Date: 20030717
Docket: IMM-4085-01
Toronto, Ontario, this 17th day of July, 2003
Present: The Honourable Mr. Justice James Russell
BETWEEN:
SARFRAZ AHMED KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 82.1(2) of the Immigration Act
R.S.C. 1985, c. I-2, as amended and section 18 and subsection 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision dated August 6, 2001 of M. Edmond, visa officer of the Canadian Consulate General, New York City (the "Visa Officer") wherein the Visa Officer refused the Applicant's application (the "Application") for permanent residence on the grounds that she was not satisfied that the Applicant met the requirements of the Immigration Act and Regulations.
BACKGROUND
[2] The Applicant is a citizen of Pakistan. He has completed a 2-year Bachelor of Commerce degree and a 2-year Master's of Business Education (both at the University of Punjab), with a concentration in marketing management. He had a brief stint in the Consumer Product Division of a company known as Packages Limited while still pursuing his education. Upon graduation, he worked at Rasheed International Industry (the "Partnership"), a partnership between the Applicant and two of his brothers. The Partnership provided the Applicant with a reference letter that the Applicant used in support of his Application.
[3] On February 16, 2000, the Applicant submitted an application for permanent residence to Canada pursuant to the Independent Selection Criteria as a marketing consultant, defined in the National Occupational Classification System ("NOC") as category 4163. The Applicant provided supporting documentation at that time, as well as subsequent updates. He included among these documents an offer of employment from Bengal Rug Co., a Canadian retail establishment operating in the Toronto area and involved exclusively in the selling of area rugs. The letter indicated that the Applicant would earn a salary of $32 000 per year plus commission if he could obtain authorization to work in Canada.
[4] On November 22, 2000, the Applicant attended an Immigration interview (the "Interview") with the Visa Officer in New York City.
[5] The Visa Officer, in her decision of August 6, 2001 (the "Decision"), determined that the Applicant did not meet the requirements set out in subsection 8(1) of the Immigration Regulations. The Visa Officer believed that the Applicant did not present credible evidence of his training and employment experience as a marketing consultant and thus did not have the experience required to perform that function.
THE VISA OFFICER'S DECISION
[6] The Visa Officer refused the application for the following reasons:
This refers to your application for permanent residence in Canada.
I have now completed the assessment of your application and have determined that you do not meet the requirements for immigration to Canada.
Pursuant to section 8(1) of the Immigration Regulations, 1978, independent applicants, the category in which you have applied, are assessed on the basis of the factors outlined in Schedule I of the Immigration Regulations. These factors are age occupational and training, experience, arranged employment or designated occupation, demographic factor education, knowledge of English and French languages and personal suitability.
Your application was based on the requirements for the occupation of Marketing Consultant (NOC 4163), this being the occupation under which you requested assessment. You will find hereafter the units of assessment awarded for each of the selection criteria in this occupation.
Age: 10
Occupational factor 00
Specific vocational preparation: 17
Experience: 00
Arranged employment: 00
Demographic factor: 08
Education: 15
Knowledge of English: 09
Knowledge of French: 00
Personal Suitability: 04
TOTAL: 63
Subsection 11(1) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants who have not been awarded and units of assessment for the factor of "experience" in an occupation which they are prepared to follow in Canada.
I am not satisfied that you meet the requirement because you presented no credible evidence of your training and employment experience as a marketing consultant. Therefore, I was not satisfied that you could perform the work required without experience. I did not grant you any units of assessment for experience and occupational factor.
Subsection 9(4) of the Immigration Act provides that;
Where a visa officer is satisfied that it would not be contrary to the Act or regulations to grant landing or entry to an applicant, that officer may issue a visa if, in his or her opinion, that applicant meets the requirements of the Act and the regulations. I am not satisfied that you meet the requirements of the Act and the regulations.
I am not satisfied that you meet the requirements of the Act and regulations, as stated above and must therefore refuse your application.
Thank you for your interest in Canada.
...
[7] The Visa Officer, after interviewing the Applicant, awarded him no units of assessment for "Experience" or in the "Occupational Factor" because he had not performed "a substantial amount of the main duties, including the essential ones, of a marketing consultant" as set out in the NOC.
ISSUES
[8] The applicant raises the following grounds for judicial review:
A. Did the Visa Officer commit a reviewable error in refusing to acknowledge the Applicant's work experience as a marketing consultant?
B. Did the Visa Officer fail to properly assess the Applicant's application for permanent residence by improperly interpreting the Immigration Act and Immigration Regulations, by failing to observe a principal of natural justice, procedural fairness, or other procedure that she was requested by law to observe, and by erring in law in making the decision?
STANDARD OF REVIEW
[9] For the question of law regarding the proper interpretation of Item 4(1)(b) of Schedule I to the Regulations, the standard of review is correctness.
[10] For the question of whether the Visa Officer properly assessed the Applicant, this is an issue of mixed fact and law. The appropriate standard on issues of mixed fact and law is that of reasonableness simpliciter. See Canada ( Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, and Lu v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1907 (T.D.).
ANALYSIS
Did the Visa Officer commit a reviewable error in refusing to acknowledge the Applicant's work experience as a marketing consultant?
[11] In refusing the Application the Visa Officer said that she found no credible evidence of his training or employment experience as a marketing consultant. The Applicant submits that the Visa Officer clearly ignored documentary and oral evidence presented to her which states that the Applicant had performed some of the duties outlined in the relevant NOC description. The Respondent contends that the Visa Officer did not ignore this evidence, but rather did not find critical evidence, (namely the Applicant's reference letter from the Partnership), to be credible. He had composed the letter himself after reviewing the NOC duties and then had his brother sign it.
[12] Tremblay- Lamer J. held in Patel v. Canada (Minister of Citizenship and Immigration)[2000] F.C.J. No. 1983 (T.D.) that a visa officer cannot require an applicant to have performed all of the duties specified in the NOC and that flexibility is required:
¶ 8 Although the visa officer has a wide discretion in determining whether the plaintiff's qualifications meet the requirements laid down by the CCDP and the N.O.C. and he can attach greater weight to some of these points than others, he cannot require a plaintiff to meet all the duties stated therein.
[...]
¶ 11 In the case at bar, a short interview with a few questions on work experience cannot by itself provide the basis for an informed decision. It was unreasonable for the visa officer to reject all the evidence submitted simply because from the few replies given in the interview the plaintiff did not meet some of the requirements in the CCDP and N.O.C.
[13] In Bhatia v. Canada (Minister of Citizenship and Immigration)[2000] F.C.J. No. 98 (T.D.), Cullen J. also stated that a candidate does not have to perform the full range of duties listed in the NOC:
¶ 12 The applicant argues that the visa officer committed a reversible error by using the wrong standard of assessment for the occupation of jeweller under the NOC. The visa officer concluded in her letter of decision that the applicant had not satisfied her that he had performed the "full range of duties" of a jeweller as that occupation is listed in the NOC. The applicant alleges that the visa officer used the wrong standard by requiring, in effect, that the applicant have experience in all the duties listed under that classification.
¶ 13 The basis for this argument is the use of the phrase "full range of duties." It may be an unfortunate choice of words, as it is open to differing interpretations. It is clear that in order to be considered to have experience in a particular NOC occupation, an applicant does not have to have experience in each and every duty listed therein. The visa officer admitted this under cross-examination. Nevertheless, there is a range of duties performed in any occupation. Simply performing one or two of the duties normally associated with an occupation does not mean that one is working in that occupation. The person's duties altogether must be compared to the duties listed in the NOC. It is impossible to say that exactly half or three-quarters of the duties must be performed in order to qualify. The Immigration Regulations, 1978 are clear: to get credit for an occupation, the applicant must have performed "a substantial number of the main duties set out in the National Occupational Classification, including the essential ones." [Immigration Regulations, 1978, SOR/78-172, Schedule I, Factor 4] Whether this has been satisfied by an individual applicant is a matter of judgment and discretion.
[14] However, Visa Officers are entitled to determine the essential duties under the NOC requirements based on their own judgement and discretion. In this case, the Visa Officer decided that the Applicant had not performed a substantial number of essential duties for the relevant category.
[15] The case law allows for some weighing of the duties and discretion with respect to assessing the essential duties of a profession. The Visa Officer exercised her discretion in assessing the credibility of the Applicant's reference letter from the Partnership. The reference letter was signed by the Applicant's brother and used language identical to that used in the description in the NOC. The Visa Officer did not commit any reviewable error in finding this evidence was not credible. She ascertained the true nature of the Applicant's work experience through questioning. As the CAIPS notes reveal, she concluded that the Applicant's actual experience was closer to that of a sales or marketing manager than a marketing consultant and decided, therefore, that the Applicant had not performed a substantial number of the main duties of a marketing consultant. She made no reviewable error in this regard.
Did the Visa Officer err in awarding the Applicant 15 units under the Education factor?
[16] The Visa Officer awarded the Applicant 15 units based on four years of full-time post-secondary education. Schedule 1, Factor 1, Criteria 1(d) of the Immigration Regulations provides for a score of 15 units where an Applicant has completed a first-level university degree that requires the completion of at least three years of full-time study. In addition, Schedule 1, Factor 1, Criteria 1(e) of the Immigration Regulations provides for a score of 16 units where an Applicant has completed a second or third level university degree.
[17] It is apparent that the Visa Officer made an error by not recognizing the Applicant's Masters Degree and that he should have been awarded 16 units under this heading. This was not, however, a material error when the decision is looked at in its entirety.
Did the Visa Officer commit a reviewable error by finding that the Applicant's job offer with Bengal Rug Co. was not an indication that he intended to continue work as a marketing consultant in Canada?
[18] The Visa Officer found that the Applicant's job offer with the Bengal Rug Co. was not an indication that he intended to continue to pursue work as a marketing consultant in Canada. It showed, instead, that the Applicant intended to become a retail store manager.
[19] The Applicant submits that the Visa Officer made a patently unreasonable finding on this issue because there was no information before her to indicate that he was not going to pursue his chosen occupation with Bengal Rug Co. or that his position did not include the main duties attributed to marketing consultants. The Applicant further submits that the Visa Officer gave no indication that she would consider the job offer from the Bengal Rug Co. as a negative factor in her assessment of his Application.
[20] The CAIPS notes reveal that the Visa Officer took the job offer into account and that she did not misunderstand or ignore the evidence.
[21] In Amin v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1221 (T.D.), Hansen J. indicated that procedural fairness requires a Visa Officer to give the applicant some opportunity to disabuse the Visa Officer of a negative impression:
¶ 11 Although a visa officer may not have a duty to counsel, advise or even seek clarification from an applicant, [Hajariwala v. Canada [1989] 2 F.C. 79 at page 83. ] the visa officer does have the duty to "consider fully the submissions and information provided by an applicant". [Saggu v. Canada (Minister of Citizenship and Immigration) [1994] F.C.J. No. 1823 at paragraph 16. ] Further, where a visa officer has an impression of deficiency in the proof being offered by an applicant, fairness requires that the visa officer give the applicant some opportunity to disabuse the visa officer of that impression. [Muliadi v. Canada (Minister of Employment and Immigration) [1986] 2 F.C. 205 at 215 (C.A.) ]
¶ 12 The extent to which an opportunity should be given to an applicant to disabuse the visa officer of concerns was discussed by Muldoon J. in Asghar v. Canada (Minister of Citizenship and Immigration) [[1997] F.C.J. No. 1091 at paragraph 21] where he stated:
It is still not clear in what circumstances procedural fairness requires that the visa officer apprise the applicant of his concern. However, from the authorities cited above one may conclude that this duty does not arise merely because the visa officer has not been convinced, after weighing the evidence, that the application is well founded. The visa officer's task is precisely to weigh the evidence submitted by the applicant. In the Court's words, in light of the onus that is on the applicant to produce evidence, it is not apparent that the visa officer should be compelled to give him a "running-score" at every step of the proceeding.
[22] In the present case, the Visa Officer merely weighed the evidence presented by the Applicant and was not convinced that the application was well-founded. There was no reviewable error in this regard.
Did the Visa Officer commit a reviewable error by awarding the Applicant only 4 units of assessment for Personal Suitability?
[23] In assessing the Personal Suitability factor of the Applicant, the Visa Officer states in her affidavit as follows:
I awarded 4 units of assessment for personal suitability to the Applicant. In assessing personal suitability, I took several factors into account, such as adaptability, motivation, initiative, resourcefulness, and his ability to become successfully established in Canada. I also took into account the fact that the Applicant has an informal offer of employment for Bengal Rug Co. as a store manager although this is not the occupation under which he requested assessment or wished to follow in Canada
[24] The Applicant submits that the Visa Officer's reasons in providing such a low score do not meet the standard imposed by Tremblay-Lamer J. in Wen v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 633 (T.D.):
¶ 11 Finally, the Visa Officer agreed that he had a bona fide job offer, that his wife was working in a demand occupation, and that he had relatives about whom she "didn't have any particular concerns with respect to assessment of personal suitability to assist him in Canada." Further, she stated that his English was not an issue for personal suitability and that he had "some knowledge of Canada." Other than possible concerns with respect to settlement, she was unable to explain her below average assessment of his personal suitability, nor could she point to any factors justifying her assessment. In my opinion, in order to justify a below average assessment, a visa officer should be able to at least indicate some specific areas of concern which prompts the low mark, and not simply recite a standard list of relevant factors.
[25] In Kompanets v. Canada (Minister of Citizenship and Immigration, [2000] F.C.J. No. 726 (T.D.) at para. 11, Mackay J. states that a high level of deference must be accorded to a Visa Officer in relation to the Personal Suitability factor assessment :
¶ 11 The factor of personal suitability and the points awarded for it is a matter within discretion on the part of the visa officer. There was evidence before the visa officer regarding the visits of the applicant and her husband to Canada. There was also evidence of the resources available to them. These were referred to in the CAIPS notes made by the visa officer. There is nothing in the record or in the argument raised on this application to lead to a conclusion that there was no reasonable basis for the visa officer to assess the applicant as he did. Reasonable people may disagree on the points awarded, but significant deference must be accorded to the visa officer's discretionary finding of fact. No error of law or of jurisdiction has been shown and the finding on personal suitability should not be interfered with.
[26] The Applicant argues that if the Visa Officer had correctly awarded 16 units of assessment in accordance with the Immigration Act Regulations under the "Education" factor, then the Visa Officer might have found additional units under the Personal Suitability factor or might have exercised positive discretion in favour of the Applicant. This is purely speculative and, looking at the decision as a whole, together with the CAIPS notes, it is not a proposition that I can accept.
[27] The words of MacKay J. in Kompanets, supra, that "[...]there is nothing in the record or in the argument raised on this application to lead to a conclusion that there was no reasonable basis for the Visa Officer to assess the applicant as he did.[...]", are equally applicable in the case at bar. I find that no reviewable error was committed on this issue.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. There is no question for certification.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET:IMM-4085-01
STYLE OF CAUSE:SARFRAZ AHMED KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: June 18, 2003
REASONS FOR ORDER BY: RUSSELL J.
APPEARANCES BY: Ms. Sabrina Tozzi
For the Applicant
Ms. Leena Jaakimainen
For the Respondent
SOLICITORS OF RECORD: Green & Spiegal
Barristers & Solicitors
121 King Street West, Suite 2200, P.O. Box 114,
Toronto, Ontario
M5H 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030717
Docket: IMM-4085-01
BETWEEN:
SARFRAZ AHMED KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER