Date: 19991104
Docket: IMM-6825-98
BETWEEN:
THI MY HIEN NGUYEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a decision of a visa officer at the Canadian High Commission in Singapore determining that the applicant did not meet the requirements for immigration to Canada and, indeed, did not meet the requirements that would have entitled her to be called for a personal interview with a visa officer. The decision of the visa officer is dated the 16th of November, 1998.
[2] The applicant is a citizen of Vietnam who is in her mid-twenties. At all times relevant to this application, she was unmarried and without dependants. From 1992 to 1996, the applicant studied at the University of Economics in Ho Chi Minh City, Vietnam. She graduated with an honours degree in economics. Following graduation, she undertook a one-month computer course to upgrade her technical skills which she completed at the end of April, 1997. Immediately thereafter and until the time of her application for permanent residence in Canada, she was employed in Ho Chi Minh City, at an ice skating arena, as an "accountant of administration". A certificate provided by her employer in support of her application simply indicates that the applicant is a member of the employer"s staff "...working at the ice skating arena...".
[3] The applicant"s application for permanent residence in Canada was sponsored by her brother who is a citizen of Canada.
[4] The visa officer"s decision letter reads in part as follows:
| Sections 10 (1) and 11(1) and (2) of the Regulations require that an assisted relative applicant obtain at least one unit of assessment in each of the factors of experience and occupational demand, and a minimum of 65 units of assessment, to qualify for admission to Canada. |
| Your occupational skills and qualifications were assessed with reference to Canada"s National Occupational Classification (NOC). This reference text outlines and describes in the Canadian context the duties, responsibilities and minimum qualifications necessary for various occupations undertaken in Canada. |
| You were assessed based on the requirements for the following occupation: |
| Bookkeeper, NOC 1231.0 |
| You were awarded the following units of assessment: |
| [units of assessment totalling 54] |
| You have obtained insufficient units of assessment to qualify for immigration to Canada in your intended occupation. |
| In view of my decision to refuse your application, you will not be called for a personal interview with a visa officer. |
[5] Counsel for the applicant urged that the visa officer erred in law in reaching the decision under review, based his or her decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material that was before the visa officer, and failed to observe a principle of natural justice, procedural fairness or other procedure that the visa officer was required by law to observe.
[6] It was not in dispute on this application that the applicant was applying to come to Canada as an "assisted relative" as that term is defined in section 2 of the Immigration Regulations, 1978 (the "Regulations")1 or that, as such, she required only 55 units of assessment, rather than 60, to qualify for an interview.2 Rather, the alleged reviewable errors on the part of the visa officer concerned the failure on the part of the visa officer to assess the applicant in the occupation of "accountant" the occupation disclosed in the applicant"s application as that in which she was employed immediately prior to the filing of her application and related failure on the part of the visa officer to provide the applicant with an interview in order to assess her "personal suitability".
[7] A further alleged reviewable error, only very indirectly raised in the applicant"s written material but addressed directly at the hearing before me related to the clear indication in the visa officer"s CAIPs notes that he or she was awarding the applicant 59 units of assessment, including a "bonus" of 5 units of assessment while the decision letter indicated an award of only 54 units with no reference to the bonus units. Clearly, this discrepancy, if unjustified, would have resulted in an entitlement on the part of the applicant to an interview.
[8] There is no provision in law to support the award of the 5 "bonus" units referred to in the visa officer"s CAIPs notes. Rather, the reference to "bonus" units of assessment is apparently an administrative adjustment to accommodate technical systems in place in the respondent"s Ministry. Paragraph 4.09 of the Immigration Manual3, under the heading "Selection and Control" and dealing with "bonus points - pass marks" reads in part as follows:
| The Regulations state: |
| Independent applicants require a passmark of 70 points. |
| ... |
| Assisted relatives need a passmark of 65 points. |
| ... |
| Note: The computer system and IMM1343 Immigrant Assessment Record - Abroad have been designed to accept "pass" marks of 70. In order for applicants who qualify as ... assisted relatives to "pass" administratively, officers are to assign "bonus" points for meeting the definition of their category. These "bonus" points are: |
| ... |
| 5 points for assisted relatives who applied after February 1, 1993; |
| ... |
I am satisfied that the assignment of 5 bonus points in the visa officer"s CAIPs notes reflected this administrative adjustment to acknowledge that administrative systems "...have been designed to only accept "pass" marks of 70", and no other purpose. Thus, when in his or her decision letter, the visa officer deleted the "bonus" points, he or she was merely reflecting the terms of law which require a "pass mark" of only 65 points or units of assessment for an applicant who is an assisted relative. In so doing, the visa officer committed no error.
[9] I turn then to the issue of failure to assess the applicant in the occupation of "accountant".
[10] The applicant did not request that she be assessed in the occupation of "accountant". The certificate that she provided with her application to come to Canada, apparently a certificate from her employer, did not indicate that she was employed as an "accountant". In any event, the applicant had been employed for only a brief period of time prior to the time when she filed her application.
[11] Subsection 8(1) of the Immigration Act4 reads as follows:
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
[12] In Muhammed v. Canada (Minister of Citizenship and Immigration)5, Mr. Justice Evans wrote at paragraph 19:
| The relevant question therefore is whether the applicant had provided sufficient evidence in his application, at the interview and in the subsequent correspondence from the immigration consultants, to show that the occupation ... was "inherent" in the applicant"s work experience. One of the sources of difficulty with this visa application is the lack of clarity and specificity with which the applicant described the duties that he performed in the course of his employment. A letter from the applicant"s employer might have clarified matters. However, while the visa officer is not permitted to adopt a passive posture in processing an application, at the end of the day it is the responsibility of the applicant to present to the visa officer complete information about his experience in a manner that is readily comprehensible. |
Justice Evans concluded that, on the facts before him, the visa officer did not err when he failed to assess the applicant under an alternative occupation.
[13] I am satisfied that the words of Justice Evans and his conclusion apply here. In this case, there was a letter or "certificate" from the applicant"s employer. However, that letter or certificate did not in any sense clarify matters in a manner that would have reasonably led the visa officer to assess the applicant in the category of "accountant".
[14] In Tahir v. Canada (Minister of Citizenship and Immigration)6, Madame Justice Tremblay-Lamer wrote at paragraph 8:
| The applicant submits that when an application is deficient, the visa officer has a duty to request supporting documentation or to grant an interview in order to substantiate the application. I do not agree. The onus is on the Applicant to file an application together with any relevant supporting documentation. There is no duty for the visa officer to try to bolster an incomplete application. Obviously, the visa officer may make inquiries, when warranted, but, where the applicant simply provides a job title and does not even care enough to provide any of the available supporting material, I find it offensive to suggest that the burden is shifted and that the visa officer should have done more than she did. |
Once again, I am satisfied that the foregoing is applicable on the facts of this matter.
[15] Justice Rothstein, reached a similar conclusion in Lam v. Canada (Minister of Citizenship and Immigration)7, where he wrote at paragraphs 2 to 4:
| The application for permanent residence was denied without a personal interview. The applicant says he was entitled to a personal interview so that he could clarify his training and experience as a Chef-Cook for the visa officer. However, his application for permanent residence is clear. He applied to work as a Chef-Cook and there was nothing in the application or material he submitted that demonstrated training or experience in that occupation. In other words, there was nothing to clarify. |
| At best, the applicant must be saying that his application is ambiguous and that when he included in his work history that he was a manager/trainee and assistant manager at McDonald"s, that this placed the onus on the visa officer to inquire, through a personal interview, whether those occupations gave him training or experience as a Chef-Cook. However, if correct, this argument gives an advantage to applicants for permanent residence who file ambiguous applications. This cannot be correct. |
| A visa officer may inquire further if he or she considers a further enquiry is warranted. Obviously, a visa officer cannot be wilfully blind in assessing an application and must act in good faith. However, there is no general obligation on a visa officer to make further inquiries when an application is ambiguous. The onus in on an applicant to file a clear application together with such supporting documentation as he or she considers advisable. The onus does not shift to the visa officer and there is no entitlement to a personal interview if the application is ambiguous or supporting material is not included. |
[16] Here, the application was more than ambiguous; while it indicated that the applicant was employed as an "accountant", the only documentation filed in support of a claim to assessment as such was a letter or certificate indicating that the applicant was a member of the employer"s staff "... working at the ice skating arena...". It simply did not support the claim. Further, the applicant gave no indication whatsoever that she wished to be assessed in the category of "accountant". She stated her intended occupation was that of "bookkeeper". It surely cannot be said, on the basis of the material before the Court, that the visa officer whose decision is here under review was "...willfully blind in assessing [the application]" or failed to act in good faith.
[17] On the basis of the foregoing considerations, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified. There will be no order as to costs.
______________________________
Judge
Ottawa, Ontario
November 4, 1999
__________________2 See subparagraph 11.1(a)(ii) of the Regulations.
3 Employment and Immigration Canada, Immigration Manual: Selection and Control , vol. 1 (Ottawa: The Minister, 1989 updated to 11-94).
5 [1998] F.C. J. No. 1481 (Q.L.), (F.C.T.D.).