Mamun v. Canada (Minister of Citizenship and Immigration), 2002 FCT 122

Date: 20020131

Docket:IMM-5298-99

Neutral citation: 2002 FCT 122

BETWEEN:

                                                           ABDULLAH AL MAMUN

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 This is an application for judicial review of the decision of a visa officer, dated September 21, 1999, refusing the applicant's application for permanent residence in Canada under the Independent category as an aircraft maintenance engineer. His application requested that he be assessed as an Aircraft Instrument Mechanic, an Aircraft Elecrical Mechanic, an Aircraft Inspector, or an Aircraft Mechanic, all separate occupational classifications. The visa officer assessed the application in relation to each of these occupations, as well as two other associated occupations, but found that the applicant did not have the training or entry qualifications, or that he did not obtain sufficient points to qualify for admission.

[2]                 The application also related to the applicant's spouse and she was also assessed as an applicant, in relation to the occupations of Medical Laboratory Technologist and Medical Laboratory Technician, but the visa officer determined that she did not meet the training/entry requirements for either of these, and for a third possible occupation the officer found there was no occupational demand.

[3]                 There are two issues in this application. Firstly, the applicant submits that the visa officer erred by failing to consider whether she should exercise her discretion, pursuant to s-s. 11(3) of the Immigration Regulations, 1978 ("the Regulations"), to approve Mr. Al Mamun's application. Secondly, the applicant submits that the visa officer erred by failing to consider whether, in the case of the applicant's spouse, a bachelor of medicine degree she had completed was equivalent to a bachelor of science degree, as required for entry into the medical laboratory occupations.

Standard of review

[4]                 There is no serious dispute that the decision of the visa officer was discretionary in nature, based on the particular facts of the application. The respondent submits that, pursuant to s-s. 8(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, the onus of establishing that the applicant qualifies for admission rests with the applicant. In such a case this Court will not intervene merely because this Court might have reached a different result; rather it would do so only if there were an error of law or a breach of the duty of fairness by the officer.

[5]                 In my view, significant deference must be accorded to the visa officer's discretionary finding of fact, and this Court should not intervene unless the decision was patently unreasonable, or the procedure followed was unfair to the applicant.

Did the visa officer err by failing to consider whether to exercise her discretion?

[6]                 In a letter filed with the application, the solicitor for the applicant asked the visa officer to use her discretion to approve the application, in the event that the applicant did not qualify under the points system. Subsection 11(3) of the Regulations provides:

[7]                 The applicant submits that the visa officer erred by failing to turn her mind to the possible exercise of discretion in this case. In support of this submission, the applicant relies on Razavi v. Canada (1999), 172 F.T.R. 318, where Madame Justice Reed quashed the decision of a visa officer, in part, because of the visa officer's failure to consider whether or not to exercise her discretion, in the circumstances of that case. The applicant further relies on Savvateev v. Canada (Minister of Citizenship and Immigration) (1999), 2 Imm. L.R. (3d) 207, where Madame Justice McGillis reached a similar result in light of the particular circumstances of the case.

[8]                 In my view, the facts in this case are unlike those in either Razavi or in Savvateev.

[9]                 In Razavi, the applicant's mother and five siblings lived in Vancouver, where they ran a family business. The applicant was the purchasing agent for the Vancouver business for many years, and had invested about $180,000 in the business. Unlike the applicant in Razavi, the applicant in the case at bar does not have a history of involvement with a Canadian business.

[10]            In Savvateev, the visa officer awarded the applicant 59 points on the paper screening, one point short of the 60 points required for a personal interview. However, the applicant in the case at bar, Mr. Al Mamun, was awarded 62 to 67 points on the basis of his application and his interview, less than the 70 points required for a successful application. In Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 19, Mr. Justice Evans held, at para. 21, that:

...(I)t is not a function of this Court to determine whether the visa officer has given sufficient weight to this consideration. This is a matter for the exercise of the statutory discretion entrusted to the visa officer in light of the complete file, including how close the applicant is to obtaining the normally required number of units of assessment...

And further, at para. 23:

...Without trespassing on the discretion conferred upon visa officers by subsection 11(3), I would have thought that the discretion in question is residual in nature, and should be decisive only in cases that present unusual facts, or where the applicant has come close to obtaining 70 units of assessment.

Similarly, in Yeung v. Canada (Minister of Citizenship and Immigration) (2000), 186 F.T.R. 189, Madame Justice Reed commented, at para. 17:

The exercise of discretion is nonetheless exceptional...It is residual in nature, to be exercised in cases that present unusual facts, or where the applicant has come close to obtaining 70 units of assessment.

In my view, in the circumstances of this case, it was reasonable for the visa officer to decline to consider whether or not to exercise her discretion.

[11]            It is urged that by failing to refer to the possible exercise of discretion in this case, the visa officer failed to consider that possibility. In my view that inference is not warranted, since a visa officer is not required to give reasons for declining to exercise her discretion in favour of the applicant (Channa v. Canada (Minister of Citizenship and Immigration) (1996), 124 F.T.R. 290, and Feng v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 59).

[12]            In Zeng v. Canada, [1999] F.C.J. No. 1486, Mr. Justice Blais held that in the absence of bad faith on the part of the visa officer, the Court would not intervene where a visa officer decided not to exercise her discretion, commenting at para. 25 that:

There is no evidence that the visa officer used her discretion in bad faith or in an arbitrary way. She assessed the applicant's chance of successful establishment in Canada and was convinced that she should not exercise her discretion. The Court should not intervene.

In this case, there is no evidence of bad faith on the part of the visa officer.   

Did the visa officer err by failing to consider whether a bachelor of medicine degree, held by the applicant's spouse, was equivalent to a bachelor of science degree?

[13]            The applicant's wife applied, inter alia, as a Medical Laboratory Technologist. The employment requirements for that occupation are set out in the National Occupation Code ("NOC"), under classification 3211.1:

Medical laboratory technologists require a bachelor of science or medical laboratory science degree

or

A two or three-year college program in medical laboratory technology

and

A period of supervised practical training.

As an alternative occupation, the applicant's spouse was also assessed as a possible Medical Laboratory Technician (NOC classification 3212.0). Finally, she was assessed in regard to the occupation of Gynaecologist/ Obstetrician (NOC 3111.3), but there was no occupational demand for this.

[14]            During the interview, the applicant's spouse provided the visa officer with an internship training certificate, stating that she had received 12 months of training in obstetrics and gynaecology. In her CAIPS notes, the visa officer stated that she received the certificate, but beyond that she did not comment upon the certificate. Whether the visa officer was satisfied that the applicant's spouse had received supervised practical training, we simply do not know.

[15]            The visa officer subsequently declined to award any units of assessment to the applicant for his spouse's intended occupation of Medical Laboratory Technologist or the alternative occupation of Medical Laboratory Technician. In her refusal letter, the visa officer wrote:

I have considered your spouse's intended occupations Medical Laboratory Technologist (NOC 3211.1) and Medical Laboratory Technician (NOC 3212.0). However, she did not meet the training/entry requirements for those occupations in Canada as they are described in the National Occupation Classification.          

[16]            The reasons for this decision are discussed more fully in the visa officer's CAIPS notes, where she wrote:          

Also considered wife in her intended occs Medical Laboratory Technologist (NOC 3211.1) and Medical Laboratory Technician (NOC 3212.0). Based on wife's description of training, she did not meet the training / entry requirements for those occs in Cda as they are described in the National Occupational Classification. According to the NOC, a bachelor of science or medical laboratory science degree or a two- or three-year college program in medical laboratory technology and a period of supervised practical training is required for medical lab technologist. According to NOC, a one-to-two year college program in medical technology is required...

[17]            The applicant states that his spouse's bachelor of medicine degree took six years to complete, including one year of internship, and he submits that the visa officer erred by failing to consider whether this was equivalent to any of the educational requirements set out under NOC classification 3211.1.

[18]            In her CAIPS notes, the visa officer commented upon the bachelor of medicine degree, and other qualifications, of the applicant's spouse as follows:

Wife graduated from Dakha Medical College with a Bachelor of Medicine & Surgery degree. Received a 5-day training (management of breastfeeding) offered by Campaign for the Protection and Promotion of Breastfeeding Dhaka and a 2-week training (menstrual regulation) offered by Dhaka Medical College Hospital. She is presently a medical officer of Department of gynaecology and obstetrics at Birdem Hospital, previously a medical officer at Dhaka Medical College. Gd. spoken Engl.

[19]            Upon review of the visa officer's letter of refusal to the applicant, and the CAIPS notes, it appears that no attempt was made to compare the medical degree program, which took six years for the applicant's spouse to complete, including one year of internship, with a requirement, set out under classification 3211.1 of NOC, of a bachelor of science degree, medical laboratory science degree, or a two or three year college program in medical laboratory technology. In my opinion, the visa officer erred by failing to undertake this analysis.

Conclusion

[20]            In so failing to consider the medical degree program, in my view, the decision of the visa officer was patently unreasonable. The application for judicial review is allowed in relation to the decision concerning the qualifications of the applicant's spouse for her intended occupation. An Order goes so providing.

                                                                                                                                                                       (signed) W. Andrew MacKay

                                                                                                        _____________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

January 31, 2002.