Docket: IMM-5111-02
Ottawa, Ontario, this 12th day of November, 2003
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
BERNADINE MARIA MOSS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision made by Sandra Kim Brady, a Visa Officer, at the Canadian Consulate General in Detroit on October 1st, 2002 to deny an application for permanent Canadian residence in the "Independent" category.
[2] The applicant, Ms Bernadine Maria Moss, is an Indian citizen living in the United States. She submitted her application for permanent residence with the intended occupation of cook as per National Occupational Classification ("NOC") No. 6242. She was interviewed on September 30, 2002. The Visa Officer entered her notes regarding this interview in the Computerized Assisted Immigration Processing System ("CAIPS") on that same day. In a letter dated October 1st, 2002, the Visa Officer notified Ms Moss that her application had been refused.
[3] The Visa Officer assessed the applicant under each of the factors listed in Column 1, Schedule 1 of the Immigration Regulations. The applicant was awarded a total of 48 points; the number of points required to qualify for a Visa is 70. As a result, the Visa Officer refused the application.
[4] The applicant was awarded the following units of assessment for each of the selection criteria:
Age (39) 10
Occupational factor 00
Education and Training Factor /
Experience 00
Arranged Employment or designated occupation 00
Demographic factor 08
Education 15
Knowledge of English 09
Knowledge of French 00
Personal suitability 06
Total 48
[5] In her application for leave and judicial review, the applicant essentially submitted three arguments:
1. the applicant argued that the Visa Officer violated a principle of natural justice by denying her procedural fairness;
2. that the Visa Officer acted in an "arrogant and un-compassionate" manner without regard to the evidence as demonstrated by her allotting the applicant zero points for work experience despite her 14 years of work as a cook/Chef/restaurant manager; and
3. that the Visa Officer failed to provide reasons that would stand up to a "somewhat probing examination for the assertion that the applicant's oral responses about cooking were common knowledge or minimal".
[6] I agree with the respondent that the applicable standard of review for discretionary decisions made by Visa Officers with regards to immigration applications remains, as stated by the Supreme Court in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at pages 7-8:
Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed on considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[7] I will address the applicant's second and third arguments first. Whether the Visa Officer acted without regard to the evidence in allotting the applicant zero points for work experience despite her 14 years of work as a cook is a factual issue which falls into the category of a Visa Officer's discretionary powers. Therefore, unless the conclusion is clearly wrong or unreasonable, this Court will not intervene in the matter.
[8] The Visa Officer's CAIPS notes, decision and affidavit, show that she based her finding, that the applicant does not fulfill the work experience requirements to be a cook as per as NOC No. 6242, on the answers provided during the September 30, 2002 interview. The applicant's answers to the series of work related questions about her intended occupation as a cook are clearly within the bounds of common knowledge and support the Visa Officer's determination that, while her documents suggest that she has a background in food preparation, her responses to the questions asked were minimal and inconsistent with knowledge that would reasonably be expected from a person with 14 years work experience as a cook.
[9] The Visa Officer did not restrict her analysis to one particular area of food preparation, but considered various aspects such as food storage, preparation, proper food handling and preventing contamination. The CAIPS notes made on the day of the interview indicate that the applicant did not "volunteer any comprehensive answer" and that "responses are minimal and not informative". The general order of the questions recorded and sequence of the concerns raised are consistent with the explanation that several attempts were made to have the applicant provide sufficient information to assess her work experience. The Visa Officer's CAIPS notes also show that the applicant's documentation relating to training and work experience were adequately considered. Both the applicant and respondent are in agreement that during the interview the Visa Officer directly addressed the concern that the responses provided did not demonstrate a level of knowledge consistent with the applicant's training and experience as well as the fact that the applicant was given several opportunities to provide additional information.
[10] The evidence on file shows that the Visa Officer considered all of the information the applicant provided, including the documentary proof of her training and work experience. Furthermore, the reasoning behind the conclusion that the applicant did not satisfy the selection criteria is clearly explained in the notes. It is therefore my opinion, that awarding zero points to the applicant for experience in this case was reasonable.
[11] With regards to the question of procedural fairness, I refer to the Supreme Court decision in Baker v. Canada (Minister of Citizenship and Immigration) [1999], 2 S.C.R. 817 at page 819:
The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker. Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive.
[12] The duty of fairness owed in the circumstances of the case at bar is more than minimal. The applicant must have "a meaningful opportunity to present various types of evidence relevant to their case and have it fully and fairly considered". The uncontested elements in this matter demonstrate that this requirement was fulfilled. The applicant was given a fair opportunity to have her case heard and respond to the concerns raised. The application was duly considered and the Visa Officer's concerns were clearly stated both during the interview as well as in the CAIPS notes outlining the reasons for her decision.
[13] For these reasons, I find that the Visa Officer's determination that the applicant failed to satisfy the requirements of the Immigration Regulations, 1978 and her decision to refuse the application were reasonable.
[14] Counsel did not propose any question for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review be dismissed and no question will be certified.
"Simon Noël" Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5111-02
STYLE OF CAUSE: BERNADETTE MARIA MOSS v. MCI
DATE OF HEARING: November 4, 2003
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER: The Honourable Mr. Justice Simon Noël
DATED: November 12th, 2003
APPEARANCES BY: Mr .Max Chaudhary
For the Applicant
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD:
Chaudhary Law Office
18 Wynford Drive, Suite 707
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent