Date: 20030508
Docket: IMM-3468-02
Neutral citation: 2003 FCT 576
BETWEEN:
ALLAN RAMOS ESPEDIDO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Delivered from the Bench at Calgary, Alberta
on Thursday, May 8, 2003)
[1] The applicant applies for judicial review of the decision of a visa officer denying his application for permanent residence in Canada in the independent category under the former Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The applicant is a citizen of the Philippines. He holds a Bachelor of Science in Business Administration degree from the University of the East in Manila. He was employed,
at ADA Video and Laser Tech Inc., from 1993 until 2001 initially as an audit clerk (1993-94), then as a cashier (1994-95), then as a store manager (1995-99) and finally, as operations consultant (1999-01). When he applied for permanent residence in the independent category in November, 2001, he included a request for admission on humanitarian and compassionate grounds. The applicant's mother as well as his sister and brother-in-law live in Canada.
[3] The application was filed at the Canadian Embassy, Makati City, Philippines and was paper screened. The applicant was not granted an interview on the basis that he did not meet the requirements of section 11.1 of the now defunct Immigration Regulations, 1978 SOR/78-172 (the Regulations). The visa officer assessed the applicant in accordance with the National Occupation Classification (NOC) description for three occupations: Video Store Rental Manager, NOC 0621 (the actual title for NOC 0621 is listed as Retail Trade Manager and Video Store Manager is listed as one of the job titles that falls within the broader occupation), Cashier, NOC 6611 and Audit Clerk, NOC 1431. The applicant received 51 units of assessment for Cashier, 52 units of assessment for Audit Clerk and 56 units of assessment in relation to the Video Rental Store Manager job title. His application on humanitarian and compassionate grounds was forwarded to the acting program manager for assessment and it, too, was rejected. This application for judicial review relates only to the visa officer's
assessment regarding the Video Rental Store Manager. The units of assessment awarded in
relation to this occupation were:
AGE 10
OCCUPATIONAL FACTOR 00
ETF/S V.P. 05
EXPERIENCE 04
A.R.E. 00
DEMOGRAPHIC FACTOR 08
EDUCATION 15
ENGLISH 09
FRENCH 00
BONUS 05
TOTAL 56
[4] The applicant alleges that in view of his most recent position (operations consultant), he should have been assessed as a Senior Consultant, Occupations Management or Management Consultant, NOC 1121.1, or as a Marketing Consultant, NOC 4163. He argues that he satisfies the requirements for these two positions and that the visa officer erred in law, made erroneous findings of fact and breached procedural fairness in failing to assess his application on this basis. The applicant refers to the purpose of the Act, i.e., to permit immigration, and submits visa officers are obliged to provide thorough and fair assessments.
[5] I am not persuaded that the visa officer erred in law, made an erroneous finding of fact or failed to provide a thorough and fair assessment. Nor have I been persuaded that there was a breach of procedural fairness.
[6] The applicant's application does not refer to an intended occupation. Rather, it states "any position in retail business." The visa officer deposes that she reviewed the descriptions of duties and work environments provided by the applicant, in his supporting documentation, and then researched the NOC in an effort to find the corresponding occupations that best matched the information provided. The visa officer determined that Video Rental Store Manager, Cashier and Audit Clerk were the best matches. The job title of Video Rental Store Manager yielded the greatest number of units of assessment for the applicant, but not sufficient units to convoke an interview. A review of the material and specifically the application contained in the Tribunal Record provides ample support for the visa officer's approach in this regard. The applicant bears the onus of satisfying the visa officer that he qualifies for immigration to Canada. There is no duty to assess an applicant in alternative occupations unless an applicant has requested an assessment in a suggested occupation: Hassan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 2012 (T.D.). The authority relied upon by the applicant, Li v. Canada (Minister of Employment and Immigration (1990), 9 Imm. L.R. (2d) 263 (F.C.T.D.),was interpreted by Rouleau J. in Moksud v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 73 as follows:
It is noteworthy that Li, by itself, does not stand for the overarching proposition that there is a responsibility on the part of the visa officer to assess alternate occupations inherent in the applicant's work experience. What Li actually stands for is that such a duty exists when applicants request it in their application.
[7] The failure of the visa officer to consider potential NOC occupations that were not put to her by the applicant does not result in a breach of procedural fairness. The visa officer cannot be faulted for failing to assess the applicant in a specific occupation where the applicant failed to specify any intended occupation. Similarly, the officer did not err in law or make an erroneous finding of fact in this respect. Moreover, a review of the CAIPS notes reveals that the officer did consider the applicant's most recent position before turning to her assessments in three job titles.
[8] The applicant also argued that additional units should have been awarded for the occupational experience, ETF, and personal suitability factors. It is evident from a review of the CAIPS notes that the visa officer awarded zero for the occupation factor (Factor 4) because there was no demand for the occupation Video Rental Store Manager when the assessment was completed. Failure to attain one unit of assessment for Factor 4 constitutes a bar to the granting of a visa by virtue of subsection 11(2) of the Regulations. The assessment of the other factors, in these circumstances, even if incorrect, is immaterial.
[9] Regarding the argument that an interview should have ben granted under section 11.1 of the Regulations, the interview is granted only if at least one unit of assessment is awarded for each of the experience and occupation factors. That is not the situation here. Finally, I see no merit in the argument that the visa officer interpreted the regulations in an unduly narrow fashion. The visa officer applied the regulations properly and appropriately.
[10] In the result, for the reasons provided, the application for judicial review will be dismissed and an order will so provide. Counsel for the applicant suggested the following question for certification: "Did the visa officer exercise her discretionary power in a transparent manner in assessing the applicant's application for permanent residence in Canada as an independent immigrant in accordance with procedural fairness?" The respondent objects to certification on the basis that the question relates only to the specific facts of this particular matter and does not raise a serious question of general importance. I agree with the respondent's position. No question is certified.
"Carolyn Layden-Stevenson"
JUDGE
Calgary, Alberta
May 8, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3468-02
STYLE OF CAUSE: Allan Ramos Espedido v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: Thursday, May 8, 2003
REASONS FOR ORDER
DELIVERED FROM THE
BENCH: LAYDEN-STEVENSON, J.
DATED: May 8, 2003
APPEARANCES:
Mr. H. Alex Casuga FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. H. Alex Casuga
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT