Regulations states:
| 2.03 (1) For the purpose of an assessment by a visa officer under section 8, in respect of an application for a visa that was made under section 9 of the Act before May 1, 1997 and was still pending on that date, the applicable factors set out in Schedule I, as that Schedule read immediately before May 1, 1997, shall apply.
(2) If an application for a visa referred to in subsection (1) is refused, the visa officer shall reassess the applicant in accordance with the applicable factors set out in Schedule I, as that Schedule read on May 1, 1997.
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| 2.03 (1) L'appréciation par l'agent des visas aux termes de l'article 8, dans le cadre d'une demande de visa pendante au 1er mai 1997 qui a été présentée avant cette date en vertu de l'article 9 de la Loi, se fait suivant les facteurs applicables prévus à l'annexe I dans sa version antérieure au 1er mai 1997.
(2) Lorsque la demande visée au paragraphe (1) est refusée, l'agent des visas apprécie à nouveau le demandeur suivant les facteurs applicables prévus à l'annexe I dans sa version du 1er mai 1997.
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| [8] This section requires that an application that was filed prior to May 1, 1997 and |
that was still pending on May 1, 1997, must initially be assessed by the visa officer using the CCDO (Canadian Classification and Dictionary of Occupations). If the application is refused using the CCDO, then the visa officer must assess the application using the NOC (National Occupation Classification), which came into force on May 1, 1997. The CCDO and NOC are systems used to categorize occupations based primarily on the skills and training required to perform the work.
| [9] In the present case, there is no evidence before me that the visa officer carried out |
an assessment of the applicant under the NOC. This she was required to do by law as Mr. Ho"s application was filed on April 29, 1997 and was still pending on May 1, 1997. The visa officer has not applied the applicable law and has therefore made an error of law. For this reason, I would grant the application for judicial review.
| [10] Issue number 1 alleges that the visa officer failed to consider whether some of the |
duties performed by the applicant or an immigration officer matched any of the duties of an administrative officer. There is no doubt that any experience from another position that is applicable to the intended position must be broken down and the applicant must be given credit for that portion of experience that relates to an administrative officer (see Hajariwala v. Canada (MEI) (1988) 6 IMM.L.R. (2d) 222 (F.C.T.D.). There is nothing on the record to indicate that this was done.
| [11] The applicant has also argued that the CAIPS notes (Permanent Residence File) |
as found in the Tribunal Record should not be considered as evidence by me. I am of the opinion that the CAIPS notes are evidence before this Court and that there is no necessity of an affidavit of the visa officer to make the CAIPS notes admissible as evidence (see Awwad v. M.C.I., F.C.T.D., January 26, 1999, IMM-1003-98).
| [12] The applicant also alleges that the visa officer based her decision on erroneous |
findings of fact that she made in a perverse or capricious manner or without regard for the material before her. It may be that the visa officer ignored the fact that the applicant may have obtained some experience in his position as immigration officer that would be applicable in granting him his units of assessment for an administrative officer. It is difficult to tell from the record whether this is so. The disposition I will make in this application will not require a decision on this point.
| [13] The final issue raised by the applicant is the number of points (units of |
assessment) granted for personal suitability (3 points) seemed low, especially when the maximum units that could be granted is 10. I tend to agree with the applicant since the applicant was able to live in Canada and obtain a Bachelor of Arts degree from York University in Toronto. He has had a permanent job since graduation and has parents and a brother who are permanent residents of Canada. I will not make a decision on this point as it is not necessary in light of my disposition of the application.
| [14] I am of the opinion that the application for judicial review should be granted as |
no assessment of the applicant under the NOC was carried out by the visa officer and
the applicant"s application to become a permanent resident of Canada should be remitted to another visa officer for a re-determination. As the issues are intertwined, I believe it is necessary to hear the whole application anew.
| [15] At the conclusion of the hearing, counsel for the respondent indicated that it did |
not wish to certify a question pursuant to subsection 83(1) of the Immigration Act. Counsel for the applicant indicated that he wished to await the release of my decision and if my decision was to the effect that there should have been further assessments under NOC, he would not be asking to have a question certified. Accordingly, there is no request to have a question certified.
ORDER
| [16] IT IS ORDERED that the applicant"s application for permanent residence in |
Canada be heard and determined by another visa officer.
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
May 18, 2000
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