Date: 20030905
Docket: IMM-4515-01
Ottawa, Ontario, this 5th day of September, 2003
Present: The Honourable Justice James Russell
BETWEEN:
DERICK VERNON VAN SERTIMA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application brought by Derick Vernon Van Sertima (the "Applicant"), under s. 18.1(1) of the Federal Court Act, R.S.C. 1985, C.F-7, for judicial review of a decision of a Canadian Visa Officer in Georgetown, Guyana (the "Visa Officer") dated August 7, 2001, wherein the Visa Officer refused his application for permanent residence (the "Application"). The Applicant seeks an order setting aside the decision of the Visa Officer and requests that this matter be remitted back for determination by a different visa officer.
BACKGROUND
[2] On January 10, 2000, the Canadian High Commission in Port of Spain, Trinidad, received an application for permanent residence in the Applicant's name. The Applicant was interviewed for the first time with respect to this application on April 13, 2000, by an immigration officer who subsequently left the visa post. A decision was rendered by the Program Manager based on the CAIPS notes.
[3] The application was initially refused. After a judicial review application was launched, the matter was ultimately remitted back to a different officer for a new determination.
[4] On December 4, 2000, in Georgetown, Guyana, the Visa Officer interviewed the Applicant together with his wife, Damyantie Devi Van Sertima. The Applicant applied and was assessed under the category of Heavy Duty Equipment Mechanic.
THE VISA OFFICER'S DECISION
[5] The Visa Officer refused the Application and awarded 63 out of the necessary 65 units of assessment, with scores in the individual factors as follows:
Age: 10
Occupational factor 10
Education and Training Factor (ETF) 07
Experience: 04
Arranged employment: 00
Demographic factor: 08
Education: 10
English: 09
French: 00
Suitability: 05
TOTAL: 63
[6] Based on the Visa Officer's finding that the Applicant completed high school with a trade, the Applicant was given 10 units for Education under Factor 1 of Schedule I. He received 10 units for Occupation, which is the score given to Heavy Duty Equipment Mechanics.
[7] Based on the criteria set out in Factor 9 of Schedule I, namely adaptability, motivation, initiative, resourcefulness and other similar qualities, the Visa Officer awarded the Applicant 5 points for personal suitability.
PERTINENT LEGISLATION
[8] The relevant portions of section 8 of the Immigration Regulations 78 SOR / SOR-172 (the "Regulations") read:
8.(1)Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
...
(b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in column I of Schedule I, other than the factor set out in item 5 thereof;
...
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in column II thereof opposite that factor, but he shall not award for any factors more units of assessment that the maximum number set out in column II thereof opposite that fact.
...
(4)Where a visa officer assesses an immigrant who intends to be a self-employed person in Canada, he shall, in addition to any other units of assessment awarded to that immigrant, award 30 units of assessment to the immigrant if, in the opinion of the visa officer, the immigrant will be able to become successfully established in his occupation or business in Canada.
[9] Section 11 of the Regulations provides, in part, as follows:
11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant
(a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience; or
(b) is qualified for and is prepared to engage in employment in a designated occupation.
(2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless
(a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I;
(b) the immigrant has arranged employment in Canada; or
(c) the immigrant is prepared to engage in employment in a designated occupation.
[10] The Applicant needed 65 points overall to qualify for an immigrant visa.
[11] Schedule I to the Regulations sets out the basic criteria for each of the factors. Points in the Occupation factor are awarded where the intended occupation of the Applicant appears on the relevant occupation list, in addition to complying with the relevant requirements as listed in the NOC under that occupation. There is a maximum score of 10 units possible for this factor; the maximum is only awarded where the Applicant has arranged employment. Therefore, in order to meet the Regulations' minimum, the Applicant must demonstrate to the visa officer that he/she meets the requirements of the NOC and that he/she intends to practice in the indicated occupation when in Canada.
[12] Factor 9 of Schedule I of the Regulations sets out how personal suitability should be assessed:
Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness, and other qualities.
[13] The relevant portions of Factor 1 of Schedule I of the Regulations, dealing with the Education requirements are as follows:
(1) ....units of assessment shall be awarded as follows:
[...]
(b) where a diploma from a secondary school has been completed, the greater number of the following applicable units:
(i) in the case of a diploma that does not lead to entrance to a university in the country of study and does not include trade or occupational certification in the country of study, five units,
(ii) in the case of a diploma that may lead to entrance to university in the country of study, ten units, and
(iii) in the case of a diploma that includes trade or occupational certificate in the country of study, ten units;
(c) where a diploma or apprenticeship certificate that requires at least one year of full-time classroom study has been completed at a college, trade school or other post-secondary institution, the greater number of the following applicable units:
(i) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(I) or (iii) as a condition of admission, ten units, and
(ii) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(ii) as a condition of admission, thirteen units;
(d) where a first-level university degree that requires at least three years of full-time study has been completed, fifteen units; and
[...]
ISSUE
[14] There are three issues that arise in this case:
What is the standard of review that applies to the Visa Officer's decision to refuse the Applicant's application for permanent residence?
Did the Visa Officer err in her assessment of the Applicant's educational points?
Did the Visa Officer err in her assessment of the Applicant's personal suitability factor?
ANALYSIS
What is the standard of review that applies to the Visa Officer's decision to refuse the Applicant's application for permanent residence?
[15] The parties disagree on the standard of review applicable to this case. The Applicant suggests it should be reasonableness simpliciter while the Respondent asserts that this court should not interfere with the Visa Officer's decision unless it was patently unreasonable. Irrespective of the standard, however, I reach the same conclusions.
Did the Visa Officer err in her assessment of the Applicant's educational points?
[16] In order to assess whether the Visa Officer erred in her assessment of the Applicant's educational points, I refer to Schedule I of the Regulations. The criteria for the educational requirement are interdependent. As set out in Factor 1 of Schedule 1, subparagraph (c)(i), in the Regulations, in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(i) or (iii) of Factor 1 as a condition of admission, 10 units will be awarded. As such, 10 units is the maximum that the Applicant could receive under the educational factor and 10 units is what the Applicant was awarded by the Visa Officer.
[17] Under Factor 1 of Schedule 1, subparagraph (c)(ii), thirteen units may be awarded in the case of a diploma or apprenticeship certificate that requires the completion of a secondary school certificate referred to in subparagraph (b)(ii), i.e. a diploma that may lead to entrance to university in the country of study. The Applicant argues that he should be considered under this provision and should receive 13 units. I cannot agree. There is no evidence to suggest that the Applicant's secondary school diploma could lead to entrance to university in the country of study.
[18] The excerpts of the Visa Officer's notes that the Respondent drew to my attention demonstrate that the Visa Officer considered the nature of the Applicant's high school education:
didn't do exams at the end of hs but went to gov't technical school for two years of study at that time took three subjects in his filed/go a craft certif
- Letter from Min of Education and Cultural Development indicates that in order to take tech study would have needed to have successfully completed secondary school education
states that successfully completed means having attended til grade 10
...
applicant clearly does not have the usual completion of "o" or "a" level examinations to confirm that he attained a level of expertise that would mean clearly that he completed high school
given his letter from Min will give him consideration that completed hs with trade without going to Min for verif
[19] The Visa Officer committed no reviewable error in this regard.
Did the Visa Officer err in her assessment of the Applicant's personal suitability factor?
[20] 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.
[21] The Applicant argues that if the Visa Officer had correctly awarded 13 units of assessment in accordance with the Regulations under the education factor, then the Visa Officer might have found additional units under the personal suitability factor or may have exercised positive discretion in favour of the Applicant. Because I find that the Visa Officer correctly assessed the Applicant's education, this argument has no bearing on the personal suitability issue.
[22] The Applicant, however, urges the court to consider Azarpajooh v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 333 (Fed. T.D.), where Teitelbaum J. discussed the issue of how to deal with persons, such as the Applicant, who have gradually been promoted to managerial positions in their chosen vocation:
11 Because the applicant was not specific in his application on his own intended occupation, the ball was effectively in the visa officer's court to slot the applicant into a specific occupation under the Canadian Classification Dictionary of Occupations (CCDO), the text incorporated by reference into the Immigration Regulations, 1978 SOR/78-172 that is used by visa officers to make their assessments. In her affidavit, the visa officer makes no mention that she directly put to the applicant her "determinat[ion] that the occupation which most closely matched his experience was that of Manager, Engineering (CCDO 1131 118) (para. 9, page 2, respondent's record). The applicant alleges that at no point did he indicate to the visa officer that he wished to be employed as a Manager, Engineering.
12 The visa officer has a duty to reveal to the applicant what was in her mind so that the applicant could, if he desired, dispute the visa officer's finding and disabuse her of assumptions: Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205. In Hajariwala, supra, the Court granted judicial review because the visa officer did not give the applicant an opportunity to explain how his work experience related to more than one occupation. The respondent argues that the case at bar can be distinguished from Hajariwala because the applicant himself in Hajariwala had made representations that he met the definition of more than one occupation. In the case at bar, it would appear that the visa officer erred in failing to notify the applicant that he would be assessed under the occupation of Manager, Engineering. At the very least, she should have notified the applicant that he would be assessed under both headings.
[23] The Applicant indicates that, in her affidavit, the Visa Officer states at paragraph 21 that the Applicant would be unable to successfully establish in Canada, because, at least in part, "it appeared that he had moved from working 'hands on' in his field to more supervisory and administrative positions over the years."
[24] The Applicant submits that moving up in rank in one's occupation should not be a negative point, but rather a positive one. The Applicant cites Azarpajooh, supra, where Teitelbaum J. held that such analysis was an error from two perspectives. Firstly, by considering the Applicant effectively in a different category, the Visa Officer fails to give the Applicant an opportunity to disabuse her of her concerns about his ability to carry out the task in question. The Applicant submits that although in this case the question relates to successful establishment / personal suitability as opposed to occupation per se, the failure to give the Applicant an opportunity to disabuse the Visa Officer of her concerns was an error of law. Secondly, the Applicant submits that Azarpajooh, supra, stands for the proposition that capability in a managerial level position necessitates knowledge / experience in the 'lower' level position, and as such, there is no reason to believe that the person concerned could not function in or does not have the experience in the lower level position.
[25] The Respondent correctly states that the Applicant did not raise the issue of whether the Visa Officer considered him incorrectly as a manager as opposed to an actual Heavy Duty Equipment Mechanic for the purposes of the experience and occupational factors. However, the Applicant correctly points out that the Visa Officer discussed how the Applicant moved from working "hands on" to more supervisory and administrative positions over the years in the context of the personal suitability factor. She indicated, in relation to this issue, that "[t]he Applicant did not satisfy me that his current skills would enable him to successfully establish in Canada." Clearly, she considered this to be a serious and relevant issue to her assessment of the Applicant's personal suitability. Although the personal suitability category is highly discretionary, I see no reason why the Visa Officer should not have revealed to the Applicant what was in her mind "so that the [A]pplicant could, if he desired, dispute the [V]isa [O]fficer's findings and disabuse her of assumptions," to use the words of Teitelbaum J. in Azarpajooh, supra.
[26] I find that Visa Officer committed a reviewable error in this respect. Although the assessment of an Applicant's personal suitability is highly discretionary, the precise points awarded in this area are highly fact specific and of an individual nature. Luo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 385, (Q.L.) (T.D.) and Maniruzzaman v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 612, (Q.L.) (T.D.) indicate that a visa officer should engage in a broader assessment of the personal suitability factor where the applicant is one or two points short of the requisite total. In this case, an application of that principle would require the Visa Officer make further enquiries relating to the Applicant's actual "hands-on" skills to determine whether he would truly be able to establish himself in Canada as a Heavy Duty Equipment Mechanic.
ORDER
THIS COURT ORDERS that:
1. The decision of the Visa Officer be set aside and that this matter be referred back for determination by a different Visa Officer.
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-4515-01
STYLE OF CAUSE: DERRICK VERNON VAN SERTIMA v. MCI
DATE OF HEARING: July 30, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: RUSSELL, J.
DATED: SEPTEMBER 5, 2003
APPEARANCES BY: Mr. Benjamin A. Kranc
For the Applicant
Ms. Mielka Visnic
For the Respondent
SOLICITORS OF RECORD: Mr. Benjamin A. Kranc
Kranc & Associates
425 University Avenue
Suite 500
Toronto, Ontario
M5G 1T6
For the Applicant
Ms. Mielka Visnic
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent