Date: 20021223
Docket: IMM-1161-01
Neutral citation: 2002 FCT 1324
BETWEEN:
NIRMAL SINGH
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 in respect of a decision of Visa Officer Wendy Bazett of the Canadian Consulate General, Immigration section in Sydney, Australia ("the Visa Officer"), dated January 31, 2001.
[2] The application for permanent resident status in Canada was denied on the grounds that the Applicant failed to obtain at least 70 units of assessment, the minimum number required to comply with the selection criteria for immigration to Canada pursuant to s. 9(1)(b) of theImmigration Regulations, 1978 ("the Regulations"). The Applicant now seeks an order quashing this decision and referring the matter back to a different visa officer for reconsideration.
[3] The Applicant was born on August 27, 1961 in Labasa, Fiji, where he currently resides. He is a citizen of Fiji.
[4] On March 9, 1999, with the assistance of counsel in Canada, the Applicant's wife's uncle submitted a request to Citizenship and Immigration Canada's (CIC) Business Immigration Unit in Toronto for approval of a permanent offer made to the Applicant, under the Family Business Job Offer guidelines. That request was approved by Tsering Nanglu of the CIC office on October 15, 1999. Based on this approval, the Applicant submitted an application for permanent residence in Canada under the Independent (Assisted Relative) category to the Canadian High Commission in Sydney, Australia, on February 29, 2000.
[5] In connection with his application, the Applicant was assessed as "Administrative Officer", which was the position he intended to take up in his wife's uncle's business in Canada. The Applicant attended an interview on October 17, 2000 at Fiji that was conducted by the Visa Officer. By letter dated January 31, 2001,he was notified that his application was refused. He was awarded only 55 points out of the 70 points that are required for admission to Canada pursuant to sections 9(1)(b) of the Regulations.
[6] The operative parts of the refusal letter of January 31, 2001 expressing the Visa Officer's decision and reasons state:
[...]
I INTERVIEWED YOU ON 17 OCTOBER, 2000. BASED ON THAT INTERVIEW AND THE DOCUMENTS SUBMITTED WITH YOUR APPLICATION, I HAVE ASSESSED YOU IN YOUR INTENDED OCCUPATION (OFFICE MANAGER: NOC CODE 1221.0) FOR WHICH YOU WERE AWARDED THE FOLLOWING UNITS OF ASSESSMENT:
AGE 10
OCCUPATIONAL FACTORS 1
EDUCATION AND TRAINING 7
EXPERIENCE 0
ARRANGED EMPLOYMENT 10
DEMOGRAPHIC FACTOR 08
EDUCATION 0
ENGLISH LANGUAGE ABILITY 9
FRENCH 0
BONUS (FOR ASSISTED RELATIVES) 5
PERSONAL SUITABILITY 5
TOTAL UNITS OF ASSESSMENT (MAXIMUM 99) 55
[...]
YOU WERE AWARDED 10 POINTS FOR HAVING ARRANGED EMPLOYMENT THROUGH A FAMILY BUSINESS JOB OFFER HOWEVER YOU HAVE NO EXPERIENCE IN THE OCCUPATION FOR WHICH THE JOB OFFER WAS MADE. IN ADDITION YOU SCORED ZERO POINTS FOR EDUCATION AS YOU HAVE NOT COMPLETED THE EQUIVALENT OF SECONDARY SCHOOLING IN THAT YOU HAVE NOT OBTAINED A CERTIFICATE OF ATTAINMENT FOR FORM 6 IN FIJI.
[7] Further, appended to the Tribunal Record are the Visa Officer's CAIPS notes which provide the following additional information given in support of the refusal of the Application:
[...]
INTENDED OCCUPATION: WILL BE EMPLOYED IN FATHER-IN-LAW'S BROTHER'S FAMILY BUSINESS. JOB IS FOR THE GENERAL OPERATION AND ADMINISTRATION OF COMPANY'S HEAD OFFICE.
EDUCATION: PA DID NOT COMPLETE SECONDARY SCHOOL. JUST DID 3 YRS OF SECONDARY SCHOOL. DID ONE TERM AT F.I.T. IN BUILDING AND CIVIL ENGINEERING BUT THEN DROPPED THE COURSE. PA GETS ZERO PTS FOR EDUCATION. OTHER COMPUTER COURSES TAKEN WERE JUST SHORT TERM COURSES. NO ONE YR STUDY PROGRAMS.
HAS A LICENSE AS WATERWORKS FITTER ISSUED NOV93. NO FORMAL EDUCATION IN THIS FIELD. JUST BASED ON PRACTICAL WORK EXPERIENCE FROM FAMILY BUSINESS.
JAN80-DEC81: DRAUGHTSMAN. NO FORMAL TRAINING AS DRAUGHTSMAN OTHER THAN ONE COURSE TAKEN AT FIT AS PART OF HIS ENGINEERING PROGRAM WHICH HE DROPPED. PA SAYS THAT HE THEN WENT INTO FAMILY BUSINESS WITH FATHER IN A CAFÉ. BUSINESS REGISTRATION: IN 1989 UNDER PA'S NAME FOR MILKBAR IN THEATRE
REFERENCE LETTER DATED NOV85 (FROM PA'S FATHER) STATED HE WAS WORKING IN CONSTRUCTION BUSINESS IN BUILDING AND DRAFTING. EMPLOYMENT LETTER FROM BABURAM CONSTRUCTION CO DATED JAN87 STATES PA DID DRAUGHTING JOBS FOR THEM. A SUBSEQUENT LETTER FROM SAME COMPANY DATED AUG89 STATES PA WAS WORKING FOR THEM AS A DRAUGHTSMAN FROM 87-89
LETTER FROM LAW OFFICE DATED SEP95 ATTESTING THAT OVER PAST 10 YRS PA WAS CARRYING OUT HIS BUSINESS AS A DRAUGHTSMAN.
WHEN DID YOU FIRST REGISTER YOUR BUSINESS AS A DRAUGHTSMAN? 1990
DID YOU HAVE ANY EMPLOYEES IN THIS BUSINESS? NO. JUST BY MYSELF
HAVE YOU EVER WORKED IN THE MILKBAR? MY WIFE LOOKS AFTER THAT BUSINESS. NO STAFF. OPEN 8AM-6PM. 7.4M X 9.0M
[...]
DO YOU HAVE ANY STAFF (I.E. SECRETARY) IN THE DRAFTING BUSINESS? NO
WHAT RATE OF TAX DO YOU PAY ON YOUR BUSINESS? 33%. WE COMBINE THE BOOKS FOR THE MILKBAR AND THE DRAFTING BUSINESS TO ONE SOURCE OF INCOME.
SAYS THAT HE HELPS OUT IN THE MILKBAR ON THE WEEKENDS. AND FROM 4:30 - 6 PM EACH DAY AFTER HE CLOSES HIS BUSINESS.
DO YOU HAVE A COMPUTER AT YOUR BUSINESS? NO
WHAT WAS YOUR TOTAL PROFIT AFTER TAX LAST YR (MILKBAR AND DRAFTING)? $7000
IN UNCLE'S BUSINESS IN CDA HOW MANY EMPLOYEES ARE THERE? 3
WHO LOOKS AFTER THE FINANCIAL ACCOUNTING OF THE BUSINESS IN CDA? UNCLE I THINK.
PA SAYS HE HIRES AN ACCOUNTANT TO DO HIS BUSINESS RETURNS AT YEAR END BUT HE KEEPS A DAILY JOURNAL OF EXPENSES AND INCOME.
WIFE'S IMM8 SHOWS SHE ONLY BECAME SELF-EMPLOYED AS A CAFÉ OWNER AS OF 1995.
ASKED PA TO EXPLAIN DISCREPANCY AS HE SAID HE HAD MILKBAR SINCE 1989. WHO RAN THE SHOP FROM 89-95? MY BROTHER.
I AM NOT REALLY SATISFIED THAT PA HAS THE NECESSARY EXPERIENCE TO QUALIFY HIM FOR PROPOSED JOB BEING OFFERED.
