Federal Court Decisions

Date: 20030327

Docket: IMM-3590-01

Neutral citation: 2003 FCT 356

Ottawa, Ontario, this 27th day of March, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                     MJID FALLAHI

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review of the decision of a visa officer at the Canadian High Commission in Abu Dhabi, dated July 13, 2001, wherein the visa officer refused the applicant's application for permanent residence in Canada.

[2]                 The applicant seeks:

1.          An order for a writ of certiorari quashing the decision of the visa officer whereby the application for permanent residence made by the applicant was refused;

2.          An order for a writ of mandamus directing the respondent to process the applicant's application for permanent residence in a favourable manner;

3.          In the alternative, an order referring the matter to the Canadian High Commission, London, UK for reconsideration by a different visa officer to be completed within 90 days of granting the order;

4.          Such further and other relief as counsel may advise and this Court deems just.

Background

[3]                 The applicant is a citizen of Iran. On June 28, 2000, his counsel submitted an application on his behalf, for permanent residence in Canada, pursuant to the independent selection category, as an electrical engineer.

[4]                 The applicant attended an interview with a visa officer at the Canadian Embassy in Abu Dhabi. According to the applicant's affidavit, sworn August 2001, he explained to the visa officer that he worked in three different fields: electronic, computer and medical engineering. The applicant states he signed a declaration stating that when he was in Canada he would obey and comply with the requirements of the Canadian Council of Professional Engineers ("CCPE"). When in Canada, the applicant states he told the visa officer he would like to work in the field he is experienced in, but was also open to working in database administration. The applicant swears in his affidavit that he is fluent in English.

[5]                 By letter dated, July 13, 2001, the visa officer informed the applicant that his application for permanent residence in Canada had been refused. The letter stated:

I have now completed the assessment of your application and wish to inform you that it has been determined that you do not meet the requirements for immigration to Canada.

. . . You were assessed based on the requirements for the following occupation Electronic Engineer NOC 2133. You will find hereafter the units of assessment awarded for each of the selection criteria.

Age                                                               10

Occupational Factor                                  05

Education and Training                              17

Experience                                                   00

Arranged employment or

designated occupation                                00

Demographic Factor                                  08

Education                                                    15

Knowledge of English                                08

Knowledge of French                                 00

Personal Suitability                   03

Total                                                            66

After the interview, you have obtained insufficient units of assessment to qualify for immigration to Canada, the minimum requirement being 70 units.

. . .

You were also assessed as a Bio-medical Engineer NOC 2148. However, you have obtained insufficient units of assessment to qualify for immigration to Canada under that occupation.

. . .

[6]                 This is the judicial review of the decision of the visa officer.

Applicant's Submissions

[7]                 The applicant submits that the visa officer's conclusion that the applicant should be awarded no points for experience is logically inconsistent with an award of five points for occupational factor, and thereby constitutes an error of law. It is submitted that by awarding the applicant points for occupational factor, the visa officer must have determined that the applicant had some relevant experience in the intended occupational category of electronic engineer. The applicant submits that during his interview with the visa officer, he provided evidence that he had relevant work experience.

[8]                 The applicant submits that the visa officer breached his duty by failing to assess him as a biomedical engineer. It is submitted that a breakdown in the units of assessment granted to each factor is necessary to demonstrate that an assessment was made. The applicant submits that he has experience as a biomedical engineer, having performed some of these duties during his military service.

[9]                 The applicant submits that the visa officer was required to explore the possibility of a computer occupation with him and that the failure to provide the applicant with such an opportunity constitutes a reviewable error. It is also submitted that the visa officer was confused and unsystematic due to the contradiction between the confirmed intended occupations at the beginning of the interview, and the occupations under which the applicant was then assessed, as noted in the refusal letter.

[10]            The applicant submits that awarding him only three points for personal suitability is unreasonable. It is submitted that the visa officer had no discretion to take into account his ability to speak, write and read English and French, under Schedule 1, Item 9 "Personal Suitability" as this is already assessed under Schedule 1, Item 8 "Knowledge of English and French Languages". It is submitted that the visa officer's finding that the applicant failed to conduct a search for possible job opportunities is a case of "double counting". It is also submitted that because the applicant had been positively assessed by the CCPE, and has been continuously employed in the engineering and computer field since 1987, awarding him three units for personal suitability is unreasonable.

Respondent's Submissions

[11]            The respondent submits that the visa officer did not commit any material error with respect to her assessment of the applicant's work experience. It is submitted that the applicant did not provide evidence at the interview that he had work experience as an electronic engineer. In the visa officer's affidavit it is stated that the awarding of five units of assessment for the occupational factor was an inadvertent error.                  

[12]            The respondent submits that the visa officer did not fail to assess the applicant in his designated occupations, and in the occupation that the interview revealed the applicant was actually performing. It is submitted that the CAIPS notes and refusal letter clearly indicate that the visa officer assessed the applicant as a biomedical engineer and found that he had insufficient units of assessment. It is submitted that the visa officer did assess the applicant in the alternative computer occupation, as a computer service technician, NOC 2242.

[13]            The respondent submits that the visa officer committed no error in his assessment of the applicant's personal suitability. It is submitted that there was no double-counting of language ability, but instead the visa officer was focussing on the applicant's lack of effort to improve his English in preparation for immigration to Canada. This showed a lack of motivation, which is a personal quality officers are required to have regard for when assessing personal suitability. It is submitted that a lack of research into Canadian job possibilities, when considered from the perspective of personal qualities under the personal suitability factor, does not constitute double-counting.

[14]            Issues

1.          Did the visa officer commit a reviewable error by awarding the applicant five units of assessment under the occupational factor and no units of assessment under the experience factor?

2.          Did the visa officer fail to provide a thorough and fair assessment of the applicant in an alternative occupation, thereby committing an error of law and breaching the duty of fairness?

3.          Did the visa officer err in awarding the applicant only 3 points for personal suitability?

Relevant Statutory Provisions and Regulations

[15]            Subsections 6.(1) and 8.(1) of the Immigration Act, R.S.C. 1985, c. I-2, state:

6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations. 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.

6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure. 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.

[16]            The relevant sections of the Immigration Regulations, 1978, S.O.R./78-172 state:

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 (a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I; 9. (1) Subject to subsection (1.01) and section 11, where an immigrant, other than a member of the family class, an assisted relative, or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if (a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations; (b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8,

8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint: a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I; 9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si: a) l'immigrant et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; et b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8:

(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment, . . . 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.

(i) dans le cas d'un immigrant, autre qu'un entrepreneur, un investisseur, ou un candidat d'une province, il obtient au moins 70 points d'appréciation, . . . 11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant: a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire.

[17]            The relevant portions of Schedule I, Column II of the Immigration Regulations, 1978, supra state:

(2) The employment opportunities shall be determined by taking into account labour market activity on both an area and a national basis, following consultation with the Department of Human Resources Development, provincial governments and any other relevant organizations and institutions. 9. Personal Suitability 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 similar qualities.

(2) Ces possibilités sont déterminées en fonction de l'activité sur le marché du travail aux niveaux national et régional, après consultation du ministère du Développement des ressources humaines, des gouvernements provinciaux et de toute autre organisation ou institution compétente. 9. Personnalité Des points d'appréciation sont attribués au requérant au cours d'une entrevue qui permettra de déterminer si lui et les personnes à sa charge sont en mesure de réussir leur installation au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et autres qualités semblables.

Analysis and Decison

[18]            Issue 1

Did the visa officer commit a reviewable error by awarding the applicant five units of assessment under the occupational factor and no units of assessment under the experience factor?

In the refusal letter dated July 13, 2001, the visa officer stated the units of assessment awarded to the applicant for the occupation of electronic engineer (NOC 2133) for the occupational factor and experience factor to be:

Occupational Factor                   05

Experience                                  00

[19]            According to Schedule I, Column II, of the Immigration Regulations, supra, the criteria for occupational factor are as follows:

(1)            Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation

(a)             for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification;

(b)            in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and

(c)             that the applicant is prepared to follow in Canada.

(2)            The employment opportunities shall be determined by taking into account labour market activity on both an area and a national basis, following consultation with the Department of Human Resources Development, provincial governments and any other relevant organizations and institutions.

[20]            The criteria for experience are as follows:

Units of assessment shall be awarded for experience in the occupation in which the applicant is assessed under item 4 or, in the case of an entrepreneur, for experience in the occupation for which the entrepreneur is qualified and that the entrepreneur is prepared to follow in Canada, as follows:

(a)             when the number of units awarded under item 2 is five to seven, two units for each year of experience not exceeding two years;

(b)            when the number of units awarded under item 2 is five to seven, two units for each year of experience not exceeding two years;

(c)             when the number of units awarded under item 2 is 15, two units for each year of experience not exceeding three years; and

(d)            when the number of units awarded under item 2 is 17 or 18, two units for each year of experience not exceeding four years.

The applicant submits that he provided evidence that he had relevant work experience.

According to the CAIPS notes (respondent's record page 14), when the applicant was asked to read the NOC 2133 description for electrical and electronics engineer, the applicant indicated he had undertaken some of the essential duties.

[21]            The CAIPS notes state at pages 4 to 5 of the tribunal record:

NO EXPERIENCE IN HIS INTENDED OCCUPATION, DOES NOT MEET ESSENTIAL DUTIES;

INSUFFICIENT POINTS AS A BIO-MEDICAL ENGINEER.

THE APPLICANT HAS THE QUALIFICATION OF AN ELECTRONIC ENGINEER AND A BIO-MEDICAL ENGINEER IN THE FORM A B.SC AND OBTAINED A CCPE.

HOWEVER, HAS STATED HAVING WORKED AS A BIOMEDICAL ENGINEER ONLY WHILE DOING HIS MILITARY SERVICE. THE MILITARY SERVICE IN IRAN HAS A TRAINING COMPONENT AND THE APPLICANT WOULD ONLY HAVE COMPLETED ONE YR FULL-TIME IN HIS OCCUPATION. THE APPLICANT ADMITTED WORKING IN THIS FIELD AS A SERVICE ENGINEER ONLY INCIDENTALLY SINCE HIS HE WORKS MOSTLY AS A SYSTEM ADMINISTRATOR.    I AM NOT SATISFIED THAT APPLICANT HAS EXPERIENCE AS AN ELECTRONIC ENGINEER. THE APPLICANT HAD A STORE BETWEEN 1989 AND 1994 AND WAS SOURCING COMPONENTS ABROAD TO SELL IN IRAN. THE APPLICANT ADMITTED IT WAS IMPORT-EXPORT

OF EVERY KIND OF ELECTRONIC PARTS. NO DESIGN, ONLY ASSEMBLING. NO POINTS AWARDED FOR WORK IN THE CHEMICAL COMPANY BECAUSE THEY WERE NOT RELATED TO ELECTRONIC ENGINEER NOR BIO-MEDICAL ENGINEER. SINCE 1996 THE APPLICANT STATED INSTALLING AND SERVICING WINDOWS 2000 FO COMPUTER AND SOMETIMES SERVICING MEDICO-HOSPITAL EQUIPMENT. THE APPLICANT REPAIRS AND INSTALL MOSTLY INDIVIDUAL COMPUTER SYSTEMS. THIS ACTIVITY IS REGROUPED UNDER ELECTRONIC SERVICE TECHNICIAN OF THE NOC 2242.   

These notes disclose that the visa officer was not satisfied that the applicant had experience as an electronic engineer. The visa officer also addressed the applicant's experience as a biomedical engineer.

[22]            The visa officer, however, gave the applicant five units of assessment for the occupational factor and zero units of assessment for experience for the occupation of electronic engineer (NOC 2133). I am of the view that in these circumstances it is not correct to award five units of assessment for the occupation factor and zero units of assessment for experience (e.g. Dauz v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1307 (QL) (T.D.)). The visa officer's affidavit states at paragraph 11:

I wish to note that the CAIPS computer system automatically generates a unit award for the occupational demand and ETF factors corresponding to an applicant's intended occupation. Given my finding with respect to Mr. Fallahi's lack of experience, he did not merit any units for the factor of occupational demand, and it was my error in inadvertently failing to delete those units from Mr. Fallahi's total score.

Considering this evidence of the visa officer and the reference in the CAIPS notes that the applicant had no experience in his intended occupation of electronic engineer, I am of the opinion that the visa officer's granting of zero points for experience in the occupation of electronic engineer is not unreasonable. In coming to this conclusion, I also reviewed the contents of the reference letters. In any event, the affidavit of the visa officer makes it clear that the five units of assessment for the occupational factor was an error.

[23]            Issue 2

Did the visa officer fail to provide a thorough and fair assessment of the applicant in an alternative occupation, thereby committing an error of law and breaching the duty of fairness?

The applicant submitted that the visa officer did not do a thorough and fair assessment in his alternative occupation of biomedical engineer, as the officer did not show the breakdown of the units of assessment for each factor. The CAIPS notes show that the visa officer assessed the applicant in the occupation of biomedical engineer. The CAIPS notes at page 4 of the tribunal record state:

INSUFFICIENT POINTS AS A BIO-MEDICAL ENGINEER

. . .

HOWEVER, HAS STATED HAVING WORKED AS A BIOMEDICAL ENGINEER ONLY WHILE DOING HIS MILITARY SERVICE. THE MILITARY SERVICE IN IRAN HAS A TRAINING COMPONENT AND THE APPLICANT WOULD ONLY HAVE COMPLETED ONE YR FULL TIME IN HIS OCCUPATION.    

The refusal letter also states:

You were assessed as a Bio-medical Engineer NOC 2148. However, you have obtained insufficient units of assessment to qualify for immigration to Canada under that occupation.

The only factor that would be different in assessing the applicant as a biomedical engineer would be the experience factor.

[24]            The visa officer's affidavit stated at paragraph 12:

I was satisfied that Mr. Fallahi worked and had experience on a full-time basis as a biomedical engineer for one year, but he obtained insufficient points to qualify under that occupation. This was noted in my refusal letter dated July 13, 2001.

If the applicant received the two units of assessment for his one year of experience as a biomedical engineer, his total would be 68 units, and 70 units of assessment are required to be accepted. The visa officer did not make an error in this respect.

[25]            The applicant also submits that the visa officer has an obligation to assess the applicant in alternative occupations requested by the applicant. The CAIPS notes make it obvious that an assessment was done for the intended occupation of electronic service technician (NOC 2242). However, the visa officer did not show any breakdown of units of assessment. I have reviewed the factors and it would appear that only the occupational, education and training, and experience factors would change. If you allow the fixed units of assessment for the occupational factor and the education and training factor, and allow the maximum allowable units of assessment for experience which is eight units, the total units of assessment would only be 60 units. This is insufficient as the minimum requirement is 70 units of assessment. I do not find, on the facts of this case, that the visa officer made a reviewable error in this respect.

[26]            Issue 3

Did the visa officer err in awarding the applicant only 3 points for personal suitability?

According to Schedule I, Column II, of the Immigration Regulations, supra the criteria for personal suitability are as follows:

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 similar qualities.

In Gill v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 451 (QL) (T.D.) at paragraph 4, Jerome A.C.J. made the following remarks concerning a visa officer's assessment of personal suitability:

I am satisfied the visa officer did not err in refusing Mr. Gill's application for permanent residence. The legislative provisions confer a broad discretion on a visa officer in making a determination of this nature and it is entirely within his jurisdiction to form an opinion concerning an applicant's personal suitability based on factors such as adaptability, motivation, initiative, resourcefulness and other qualities. Provided that opinion is reasonable and is neither arbitrary or capricious, there are no grounds to warrant judicial interference.

[27]            In assessing the applicant's personal suitability, the visa officer's affidavit states at paragraphs 8 and 9:

Mr. Fallahi was not well prepared for his interview. While he had obtained an informal assessment from the Canadian Council of Professional Engineers, he admitted to not having read the letter he received from this organization, and had no knowledge of the process to become registered as an engineer in Canada. This did not show initiative to me. As indicated above, Mr. Fallahi admitted that he had not spoken English in a long time. The fact that he had not made an effort to improve his ability in spoken English in preparation for the interview showed a lack of motivation to me. He mentioned an Internet site for a job search, but when questioned further, it became apparent that, despite working in the computer industry, he had not conducted any search for possible job opportunities in his intended occupation or in his city of destination. This did not show a lot of resourcefulness to me.

I took into consideration Mr. Fallahi's statement that he would rely on his past travel experience for his adaptation in Canada. I believe that the points I awarded for the factor of personal suitability truly reflected Mr. Fallahi's suitability to become successfully established in Canada from an economic point of view.

I have reviewed the visa officer's assessment of personal suitability and considering the broad discretion given to visa officers to determine the units of assessment to be given for personal suitability, I cannot find that the visa officer was in error.

[28]            The applicant also raised the decision in Pang v. Canada (Minister of Citizenship and Immigration), 2001 F.C.T. 580, F.C.J. No. 868 (QL) (T.D.) to support the proposition that since the applicant was positively assessed by the Canadian Council of Professional Engineers and has been continuously employed in the engineering and computer fields since 1987, the award of three units of assessment for personal suitability was unreasonable. I do not read this case as standing for this proposition. Accordingly, I am of the view that the visa officer's decision is not unreasonable.

[29]            The application for judicial review is dismissed.

[30]            Neither party wished to have a serious question of general importance submitted for certification.

ORDER

[31]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                                     "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

March 27, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-3590-01

STYLE OF CAUSE: MJID FALLAHI

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                         

PLACE OF HEARING:                                   Toronto, Ontario

DATE OF HEARING:                                     Thursday, October 31, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Thursday, March 27, 2003

APPEARANCES:

                                     Ms. Sabrina Tozzi

FOR APPLICANT

Mr. Stephen H. Gold

FOR RESPONDENT

SOLICITORS OF RECORD:

Green and Spiegel

121 King Street West

Suite 2200, P.O. Box 114

Toronto, Ontario

M5H 3T9

FOR APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

FOR RESPONDENT