Date: 19990930
Docket: IMM-236-99
BETWEEN:
JANET OURSHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision dated November 7, 1998, of visa officer M. Lavelle, Canadian Embassy, Damascus, Syria, wherein the applicant"s application for permanent residence in Canada was refused.
[2] At the very beginning of the hearing, counsel for the respondent presented a preliminary motion that part of the judicial review filed by the applicant should be rejected because this Court had no jurisdiction.
[3] The respondent"s argument is that pursuant to paragraphs 82.1 (1)(2), a leave should be granted before filing a judicial review of a decision of a visa officer relating to humanitarian and compassionate grounds.
[4] The respondent relies on a recent decision by Justice Reed in Rajadurai v. Canada (Minister of Citizenship and Immigration) March 30, 1999, File numbers IMM-4014-98, IMM-4402-98.
[5] A serious question was certified by Justice Reed and this question is under appeal at the Federal Court of Appeal.
[6] It appears from the decision and also from comments made by counsel for the applicant that the question of humanitarian and compassionate grounds raised by counsel for the respondent was the only issue raised in the Rajadurai case.
[7] Both counsel agreed that other important issues were raised, and that they should be addressed right away without waiting for the result of the preliminary motion.
ISSUES
[8] The applicant raised three particular issues:
| 1. Whether the visa officer failed to treat the applicant in accordance with required standards of fairness, by failing to communicate clearly her concern about education in such a way as to give the applicant a meaningful opportunity to respond to the visa officer"s precise concern; |
| 2. Whether the visa officer erred in law in her assessment of the applicant under the category of "experience" by failing to assess her training and giving insufficient emphasis to the applicant"s years of experience; |
| 3. Whether the visa officer erred in the exercise of discretion under subsection 11(3) of the Immigration Regulations and in the assessment of the humanitarian claim by failing to take into account relevant factors. |
[9] I am particularly concerned about the way the visa officer assessed the applicant"s training and experience.
[10] On February 17, 1999 a letter was sent to counsel for the applicant by the visa section of the Canadian Embassy, Damascus, Syria, asking her to contact the Canadian Association of Medical Radiation Technologists (CAMRT) to have the applicant"s qualifications assessed.
[11] The applicant, as requested, contacted the Association to have her qualifications assessed, but was informed by letter that the Association, no longer assessed candidates for immigration purposes.
[12] On April 28, 1998, counsel for the applicant sent a letter to the visa officer enclosing a copy of the letter received from the CAMRT.
[13] The visa officer then, decided to reject the applicant"s application without contemplating any alternative.
[14] The applicant suggests that the visa officer was unduly influenced by an older (1981) set of requirements. The 1981 entry requirements referred to by the visa officer, do state that a candidate for registration by the CAMRT at that time had to "have completed a training program in medical radiation technology equivalent to those offered in Canada".
[15] The most recent entry requirements state that a candidate for the certification examination, if "employed as a medical radiation technologist for the last five years must provide proof of successful completion of a medical radiation technology training program".
[16] Counsel for the applicant suggests that the visa officer erred in law by taking into account an irrelevant consideration (outdated professional criteria).
[17] Pursuant to the CAIPS, the visa officer had doubts as to whether the applicant"s education might count as "other approved program" according to the NOC. The officer formulated an appropriate strategy by asking the applicant"s input. The visa officer however did not explain her concern or why she needed the required information.
[18] The visa officer had admitted the possibility that the applicant might be qualified, that her training might be considered under other approved programs. However, without receiving any new information, she decided that the applicant was not qualified.
[19] Given that the applicant had twelve years of experience in an occupation described by her employer as X-ray technician the applicant submitted that the visa officer was obliged to make enquiries as to the nature of her qualifications in order to conduct a proper assessment. I agree with that argument.
[20] I am of the opinion that it is an error in law for a visa officer to fail to take into account relevant factors of job experience and the CAMRT"s current eligible criteria, and to render a decision without contemplating other possible alternative which could be reasonably expected by the applicant.
[21] Counsel for the respondent agreed that he raised the argument that a leave was required for an application for judicial review of a visa officer"s decision, only for the issue of humanitarian and compassionate grounds raised by the applicant.
[22] Counsel for the respondent suggests that should the decision be based on the other two arguments raised by the applicant, the leave is not requested.
[23] Given the conclusion that I reached, it is not necessary to address the respondent"s preliminary motion in relation to the decision on humanitarian and compassionate grounds.
[24] For these reasons, THIS COURT ORDERS THAT:
| 1. This application for judicial review be granted, the visa officer"s decision be set aside, the file be returned to another visa officer to redetermine whether the applicant should be granted permanent residence in Canada; |
| 2. The new visa officer shall take into account the twelve years experience of the applicant and also fairly assess the applicant"s application pursuant to the more recent requirements for the NOC 3215.1 classification. |
[25] Neither counsel suggested a question to be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 30, 1999
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