Date: 20000802
Docket: IMM-5768-99
BETWEEN:
BALASUBRAMANIAM SURYANARAYANAN &
SHANTHI BALASUBRAMANIAM
Applicants
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a decision of a visa officer at the Canadian High Commission in New Delhi, India, wherein the visa officer rejected the application of the first named applicant on this application for judicial review (the "principal applicant") for permanent residence in Canada. The visa officer"s decision letter is dated the 10th of October, 1999.
[2] The principal applicant applied for permanent residence in Canada in the independent category and as an assisted relative. He requested that his application be assessed against five separate occupational titles. In respect of two of those occupational titles, the principal applicant"s application was dismissed summarily on the basis of the conclusion on the part of the visa officer that the applicant would not be entitled to any points or units of assessment for experience. With respect to a third occupational title, the visa officer wrote in his decision letter:
| I would be unable to award you any points for experience in the occupational title of Electronics engineering technician. The description of the educational requirements for this occupational title as found in the NOC is completion of a one or two year college program in electronics engineering technology. Your training was a specific vocational course of one year"s duration in Radio, T.V. and Audio electronics. It is my opinion that this course can not be considered to be a college program in electronics engineering technology. |
[emphasis added]
[3] In fact, the "Employment requirements" set out in the National Occupational Classification (the "NOC") in respect of Electronics engineering technician (NOC 2241.2) is that recited in the foregoing quotation but it is noted to be an educational requirement that is "usually required". It is not a mandatory requirement. In Karathanos v. Canada (Minister of Citizenship and Immigration)1, Madam Justice Sharlow, in a similar factual situation albeit one involving a very different occupation, wrote at paragraph 7:
| In other words, the visa officer interpreted the words "usually required" as though they read "always required." |
At paragraph 15, Madam Justice Sharlow wrote:
| Thus, it can be said that in awarding points of assessment for the "education and training" category in Schedule I, an occupational category that usually requires a master"s degree is treated as though it always requires a master"s degree. |
| [emphasis in the original] |
Madam Justice Sharlow concluded at paragraph 25 in the following terms:
| In this case, the visa officer was faced with an applicant who did not have the educational requirements that are "usually required" for her chosen occupation. He should have considered her education, training and experience in its entirety with a view to determining whether it was the approximate equivalent of a master"s degree in archival studies, library science or history. After reviewing the record, I am far from satisfied that the visa officer made a reasonable assessment of Ms. Karathanos" work experience with that question in mind. |
[4] Precisely the same could be said on the facts of this matter. After reviewing the record in this matter, I am far from satisfied that the visa officer made a reasonable assessment of the principal applicant"s education, training and experience in its entirety with a view to determining whether the "usually required" education in respect of the occupation Electronics engineering technician was in fact required in all of the circumstances of this applicant. In failing to do so, I am satisfied that the visa officer made a reviewable error and that, in the result, on this ground alone, this application for judicial review should be allowed.
[5] Counsel for the applicant urged that the visa officer further erred in a reviewable manner in the assessment of the principal applicant"s personal suitability.
[6] In Maniruzzaman v. Canada (Minister of Citizenship and Immigration)2, Madam Justice Reed wrote at paragraph 21:
| When assessing personal suitability, the characteristics of "adaptability, motivation, initiative [and] resourcefulness" are to be assessed. ...This is particularly true in a situation such as the present where an applicant is one or two points short of the required total. |
[7] In this matter, the principal applicant was fully assessed under two occupational titles. In one he received 60 units of assessment and in the other he received 64 units of assessment when only 65 units of assessment were required to qualify by reason of the principal applicant"s status as an assisted relative. While I am not satisfied that the visa officer committed a reviewable error in assessing the principal applicant"s personal suitability, I am not satisfied that the assessment of that factor was fully cognizant of the caveat reflected in the foregoing words of Madam Justice Reed. Since this matter will be referred back, I recommend to any other officer charged with reviewing the principal applicant"s application, a fuller consideration of the principal applicant"s personal suitability than was afforded by the visa officer whose decision is here under review.
[8] Finally, counsel for the applicant urged that the visa officer denied the principal applicant procedural fairness and erred in law in his expression of concerns regarding the transferability of the principal applicant"s skills to the Canadian labour market without providing the principal applicant an opportunity to respond to those concerns. I am satisfied that the visa officer made no reviewable error in this regard.
[9] In the result, this application for judicial review will be allowed, the decision under review will be set aside and the principal applicant"s application for permanent residence in Canada will be referred back to the respondent for reconsideration and redetermination by a different officer.
[10] Neither counsel recommended certification of a question. No question will be certified.
[11] There will be no order as to costs.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
August 2, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: BALASUBRAMANIAM SURYANARAYANAN & |
SHANTHI BALASUBRAMANIAM
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
| DATE OF HEARING: TUESDAY, AUGUST 1, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: WEDNESDAY, AUGUST 2, 2000
| APPEARANCES BY: Mr. M. Max Chaudhary |
| SOLICITORS OF RECORD: Chaudhary Law Office |
Barrister & Solicitor
405-255 Duncan Mills Rd.
North York, Ontario
M3B 3H9
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000802
Docket: IMM-5768-99
BETWEEN:
| BALASUBRAMANIAM SURYANARAYANAN & |
SHANTHI BALASUBRAMANIAM
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
__________________
1(1999), 3 Imm. L.R. (3d) 106 (F.C.T.D.).
2(1999), 50 Imm. L.R. (2d) 134 (F.C.T.D.).
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