WILL REVIEW DOCS AND REQUIREMENTS FOR FBJO BEFORE MAKING DECISION. BELIEVE HE STILL NEEDS TO GET 70 PTS TO QUALIFY BUT ZERO DEMAND CAN BE OVERCOME BY JOB OFFER.
E-MAIL TO T. NANGLU. BUSINESS IMMIGR. UNIT
REF OUR B036459673
YOUR 3297-38422948
FBJO FROM HARIJANDER SINGH ON BEHALF OF NIRMAL SINGH
CASE IS IN PROCESS OUR OFFICE. LETTER ON OUR FILE PROVIDED BY APPLICANT'S LAWYER IS FROM YOUR OFFICE (YOUR SIGNATURE) TO HARIJANDER SINGH DATED 15OCT99 INDICATING THAT FBJO WAS APPROVED AND COPY OF THE SUBMISSION WAS BEING FORWARDED TO SYDNEY.
I CAN FIND NO RECORD OF OUR OFFICE EVER RECEIVING THE DOCS FROM YOUR OFFICE. I INTERVIEWED OUR APPLICANT LAST WEEK TO ASSESS HIS WORK EXPERIENCE AND QUALIFICATIONS BUT WITHOUT A COPY OF THE FULL SUBMISSION I AM UNSURE OF WHAT THE JOB OFFER POSITION IS AND WHAT REQUIREMENTS THE PERSON FILLING THE JOB MUST HAVE. THE APPLICANT PROVIDED ME WITH SOME INFO ABOUT THE PROPOSED JOB BUT I AM NOT SURE IF HIS INFO MATCHED WHAT WAS GIVEN TO YOUR OFFICE. WOULD THEREFORE APPRECIATE IF YOU COULD FAX A COPY OF THE JOB OFFER DETAILS TO MY ATTENTION A.S.A.P. SO I CAN MAKE A DETERMINATION ON THIS CASE. AT PRESENT I HAVE SERIOUS DOUBTS ABOUT THE APPLICANT'S ABILITY TO FILL THE JOB OFFER.
[...]
I HAVE CAREFULLY REVIEWED THIS APPLICATION. PA HAS ESSENTIALLY BEEN EMPLOYED AS A SELF-EMPLOYED DRAFTSMAN. HE HAS NO EXPERIENCE IN SUPERVISING/DIRECTING OTHER STAFF OR MANAGING AN OFFICE. CONSULTANT FOR PA HAS ASKED THAT PA BE CONSIDERED UNDER THE OCCUPATIONS OF OFFICE MGR (NOC 1221.0) (AKA ADMIN OFFICER). ADMIN CLERK (NOC 1441.0) OR OFFICE CLERK SUPERVISOR (NOC 1211.0). ADMIN OFFICER SEEMS TO MOST CLOSELY FIT THE JOB OFFER.
PA, IN MY OPINION, HAS NO WORK EXPERIENCE IN ANY OF THE ABOVE OCCUPATIONS SO ZERO POINTS WERE AWARDED FOR EXPERIENCE. HOWEVER, AS THIS IS FBS WOULD NOT HOLD THIS AS A BAR TO APPROVAL IF PA HAD EDUCATION OR RELATED BACKGROUND EXPERIENCE WHICH WOULD LEAD ME TO BELIEVE HE WOULD BE CAPABLE OF FULFILLING JOB DESCRIPTN
PA HAS NOT COMPLETED THE EQUIVALENT OF SECONDARY SCHOOL SO GETS ZERO PTS FOR EDUCATION.
PA HAS BEEN GIVEN THE 5 BONUS PTS FOR RELATIVE IN CDA AND 10 PTS FOR ARRANGED EMPLOYMENT.
PA STILL FAILS WELL SHORT OF 70 PTS FOR SELECTION.
APPLICATION REFUSED.
[8] The Applicant now seeks to have this decision overturned in the present application for judicial review.
[9] The Applicant has raised the following issues in this application:
1) Did the Visa officer err by basing her decision on an erroneous finding of fact made in a perverse and capricious manner by requiring that the Applicant present a "Certificate of Attainment for Form 6" in order to establish proof of his completion of high school?;
2) Did the Visa Officer err and thereby reach a decision which is perverse in concluding that, while the Applicant was entitled to unit points for the Occupation Factor and the Education/Training Factor, he was not entitled to any unit points for experience?;
3) Did the Visa Officer err by arbitrarily assessing the Applicant's personal suitability for Canada without regard for the information properly before her?
