Date: 19990420
Docket: IMM-4852-97
BETWEEN:
YONG-SOO AHN
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application for judicial review seeks to quash a Visa Officer's decision dated September 19, 1997; also mandamus. The Visa Officer rejected the application for permanent residence in Canada, directing the respondent to process the application in accordance with the Immigration Act and regulations.
[2] In March of 1997, the applicant, a citizen of Korea, filed an application for permanent residence in Canada as an assisted relative in the independent category and that he intended to find work as a financial aids officer.
[3] The applicant's previous work experience with the Korean Bank is not contested. He worked from 1983 to 1994 for the institution as a financial aids officer in Korea, and from 1994 to 1997 in New York as a financial aids officer.
[4] The Visa Officer rejected the application at the paper screening stage of the assessment process; more particularly he was awarded zero units of assessment for the experience factor. The Officer found that the applicant did not have the requisite experience as a financial aids officer in a college or a university as required in the Canadian Classification and Dictionary of Occupations (CCDO) and the National Occupational Classification (NOC). The applicant had worked for a bank but not in the area required by the classification. Thus, the Visa Officer determined that the applicant fell within the inadmissible class of persons by virtue of paragraph 11(1) of the regulations and 19(2)(d) of the Act and awarded 65 units of assessment.
[5] The applicant raises two issues. Firstly, it is argued that the Visa Officer erred in concluding that the applicant did not have the required experience in the occupation of financial aids officer. Secondly, it is submitted that the Visa Officer breached his duty of fairness by failing to grant him an interview before making a final determination with respect to his qualifications.
[6] The respondent submits that the Visa Officer did not err in interpreting the statute or in awarding zero units of assessment for experience in the intended occupation of financial aids officer. It is submitted that the officer correctly determined that the applicant was not qualified to work as a financial aids officer as the CCDO and NOC required experience at a college or university.
[7] This application raises the following issues: 1) whether the Visa Officer committed a reviewable error in interpreting the CCDO and NOC classification, in concluding that the applicant did not have experience as a financial aids officer and in awarding zero units of assessment for the experience factor; and 2) whether the Officer's decision resulted in a breach of the principles of natural justice and procedural fairness for his failure to grant an interview.
[8] The job description is as follows:
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1174-126 FINANCIAL-AIDS OFFICER |
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Co-ordinates program of scholarships, grants, loans and student employment in college or university; |
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Interviews and advises student candidates of various types and amounts of financial aid available. Explains conditions of loans, grants or scholarships, evaluate applications, and notifies successful candidates. Assists eligible students to apply for provincial, federal and other grants, and makes appropriate recommendations. Co-ordinates selection of candidates and disbursement of funds, with admissions and business departments. |
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May supervise clerical and accounting support staff. May be assisted in the selection of candidates and types and amounts of aid by faculty committee. May advise students of employment opportunities according to information gained from personal contacts, commercial or industrial recruitment programs, and through federal and private agencies. |
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[9] Before the Court interferes with a Visa Officer's assessment of an application for permanent residence, it must be satisfied that the decisions is tainted by an error of law, or failure to consider the relevant evidence, or based the decision on irrelevant factors.
[10] As defined in the CCDO, a financial aids officer provides services to students in college or university settings; conducting interviews and advising student candidates of various types and amounts of financial aid available; explain conditions of loans, grants or scholarships, evaluate application. Also, a financial aids officer caters to the needs of the college or the university by co-ordinating the selecting of candidates and disbursements of funds, with admissions and business departments.
[11] Notwithstanding the applicant's argument that he performed similar functions in a banking environment and should be awarded eight units for assessment for his 14 years of experience, his own evidence reveals that his banking experience was principally related to loan processing to support trading and manufacturing companies, and the development of new business and corporate customers.
[12] In my view, the applicant's contention overlooks the fact that a financial-aids officer is required as per the CCDO's description not only to assist and advise students with respect to their financial needs, but also to work in conjunction with faculty committees and other departments for the purposes of selecting candidates and disbursing funds. Moreover, given that the description unequivocally states that a financial-aids officer's functions are performed in a college or a university, and given that the functions listed relate specifically to students, faculty committees and departments in the context of a university or college, it would be difficult to extend the description to encompass this applicant's experience and areas of expertise.
[13] In the case at bar, the applicant was not interviewed by the Visa Officer to explain his experience since interviews are not required where zero units of assessment are awarded for experience pursuant to section 11.1 of the Immigration Regulations, 1978.
[14] In Bandoo v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.) (IMM-1969-96, May 12, 1997), the Federal Court of Canada, Trial Division, considered whether the Visa Officer erred in failing to properly take into account the applicant's experience in the paper screening process which led in turn to the applicant not given an interview and the rejection of the application for permanent residence. Justice Nadon dismissed the applicant and summarized the law as follows:
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Even more to the point is a decision of Rothstein J. in Mohammad v. M.C.I. (1995), 90 F.T.R. 310. In Mohammad the applicant was seeking to enter Canada in the category of "assisted relative". At 311, Rothstein J. states: |
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The applicant was awarded 54 units. Pursuant to s. 11.1(a)(ii) of the Regulations, there was no requirement for the Visa Officer to conduct an interview with the applicant in the case at bar once it was determined he had failed to receive at least 55 units of assessment. As a result, the Visa Officer did not grant the applicant an interview, and denied his application. |
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On this judicial review, counsel for the applicant argues that the Visa Officer erred by basing his decision on an erroneous finding of fact without regard to the material before him or by breaching the rules of natural justice. he submits that with respect to the applicant's French language ability, the Visa Officer, without regard to the material before him, wrongly refused to award the applicant any units. Although the applicant on his application did not check-off his level of ability in French (the alternatives being fluently, well, with difficulty, not at all) he did state: "Passed primary course from alliance Française Karachi in 1973-74". Applicant's counsel says that this notation showed that the applicant had some ability with the French language and that had the Visa Officer considered this evidence, one or more points would have been awarded to the applicant and he would then have passed on to the interview stage. Alternatively, he submits the Visa Officer, because of this notation, should have interviewed the applicant to clarify the notation. |
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In dealing with these arguments, Rothstein J. stated at 312: |
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Nor was there an obligation on the Visa Officer to call in the applicant for an interview to clarify the applicant's reference to his capacity in French. Applicant's counsel could not point to any provision of the Immigration Act, R.S.C. 1985, c. I-2, or regulations that placed such an obligation on the Visa Officer. Although counsel relied on the principles of natural justice, I cannot see how the Visa Officer branched any such principles. Essentially, what he argued is that when an applicant for permanent residence completes his application in an ambiguous manner, he must be called in to clarify it. If this were correct, applicants who completed their application ambiguously would have the benefit of a personal interview while those who completed them clearly, would not. Such a result would be anomalous to say the least. There was no breach of natural justice by the Visa Officer. |
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[15] In light of the legislation and the jurisprudence, it is evident that the Visa Officer had no obligation to conduct an interview to assess the applicant's experience.
[16] Given that I have determined that the applicant has not demonstrated that the officer erred in interpreting the CCDO or the NOC classifications or in his assessment of the evidence, I have concluded that the Officer did not err when failing to conduct an interview and, as a result, did not breach his duty of fairness towards the applicant.
[17] The application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
April 20, 1999
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