Igoumentsev v. Canada (Minister of Citizenship and Immigration)

Igoumentsev v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2002-06-18
Neutral citation
2002 FCT 689
File numbers
IMM-4913-00
Decision Content
Date: 20020618
Docket: IMM-4913-00
Neutral citation: 2002 FCT 689
Toronto, Ontario, this 18th day of June, 2002
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
IGOR IGOUMENTSEV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER AND ORDER
LAYDEN-STEVENSON J.
[1] The applicant has challenged, by way of judicial review, the decision of a visa officer denying him permanent residence in Canada, as an independent, in the intended occupation Technical Sales Representative (NOC 6221). The applicant says that the visa officer erred in law in misinterpreting the meaning of "usually required" when assessing the application and in failing to conduct a proper assessment of the applicant's education, training and work experience.
[2] It is common ground that the applicant did not have the educational qualifications that are usually required for the intended occupation. Counsel agree that in such circumstances, the visa officer must then consider whether the applicant will be able to hold employment in the intended occupation despite the fact that the ‘usual' educational requirements are not present.
[3] Despite the articulate submissions of counsel for the applicant, I do not find that the visa officer regarded the educational qualifications as mandatory. The visa officer stated that the applicant did not meet the university degree or college diploma requirement but then proceeded to consider other factors. However, with respect to his consideration of the other factors, I agree with the applicant's argument that the visa officer failed to conduct a proper assessment.
[4] The visa officer was required to consider the applicant's education, training and experience, in its entirety, with a view to determining whether it was the approximate equivalent of the university degree or college diploma related to the product or service.
[5] Having reviewed the record, I find factual errors in the assessment. The CAIPS (Computer Assisted Immigration Processing System) notes indicate that the applicant "worked as a sales specialist from 1993 in the auto transport and agricultural equipment industry". This is incorrect. The applicant was not employed in that industry until 1995. From 1993 to 1995, the applicant was employed by Rank Xerox Ltd. where he was involved in the sale of Xerox equipment. The applicant had submitted reference letters from both Rank Xerox Ltd. and A.V.I.A.-Group Company, the latter referencing his position as deputy director for export sales of auto transport machinery and agricultural equipment. There is no reference, either in the CAIPS notes or the refusal letter, to the applicant's employment with Xerox. Thus, it appears that the visa officer failed to appreciate that the applicant had been employed in not one, but two, sales related positions.
[6] There is also inconsistency between the CAIPS notes and the refusal letter with respect to whether the visa officer considered one letter of reference or two letters of reference. The CAIPS notes state "letter" of reference while the refusal letter indicates consideration of "letters" of reference. While ordinarily such an inconsistency might not be regarded as significant, here it is material because of the visa officer's omission with respect to the Xerox employment.
[7] In Kunchur v. Canada (Minister of Citizenship and Immigration) (2001), Imm. L.R. (3d) 164, Rothstein J. (as he then was) stated at page 166:
[I]t is not for the Court to rewrite the visa officer's decision to comport with the Caips (sic) Notes. There are inconsistencies in her decision and her affidavit does not adequately explain them.
[8] Here, the Court does not have the benefit of an affidavit because an affidavit was not submitted by the visa officer.
[9] The applicant had provided evidence that he had relevant experience in two sales related employment positions. I am not satisfied that the visa officer considered both positions. In failing to consider the applicant's experience, in its entirely, the visa officer erred.
[10] The application for judicial review is allowed. The decision of the visa officer is quashed and the applicant's application for permanent residence is referred back for reconsideration by a different visa officer.
[11] Counsel did not suggest a serious question of general importance therefore no question is certified under subsection 83(1) of the Immigration Act.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is allowed. No question is certified.
"Carolyn Layden-Stevenson"
_____________________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4913-00
STYLE OF CAUSE: IGOR IGOUMENTSEV
v.
MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: JUNE 17,2002
REASONS FOR [ORDER or JUDGMENT] :
THE HONOURABLE MADAM JUSTICE
LAYDEN-STEVENSON
DATED: JUNE 18,2002
APPEARANCES:
APPLICANT:
Ms.Shoshana T.Green
RESPONDENT:
Ms.Neeta Logsetty
SOLICITORS ON THE RECORD
Ms.Shoshana T.Green
Green & Spiegel
121 King Street West
Suite 2200,P.O.Box 114
Toronto (Ontario)
M5H 3T9
Mr.Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario