Date: 20030528
Docket: IMM-5353-02
Citation: 2003 FCT 671
Ottawa, Ontario, this 28th day of May, 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
BHARAT RAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under section 82.1 of the Immigration Act, R.S.C., c. I-27, (the "Act") for a review of a decision by a visa officer. The Applicant was refused permanent residency by N. M. Egan (the "Visa Officer") at the Immigration Regional Programme Centre in Buffalo, New York. The refusal is based on the Visa Officer's assessment of the Applicant with only 45 points.
Facts
[2] The Applicant is a 35-year old citizen of India who has been in Canada since approximately April 1997. Since then, he has worked at two Indian cuisine restaurants with validated work permits from Citizenship and Immigration Canada. He began working for The HOST Restaurant in Toronto, with a validated work permit, in December 1999.
[3] Before coming to Canada, the Applicant worked as a foreign foods chef in Berlin, Germany for three years, also with a validated work permit. Before leaving India, he also worked as a cook.
[4] The Applicant speaks English and is married with two children. His current employer, The HOST restaurant, submitted a letter with the application indicating that a position of employment would be available to the Applicant upon his receiving permanent resident status.
[5] The refusal letter from Visa Officer N. M. Egan was sent to the Applicant on September 23, 2002. The letter indicated that the Applicant fell within the class of people described in paragraph 19(2)(d) of the Act as not complying with all the requirements of the Act, and so was inadmissible to Canada. The letter read in part:
I assessed you in the [Chef NOC 6241.3] occupation, as requested on your application, and which you can reasonably be expected to follow in Canada. When assessed in this occupation, you have obtained insufficient units of assessment to qualify for immigration to Canada. I am convinced that the points received accurately reflect your chances of settling successfully in Canada.
[6] The refusal letter was sent without the Visa Officer granting an interview. The regulations only require an interview when the pre-interview assessment indicates that the Applicant will receive at least 60 points.
Issues
[7] The Applicant indicates that the three issues before the Court in this case are:
1. That the Visa Officer erred in not granting the Applicant points for his arranged employment at The HOST Restaurant;
2. That the Visa Officer erred in not granting the Applicant points for personal suitability; and
3. Because he had graduated from high school, that the Visa Officer erred in not granting the Applicant points under education.
[8] The Respondent points out that, in order to be successful in this application, the Applicant needs a favourable decision in each of the three issues he has raised.
Relevant Statutory Provisions
[9] The relevant portions of section 19 of the Act state:
|
19.(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
. . .
(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
(3) A senior immigration officer or an adjudicator, as the case may be, may grant entry to any person who is a member of an inadmissible class described in subsection (2) subject to such terms and conditions as the officer or adjudicator deems appropriate and for a period not exceeding thirty days, where, in the opinion of the officer or adjudicator, the purpose for which entry is sought justifies admission. |
19.(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui:
. . .
d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.
(3) L'agent principal ou l'arbitre peut, lorsque les motifs de la demande lui semblent justifier l'admission, accorder l'autorisation de séjour à des personnes faisant partie de l'une des catégories non admissibles visées au paragraphe (2), sous réserve des conditions qu'il juge appropriées et pour une durée maximale de trente jours. |
Analysis
Standard of Review
[10] Neither party discussed the relevant standard of review applicable to this case. The Federal Court has not been totally consistent in determining the appropriate standard of review applicable to a decision of a visa officer. In some cases, judges have applied the standard of patently unreasonable, while others have used reasonableness simpliciter, following Reed J. in Hao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 296 (T.D.). There, she applied the pragmatic and functional approach set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and concluded that because there is no privative clause but there is a statutory right of appeal, the balance is tipped towards reasonableness simpliciter.
[11] In Yin v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 985 (T.D.), O'Keefe J. also used the pragmatic or functional approach as follows and came to a similar conclusion at paragraph 20:
1. There is no privative clause and there is no requirement that leave be granted before a judicial review can proceed ... These facts suggest a lower level of deference.
2. The decision maker in this case is an immigration officer, as designated by the Minister pursuant to subsection 109(2) of the Act. Because this immigration officer is stationed outside of Canada, she is referred to as a visa officer. A visa officer processes visa applications on a regular basis, and has considerable expertise in this area. These factors suggest greater deference to a visa officer's decision.
3. Under section 11 and Schedule I of the Immigration Regulations, 1978, the visa officer must determine whether or not the applicant qualifies to obtain a visa to enter Canada. A visa officer has considerable discretion but he or she must be guided by Schedule I. In my view, this suggests that the visa officer's decision is entitled to greater deference by the Court, but not total deference.
4. The nature of the problem in this case is the determination of facts and the application of these facts to the regulatory guidelines. Thus, the question is one of mixed fact and law and as such, a level of deference akin to reasonableness simpliciter is appropriate.
[12] O'Keefe J. thus determined that the standard of review for visa officer's decision of applications for permanent residence status is reasonableness simpliciter.
[13] Generally, this is the standard of review I feel is appropriate in reviewing the decisions of mixed fact and law made by the Visa Officer in this case.
Arranged Employment
[14] In her affidavit, the Visa Officer explained why she did not award any points to the Applicant in this category:
In order to be eligible for additional points for Arranged Employment, Mr. Ram would require a Permanent Foreign Worker Record, meaning that his employer would have had to apply for this through the Human Resources Development Centre. Since his employer did not do this, and there was no evidence on file that was in process, he was not eligible for additional units in this factor.
[15] Applicant's counsel points out that the Applicant has been working as a Chef in Toronto since 1997 and that he has been in possession of four validated work permits during that time. He was in possession of a validated work permit at the time the application was submitted and considered. This being the case, the Applicant asserts that he was entitled to ten points under this factor and the Visa Officer ignored the evidence before her concerning his arranged employment.
[16] Counsel for the Respondent points out that, while the Applicant's employer indicated the Applicant would have a full-time position at his establishment should permanent residence be granted, the employer did not indicate that it would submit a permanent job offer for assessment by the National Employment Service. All of the Applicant's work permits were of a temporary nature. Factor 5 of Schedule 1 of the Immigration Regulations, 1978 requires a National Employment Service assessment of the permanent position, and not a temporary work permit before points can be awarded.
[17] Factor 5 of Schedule 1 of the Immigration Regulations, 1978 requires, among other matters, that:
|
5.(a) the person has arranged employment in Canada that, based on the information provided by the National Employment Service, offers reasonable prospects of continuity and wages and working conditions sufficient to attract and retain in employment Canadian citizens or permanent residents, |
5.a) le requérant a, au Canada un emploi réservé qui, d'après les renseignements fournis par le service national de placement, offre des perspectives de durée raisonnablement bonnes et des conditions de travail et un salaire de nature à attirer des citoyens canadiens ou des résidents permanents pour qu'ils exercent et continuent d'exercer l'emploi en question, |
[18] In D'Souza v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 268, the Court made it clear that there is no requirement arising by implication of the Act or the Regulations that a visa officer must consult on his or her own initiative the National Employment Service. The onus is upon the Applicant to demonstrate to the satisfaction of the visa officer that the criteria for admission have been met.
[19] In the present case, notwithstanding the fact that the Applicant had been employed in Canada under successive valid work permits, there is no evidence that the Visa Officer was provided with the required National Employment Service assessment or that the conditions of Factor 5 of Schedule 1 were satisfied. Hence, it is not possible to fault the Visa Officer's decision in this regard.
Education
[20] There were also problems under the education factor. In this regard, the Visa Officer stated in her affidavit as follows:
Mr. Ram stated on his application that he had completed two years of high school. He did not substantiate that this was a complete high school career, nor did he substantiate that completion of two years of high school would give him admission to college or university.
[21] The Applicant argues that he submitted documentary evidence that he completed high school so that he should have been awarded five points.
[22] The Respondent points out that the documentation on file regarding the Applicant's time in high school only shows the Applicant as having taken six courses. It does not show that the Applicant completed high school.
[23] The Applicant's application of August 15, 2001 claims that he "completed 10 years of schooling and received a secondary school examination certificate/matriculation examination certificate." His IMM 0008 (10-1999) INDEPENDENT form claims that he had eight years of elementary/primary school and two years of secondary/high school.
[24] Factor 1 of Schedule 1 of the Immigration Regulations, 1978 says that no units of assessment shall be awarded where a diploma from a secondary school has not been completed or, where a diploma from a secondary school has been completed, then only five units can be awarded in the case of a diploma that does not lead to entrance to university in the country of study and does not include trade or occupational certification in the country of study.
[25] Included in the Certified Tribunal Record is an untranslated certificate which the Applicant says is his high school diploma. The Respondent points out that the English portion of this diploma merely lists six courses that the Applicant has taken. There is no indication in English that the Applicant completed high school.
[26] The Applicant says that the Visa Officer should have referred this certificate to an appropriate visa officer for clarification and guidance of its full significance. The Respondent says the applicable operating manual merely contains a suggestion that the Visa Officer refer a document of this nature for guidance. The Visa Officer was not required to do so and, in any event, failure to follow such a guideline is not reviewable.
[27] Both Ho v. Canada (Minister of Employment and Immigration) (1994), 88 F.T.R. 146(T.D.) and Cheng v. Canada (Secretary of State) (1994), 25 Imm. L.R. (2d) 162 (T.D.) indicate that although guidelines are important, they do not have the force of law and failure to follow them is not in itself an error worthy of referring the matter back for redetermination. Furthermore, Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 (T.D.) appears to be authority for the proposition that, in the face of ambiguity, the onus does not shift to the visa officer to inquire further, provided the officer has acted in good faith and there is no wilful blindness. In the present case the Visa Officer points out in her affidavit that the Applicant stated in his application that he had completed two years of high school, but he did not substantiate that this was a complete high school career or that completion of two years would give him admission to college or university. Hence, once again it is difficult to fault the Officer on taking the approach she did nor to find her conclusions unreasonable.
[28] This being the case, it would be pointless to proceed further on the basis of the issues raised by the Applicant.
[29] The application for judicial review is therefore dismissed.
ORDER
THE COURT HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5353-02
STYLE OF CAUSE: BHARAT RAM v. MCI
DATE OF HEARING: April 23, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: Justice James Russell
DATED: May 28, 2003
APPEARANCES BY: Mr. David Yerzy
For the Applicant
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD:
Mr. David Yerzy
14 Prince Avenue
Suite 108
Toronto, Ontario
M5R 1A9
For the Applicant
Mr. Martin Anderson
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto ON
M5X 1K6
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030528
Docket: IMM-5353-02
BETWEEN:
BHARAT RAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER