Date: 20000719
Docket: IMM-3815-99
BETWEEN:
PETER KOPYL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Peter Kopyl is a 31 year old citizen of Ukraine who applied for permanent residence in Canada as an Independent-Skilled worker under the category of Facility Operations Manager, National Occupational Classification ("NOC") 721.0.
[2] He brings this application for judicial review of the decision of Lisa Norris, a visa officer at the Canadian Embassy in Warsaw, Poland, dated June 17, 1999, whereby Ms. Norris determined that Mr. Kopyl"s application for permanent residence in Canada was refused.
THE FACTS
[3] Mr. Kopyl was educated as a Marine Navigator.
[4] From 1994 to 1997, he was employed as an Operation Manager at a transportation company called Common Bridge Ltd. in Odessa. From 1997 to the time his application was assessed, Mr. Kopyl was employed with another transportation company, also in Odessa, as its Operations Manager.
[5] Mr. Kopyl attended a personal interview at the Embassy with the visa officer on June 9, 1999. The interview lasted approximately 30 minutes. Mr. Kopyl presented two recommendation letters from his employers, and the visa officer also tested Mr. Kopyl"s English language skills.
[6] By a letter dated June 17, 1999, Ms. Norris informed Mr. Kopyl that his application for permanent residence in Canada was refused.
[7] Ms. Norris determined that Mr. Kopyl did not have experience for the occupation of Facility Operations Manager, and awarded zero units of assessment for experience in that category. Ms. Norris did award one unit of assessment under the occupational factor category.
[8] The complete assessment was as follows:
| Educational Training Factor (ETF) 15 |
[9] Ms. Norris awarded Mr. Kopyl six units for the language factor, having concluded after the interview that he could speak, read and write English "well" rather than "fluently" as had been indicated in his application.
THE ISSUES
[10] Before me in oral argument, Mr. Kopyl"s counsel based his argument on the ground that this case was indistinguishable from that considered by this Court in Dauz v. Canada (Minister of Citizenship and Immigration) (1999), 2 Imm. L.R. (3d) 16 (F.C.T.D.).
[11] In Dauz, in circumstances where the applicant had given some evidence of relevant experience, Sharlow, J. found the decision of the visa officer awarding some units under the occupational factor but zero units for experience to be perverse. The conclusion that the decision was perverse was based on the ground that Schedule I to the Immigration Regulations, 1978, SOR/78-172, as amended ("Regulations"), required a visa officer, in assessing the occupational factor, to consider what the employment opportunities in Canada were for the occupation in which the applicant had performed a substantial number of the main duties set out in the NOC description.
[12] The perversity flowed from the fact that awarding even one point under the occupational factor recognized some experience, which should have been reflected in at least one unit of assessment under the experience factor.
[13] In the present case, the Minister argued that even if the visa officer had erred in the assessment of the applicant"s experience, which was not conceded, the error was not material. The Minister noted that a successful applicant was required to achieve a minimum of 70 units, and stated that even if the visa officer had awarded the maximum points for experience, Mr. Kopyl would only have received 68 units.
[14] Therefore, counsel for the Minister submitted that, unless the Court was prepared to find that the visa officer erred in her assessment of the applicant"s language skills so as to increase the awarded points, the application for judicial review must fail.
[15] As a result, the issues to be determined are:
| (i) Whether or not the granting of one point for the occupational factor rendered the award of zero points for experience perverse?; and |
| (ii) If so, was the error material? |
ANALYSIS
[16] As the visa officer was no longer employed by the Embassy or the Department, no affidavit was provided in opposition to this application.
[17] While counsel for the Minister urged me to conclude, on the basis of the visa officer"s statement in the refusal letter that "you do not have experience in this occupation", that the visa officer properly determined that the applicant had no relevant experience, I am not prepared to so conclude.
[18] The visa officer did, in her CAIPS notes, acknowledge that Mr. Kopyl functioned as a manager of logistics for shipping and warehousing, but concluded he was not a Facility Operation Manager as described in the NOC because he was not responsible for the harbour, but was simply an employee of a company using the harbour.
[19] In view of the similarity in the duties performed by Mr. Kopyl to the main duties found in the NOC description of a Facility Operation Manager, I accept based on the grounds articulated by Sharlow, J. in Dauz, supra, and followed by Reed, J. in Osman v. Canada (Minister of Citizenship and Immigration) (2000), 4 Imm. L.R. (3d) 62 (F.C.T.D.), that the visa officer erred in awarding some points for the occupational factor, but no points under experience.
[20] The more difficult question is whether such an error was material.
[21] I am not prepared to intervene in the visa officer"s assessment of Mr. Kopyl"s language skills. That assessment was based upon the visa officer"s evaluation of Mr. Kopyl"s spoken word and comprehension skills as demonstrated before her. No persuasive evidence was adduced that the visa officer committed any reviewable error in that assessment.
[22] However, the visa officer awarded 7 units to Mr. Kopyl for personal suitability, noting that he had done considerable planning and research for a move to Canada. The officer noted that Mr. Kopyl was working to improve his English and to obtain a recognized assessment, both to assist in his establishment in Canada.
[23] Counsel for the Minister acknowledged that the personal suitability assessment was relatively high which, when coupled with an award of points for experience, was capable of triggering the visa officer"s discretion under subsection 11(3) of the Regulations.
[24] I do not wish to speculate upon how the visa officer"s error may or may not have affected her final decision.
[25] Therefore, the application for judicial review is allowed and the matter is remitted for redetermination by a different visa officer.
[26] Neither counsel requested certification of a question, and no question is certified.
[27] The applicant sought costs. I can find no special reasons within the meaning of Rule 22 of the Federal Court Immigration Rules, 1993, SOR/93-22, as amended, that would justify an award of costs.
[28] Both counsel are to be commended for their succinct and cogent submissions.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
July 19, 2000
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