[10] The Applicant submits that the evidence clearly shows that the Visa Officer erroneously required that he present a Certificate of Attainment for Form 6 ("Certificate of Attainment") in order to establish that he had completed his secondary school education in Fiji. The Applicant presented to the officer a letter from his high school principal and a university entrance examination result notice indicating that he was qualified for university entrance as proof of his high school education; that the Visa Officer refused these documents and specifically required a Certificate of Attainment as the only acceptable proof of his high school education. It is argued that this is confirmed both by the Visa Officer's refusal letter and the Applicant's affidavit; that the Visa Officer's decision on this issue is an erroneous finding of fact made in a perverse or capricious manner and warrants this Court's intervention. Had she not required this specific document, the Applicant would have scored an additional ten points.
[11] The Applicant alleges that he attempted to enlighten the Visa Officer that he had gained work experience that was relevant to his assessment as an Administrative Officer. He provided two letters of reference from Harish Chandra Constructions Ltd. and Riverview Private Hotel Ltd in support of his contentions. However, the Visa Officer denied in her Affidavit that the Applicant provided her with any of this information. She indicated that he only provided her with detailed information with respect to his work as a draftsman, which she found to be insufficient evidence of experience as an administrative officer.
[12] The Visa Officer reached a decision that is perverse in nature because although she awarded the Applicant one point for Occupational Demand and seven points for the Employment/Training Factor ("ETF"), she failed to award the Applicant any points for experience. It is submitted that if an applicant is awarded points under the Occupational Factor, then it must be inferred not only that the Applicant meets the NOC qualifications for employment, including the educational requirements, but that the applicant has also performed a substantial number of the main duties as set out in the NOC description of the intended employment: Dauz v. Canada (Minister of Citizenship and Immigration) (1999), 2 Imm. L.R. (3d) 16 (F.C.T.D.); Kopyl v. Canada (Minister of Citizenship and Immigration) (2000), 7 Imm. L.R. (3d) 281 (F.C.T.D.).
[13] A reviewable error was committed when an applicant is awarded points for ETF and Occupational Demand, yet awarded zero points for experience: Kapustynska v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 170 (QL) (F.C.T.D.). The Visa Officer's decision on ETF and Occupational Demand is inconsistent with her award of zero points for the Experience Factor.
[14] Finally, the Visa Officer is not credible when she refers to her overall impressions of the Applicant as a means of assessing his personal suitability. She arbitrarily awarded the Applicant five points under this heading without regard to the facts.
[15] The Visa Officer's assessment of the Applicant's personal suitability would have been different had she not erred in awarding the Applicant zero points for the Education and Experience Factors. Ultimately, had the Visa Officer not erred in her other findings, the Applicant could have received as many as 19 additional points, which would have brought his total to 74 units and have been sufficient to grant him admission to Canada; this is an appropriate case for the Court to intervene.
[16] I am of the view that the officer's decision in this case is reasonable in light of the evidence before her.
[17] In her affidavit, the Visa Officer explained her reasoning for awarding the Applicant zero points under the Education factor as follows:
Mr. Singh stated during his interview that he had completed only 3 years of secondary schooling and that he had not obtained a Certificate of Attainment for Form 6 in Fiji, which would equate to the successful completion of secondary schooling. Mr. Singh therefore receives no units of assessment for education. Mr. Singh subsequently enrolled in several short term computer courses and completed only one term of a Fiji Institute of Technology course. None of these courses contribute to units of assessment for education.
[18] In her refusal letter, the Visa Officer based her award of zero units of assessment for education on the fact that the Applicant had not obtained a Certificate of Attainment, a perusal of the record reveals that she clearly acknowledged that at the time the Applicant graduated from high school, such a document was not issued by the Fijian school system. The latter was in fact administered by the Ministry of Education using a New Zealand curriculum at the secondary school level where students wrote the New Zealand University Entrance Examination at year twelve of their studies; the certificates/results of the examination were registered by the New Zealand Board of Education.
[19] It is not clear whether the Applicant would not have been able to secure a Certificate of Attainment had he requested one today for the purposes of fulfilling a requirement for obtaining permanent residence in Canada. In any event, what is clear is that the Visa Officer was also presented with a faxed document by Mrs. Mere Tora of the Fijian High Commission confirming that an individual presenting a result notice of the University Entrance Examination with the statement "qualified for university entrance" serves as evidence that the individual has successfully completed his or her high school education in Fiji. Being fully aware of this situation, the Visa Officer stated in her affidavit that she did not recall Mr. Singh ever presenting evidence that he had successfully passed the New Zealand University Entrance Examination. She further acknowledged that such a document would have been satisfactory evidence that Mr. Singh had successfully completed secondary school and therefore he would be awarded ten units for education. The question therefore is whether the Visa Officer was in fact presented with such evidence and, if so, whether she erred in ignoring it and requesting instead the production of a Certificate of Attainment.
[20] The Applicant's Record filed in the judicial review contains a faxed copy of a document indicating that he had been permitted to take university entrance exams that would have required high school completion. However, the Certified Tribunal Record does not contain the document. During the cross-examination on her affidavit, the Visa Officer acknowledged that she would not necessarily record every document with which she was presented at the interview, only the relevant ones. She also swore that had the Applicant provided this document to her, it would be a very relevant piece of evidence with respect to his education and would necessarily have been copied as part of the record and mentioned in the CAIPS notes. The Applicant counters that the Visa Officer purposely did not record this document because, based on her own assessment of the Applicant's education during the interview, she considered his evidence to be insufficient to show that he completed high school education.
[21] While there is conflicting affidavit evidence regarding whether or not this document was presented to the officer, I cannot accept the Applicant's suggestion and give it more weight than the officer's evidence. It may well be that the Applicant had completed his high school education, but there is no evidence on the record that the Applicant had successfully passed the New Zealand University Entrance Examination. Accordingly, the Applicant has not demonstrated to my satisfaction that the Visa Officer erred in awarding him zero points for education and misplaced the documents tendered during the interview.
[22] The Applicant's affidavit also indicates that he attempted to explain to the Visa Officer that he had gained relevant work experience with two businesses, the Harish Chandra Constructions Ltd. and Riverview Private Hotel Ltd.; that he explained he was responsible for ensuring that deadlines were met and office procedures were properly followed; he was responsible for the implementation of new procedures; he performed a number of financial duties including the preparation of an operating budget for the businesses and employee wages. The two letters of reference from these two companies support his contention that the officer ignored this important evidence and did not even give him an opportunity to discuss with her his administrative duties performed for these two employers.
[23] The Visa Officer on her part deposes in her affidavit and explained in her cross-examination that she was not provided with any of the letters of reference and information; rather, the Applicant only provided her with detailed information with respect to his work as a draftsman which was not evidence that he possessed any work experience in the administrative field.
[24] The Applicant's Record contains copies of the two letters of reference from the employers, but once again no such document appears in the Certified Tribunal Record. It was suggested that the Visa Officer purposely did not record these documents because, based on her own assessment of the Applicant's work experience during the interview, she considered his evidence to be insufficient to describe him as an Administrative Officer pursuant to the NOC definition. Once again, there is conflicting affidavit evidence regarding whether or not these documents were presented to the Visa Officer. I am satisfied that had the Applicant provided these document to the officer, they would necessarily have been copied as part of the record and mentioned in the CAIPS notes since they were very relevant with respect to his work experience as an administrative officer. It should also be noted that in his application there is no mention of this part-time employment in answer to the questionnaire referring to occupation or work experience.
[25] The allegation that the Visa Officer incorrectly assessed him under the "Experience" factor when she awarded him zero points. Cases have held that such an error is reviewable if it has a material effect upon the ultimate decision and if there was some evidence before the visa officer of relevant experience amounting to one year: Dauz, supra at para. 11-12; Hagona v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1378 (QL) (F.C.T.D.) at paras. 10-12; Yar v. Canada (Minister of Citizenship and Immigration) (2000) 10 Imm. L.R. (3d) 99 at para. 16 (F.C.T.D.); Kapustynska, supra at para. 19. I would add that not only must there be some relevant evidence of at least one year experience in the intended occupation before the visa officer, but such evidence must be meaningful and credible: Dizon v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 135 (QL) (F.C.T.D.) at para. 5. In the case at bar, the Visa Officer emphatically found that the Applicant did not have any experience concerning the main duties under the intended NOC category.
[26] The Visa Officer stated in her affidavit, and this is clearly apparent from her notes, that she reviewed these letters of reference submitted by the Applicant and asked him to explain in his own words the duties that he had performed. She also asked him questions about his employment as a draftsman and his own business. She then reviewed with the Applicant the duties and requirements as they appear in his job offer and under the NOC for the occupation of Administrative Officer. She advised him that he had not performed a substantial amount of the main duties as they appeared under the NOC for this occupation. She explained this in her affidavit as follows:
[...] Mr. Singh provided employment reference letters and letters of personal attestation which all specified that Mr. Singh had been working as a draftsman. [...] Mr. Singh stated at his interview that he became self-employed as a draftsman in 1990. I asked Mr. Singh if he had ever had any other employees in his drafting business and he stated that he did not. Mr. Singh stated that he ran his drafting business from a partitioned off area of a milkbar which was staffed by his wife since 1995. From 1989-1995 the milkbar had been operated by Mr. Singh's brother. Mr. Singh has minimum involvement in the operation of the milkbar. Mr. Singh made no indication that he possessed any other work experience in the administrative filed.
[...]
I do not believe that Mr. Singh has demonstrated work experience in the areas of responsibility as stated in the offer of employment. However, I have considered that it is possible that he could become trained in the required duties within a reasonable amount of time and therefore I have allowed Mr. Singh the 10 units of assessment for Arranged employment.
[27] The Visa Officer was of the opinion, and this is clear from the evidence in the record, that the Applicant's experience was that of a draftsman and he did not have any experience as an administrative officer. From her CAIPS notes it is clear that she informed the Applicant of her concerns and gave him sufficient opportunity to respond. Whether or not an applicant meets the requirements contained in the NOC obviously requires a weighing of the evidence with respect to the applicant's experience and training, a task to be undertaken by the visa officer alone. As Dawson J. concluded in Farooqui v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 306 at para. 14-15 (F.C.T.D.), I am satisfied that the Visa Officer was entitled to conclude on a fair, broad reading of the NOC description that the Applicant did not have experience as an Administrative Officer, even if he was awarded one unit under the Occupational Factor. From her analysis, I can come to no other conclusion but to agree with the decision that the Visa Officer made in awarding zero points of assessment for experience.
[28] Because subsection 11(2) of the Regulations precludes visa officers from issuing visas to applicants who fail to earn at least one point in the experience factor, no visa could issue to the Applicant in the case at bar. Hence, even though there is a reviewable error on the face of the decision with respect to the Visa Officer's assessment of occupational demand, the error could have no effect on the ultimate outcome of the application. Therefore, I would hold that no judicial intervention is warranted on this issue.
[29] In conclusion, accepting that the Visa Officer did err in her assessment of the Applicant under the Occupational Factor but that her determination of the Applicant's work experience was reasonably open to her on the evidence, I am satisfied that this is not a case for the Court to intervene. Considering this determination, I need not find whether the Visa Officer erred in her assessment of the Applicant's personal suitability; this, in itself, would not be sufficient to warrant quashing the Visa Officer's ultimate decision to reject the application.
[30] Accordingly, I dismiss the application for judicial review.
JUDGE
OTTAWA, Ontario
December 23, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1161-01
STYLE OF CAUSE: NIRMAL SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, DECEMBER 12, 2002
REASONS FOR ORDER BY: ROULEAU, J.
APPEARANCES BY: Mr. Gregory James
For the Applicant
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD: Mr. Gregory James
Mamann & Associates
Barristers & Solicitors
18 Wynford Drive
Suite 303
Toronto, Ontario
M5C 2A5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent