Date: 20030225
Docket: IMM-5721-01
Neutral citation: 2003 FCT 229
Ottawa, Ontario, Tuesday, this 25th day of February, 2003.
Present: THE HONOURABLE MR. JUSTICE KELEN
Between:
MOHAMMAD ASHRAF CHAUDHRY
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Foreign Service Officer J. Crowther, denying Mr. Chaudry's application for permanent residence as an independent immigrant. He was refused because he accumulated only 41 of the 70 units of assessment required for his application to succeed. The officer did not feel that an exercise of positive discretion was warranted.
[2] The applicant's counsel requested that the officer positively exercise the discretion conferred upon him by subsection 11(3) of the Immigration Regulations, 1978 which reads:
11.
[...]
(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
11.
[...]
(3) L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
The officer balanced the work history of the applicant in Canada and his permanent offer of employment, with his poor language skills and his ability to adapt to a loss of employment. He determined that the case did not warrant a positive exercise of his discretion.
[3] The applicant requests that this Court set aside the decision of the officer. He argues that the officer erred in awarding him zero units of assessment for the Occupational Factor and only 4 units for Personal Suitability. He argues that he should have been given 10 units of assessment for each of these factors.
ANALYSIS
[4] I am satisfied that the visa officer erred in law in awarding the applicant zero units of assessment for the occupational factor, rather than 10 units. The applicant had a validated offer of employment in an occupation to which the NOC assigns an "ETI number equal to or greater than 5" which means a high demand.
[5] The applicant, a highly skilled terrazzo mechanic, is currently employed in Canada and earns approximately $85,000 per annum including benefits. His employer in Toronto is well established, has several large projects which will last many years, and has written that the applicant "has become an essential asset to our company and team" and that his "work with our company is critical to our business and to our ability to fulfill our contractual obligations both in the short-term and long-term".
The applicant's Canadian union has confirmed his qualifications and that the demand for his skills are "desperate" in Toronto. The union writes:
Terrazzo mechanics are in desperate need in our area. Currently there are approximately twenty terrazzo mechanics in our Local. However, many large construction jobs in which terrazzo mechanics are required necessitate up to seven-ten mechanics to perform the work efficiently and effectively. Further, many of the terrazzo mechanics that are currently qualified are nearing retirement age. Therefore, we anticipate that there will be an ever increasing need for qualified and experienced terrazzo mechanics in the Toronto area.
[...] We understand that Mr. Chaudhry went to the trade school for an evaluation in the field of terrazzo. We understand that he scored very well and as such has demonstrated himself to be a skilled terrazzo mechanic. Given the shortage of qualified workers with his skills, we support his application for labour validation.
[6] The visa officer's decision is not reasonable in that it does not withstand a "somewhat probing examination". The visa officer wrote:
However, there is also a need, in my view, to consider your employability if you were to lose your current job through disability or redundancy. Given the physically demanding nature of your work such a prospect is not unthinkable. If you were to lose your job, you would need to draw on other job skills, educational development, and most importantly language ability to locate new employment.
[7] This contingency is not a reasonable basis to refuse the application. In the foreseeable future, the demand for terrazzo mechanics will only increase. The applicant will not likely be seeking employment because of a lack of opportunity. The skilled workers in this field are nearing retirement age, and Canada is, as the trade union said, "desperate" for persons of the applicant's ability.
[8] Considering the applicant's skill level, the likelihood of a disability due to an accident on the job is low. Terrazzo mechanics are not in a hazardous occupation. It is unreasonable for the visa officer to rely upon this remote contingency to refuse the applicant under subsection 11(3) of the Regulations.
[9] In the case of Chand v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1447, Cullen J. (as he then was) considered a very similar situation and held for the applicant at paragraph 18:
Furthermore, the visa officer's concerns that the applicant may find himself unemployed in the near future are simply without foundation and constitute mere speculation of an irrelevant nature. Nothing in the record supports this contention, and indeed the applicant's employer has submitted a letter of reference indicating his satisfaction with the applicant's job performance and assuring the reader that he plans to keep the applicant employed as long as the applicant desires.
¶ 19Even if the applicant were to find himself unemployed, his chosen occupation is one that is in high demand in Canada, such that it warrants the maximum allowable units of assessment under the occupational demand factor.
¶ 20The applicant has shown that he has successfully established himself in Canada in the economic sense.
[10] The jurisprudence is somewhat contradictory on the exercise of the visa officer's discretion under subsection 11(3) of the Regulations. There are cases which have held that this discretion should not be exercised unless the applicant is "close" to obtaining the normally required number
of units of assessment, in this case 70 units. See Chen v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 528 at paragraph 21, Gao v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 48 at paragraph 9, and Mamun v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 141 at paragraph 10. The applicant was far from obtaining this number units of assessment, but the visa officer erred in assessing at least one factor. The special fact situation warrants a new visa officer reassess the applicant following a full interview.
[11] The visa officer's discretion under subsection 11(3) of the Regulations is to issue an immigrant visa to an immigrant who is not awarded the number of units of assessment if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant becoming successfully established in Canada. Robertson J.A. in Chen v. Canada (Minister of Employment and Immigration) [1994] 1 F.C. 639, upheld [1995] 1 SCR 725 held that the determination criteria under subsection 11(3) "must be restricted to matters relating to their ability to make a living". Applying this criteria, the applicant has already successfully established himself in Canada with respect to his ability to make a living.
Page: 7
[12] The Canadian workplace has shortages in key fields including skilled construction workers. Highly skilled workers such as the applicant are required to maintain Canadian economic prosperity. Overseas visa offices must assess such skills and foreign credentials in light of this high demand. This affects their "suitability" and "likelihood of establishing themselves successfully in Canada".
[13] For these reasons, I would allow the application, set aside the decision of the visa officer, and refer the matter to another visa officer for a new interview and assessment.
[14] Counsel did not propose any questions for certification and the Court agrees that this case does not raise any serious questions of general importance which ought be certified for appeal.
ORDER
THIS COURT HEREBY ORDERS THAT:
This application for judicial review is allowed. The decision of the visa officer be set aside and the matter referred to another visa officer for a new interview and assessment.
"Michael A. Kelen"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5721-01
STYLE OF CAUSE: MOHAMMAD ASHRAF CHAUDHRY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, FEBRUARY 11, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: TUESDAY, FEBRUARY 25, 2003
APPEARANCES BY: Mr. Stephen W. Green
For the Applicant
Ms. Patricia MacPhee
For the Respondent
SOLICITORS OF RECORD: Mr. Stephen W. Green
Green & Spiegel
Barristers & Solicitors
121 King Street West, Suite 2200
Toronto, ON M5H 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030225
Docket: IMM-5721-01
BETWEEN:
MOHAMMAD ASHRAF CHAUDHRY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER