Date: 20031211
Docket: IMM-1784-02
Ottawa, Ontario, this 11th day of December, 2003
Present: The Honourable Justice James Russell
BETWEEN:
THUSHARA DHAMENDRA MADURASINGHE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision ("Decision") of visa officer Mark Giralt ("Visa Officer"), dated February 20, 2002, refusing the application of Thushara Dhamendra Madurasinghe ("Applicant") for permanent residence.
BACKGROUND
[2] The Applicant applied for an immigrant visa to Canada under the skilled worker/independent class. His application was received by the Canadian High Commission in Columbo, Sri Lanka, on April 10, 2001. The Applicant attended before the Visa Officer on February 19, 2002, for an interview. On February 20, 2002, the visa application was refused. In his Decision, the Visa Officer concluded that the Applicant did not merit sufficient units of assessment to qualify for immigration in his intended occupation.
[3] The Applicant had requested that he be assessed under the occupation of "Agricultural Consultant," as described in the National Occupational Classification ("NOC"). The Applicant claimed to have been working as an Agricultural Consultant in Sri Lanka since July, 1998. At the time of the Applicant's interview on February 19, 2002, the Applicant submits that he had accumulated over 3.5 years of work experience as an Agricultural Consultant.
[4] The Visa Officer awarded the Applicant a total of 69 units of assessment, including 2 units for experience as an Agricultural Consultant. The award of 2 units for experience was based on the Visa Officer's conclusion that the Applicant, having performed the main duties of an Agricultural Consultant as described in the NOC on 273 working days since July of 1998, had accumulated only one year of experience as an Agricultural Consultant.
[5] The Visa Officer arrived at the figure of 273 working days after examining the amount of time spent by the Applicant in carrying out field duties on 3 half days per week in 3.5 years since July of 1998. In awarding only 2 units of assessment for experience, the Visa Officer took the view that the Applicant performed the duties of an Agricultural Consultant only when doing field work such as making field visits to the cultivation sites of his employer.
RELEVANT LEGISLATION
[6] The duties of an "Agricultural Consultant" as described in the NOC are:
(a) Provide counselling and advisory services to farmers on crop cultivation and fertilization, harvesting, animal and poultry care, disease prevention, farm management, farm financing, marketing and other agricultural subjects;
(b) Prepare and conduct advisory information sessions and lectures for farmers and other groups;
(c) Conduct research, analyze agricultural data and preparing research reports;
(d) Liaise with researchers, educators and government or business managers on matters pertaining to farming and agriculture; and
(e) Maintain records of services provided and the effects of advice given.
ISSUES
[7] The issues raised by the Applicant are:
Did the Visa Officer make a perverse finding of fact or ignore relevant evidence before him when he concluded that the Applicant had only one year of work experience as an Agricultural Consultant?
Did the Visa Officer fetter his discretion by interpreting the main duties of an Agricultural Consultant too restrictively?
Did the Visa Officer breach the duty of fairness owed to the Applicant by failing to give the Applicant ample opportunity to reply to his concerns regarding the Applicant's experience as an Agricultural Consultant?
ARGUMENTS
Perverse Findings of Fact and Ignoring Relevant Evidence:
[8] The Applicant submits that the description of Agricultural Consultant as set out in the NOC includes activities that go beyond field work, and that, in addition to work carried out in the field, the Applicant performed other duties that fall within the ambit of the NOC description. For example, a letter from the Applicant's employer (Lassana Flora (Pvt) Limited) dated January 10, 2001, confirmed that, among other things, the Applicant was responsible for "recording data & preparing reports of operations carried out at a field level, by statistical analysis." The Applicant asserts that these activities fall within the scope of the main duties itemized by the NOC, specifically duties (c) and (e).
[9] The Applicant also submits that the same employer's reference letter confirms that he was also responsible for "carrying out feasibility studies on alternative investment opportunities in the plantation and livestock and horticultural industries and preparing project appraisal reports in this regard." It is submitted that these activities fall within the description of duties itemized in the NOC description under (c).
[10] The Applicant points out that the reference letter also confirms that the Applicant "communicates any recommendations" to the Board of Directors of the Company, following his visits to the plantation sites, and that he was responsible for "reporting to the Board of Directors any recommendations and actions that need to be implemented in regards to new purchases or acquisitions of raw materials or equipment and tools." Given the fact that the Board of Directors can be considered as "business managers" and the fact that the company's business involved the cultivation of agricultural produce (flowers), the Applicant submits that these activities fall within the description of duties itemized in the NOC description under (d).
[11] The Applicant confirmed the fact that he carried out these duties in his interview, and this is reflected in the CAIPS notes:
"Goes back to office in Rajagiriya and prepares a site visit report setting out the details of his visit"
"Conducts feasibility studies for prospective projects. Does an appraisal report"
Conducts "market research using data from official sources regarding production and related issues."
[12] The Applicant concludes that, when assessing his accumulated experience as an Agricultural Consultant, the Visa Officer did not take into consideration these additional duties, all of which fall within the ambit of the NOC's description of the main duties of an Agricultural Consultant. The Applicant submits, therefore, that the Visa Officer failed to consider all the pertinent facts and/or ignored relevant evidence.
Improper Fettering of Discretion:
[13] The Applicant submits that it is an established principle that if a visa officer unduly fetters his/her discretion, a reviewable error has been committed.
[14] The Applicant suggests that, in this case, the Visa Officer committed a reviewable error by failing to take into consideration duties other than field work which are included in the NOC description of the main duties of an Agricultural Consultant, and that the Visa Officer unduly fettered his discretion by determining that only those activities carried out on-site could qualify as experience under the NOC description for an Agricultural Consultant.
Overly Restrictive Interpretation of the NOC Guidelines:
[15] The Applicant argues that the Visa Officer interpreted the scope of an Agricultural Consultant's duties more narrowly than is warranted by the NOC description, which is the definitional guide used in assessing independent applicants and, in so doing, awarded the Applicant less units of assessment for work experience than he deserved and, as a result, treated the Applicant unfairly.
Breach of Duty to Act Fairly:
[16] The Applicant finally submits that the duty of fairness requires, in certain circumstances, that a visa officer should apprise an applicant of his/her concerns and give the applicant an opportunity to respond (Fong v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.), Basco v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 406, 43 F.T.R. 233 14 Imm. L.R. (2d) 21 (Q.L.) (T.D.),Yang v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 218)).
[17] The Applicant notes that the Federal Court of Appeal indicated in Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 at 215 that a visa officer has a "duty before disposing of the application to inform the appellant of the negative assessment and to give him a fair opportunity of correcting or contradicting it before making the decision required by the statute."
[18] The Applicant alleges that, immediately after his interview at the Canadian High Commission on February 19, 2002, he informed his legal counsel of the Visa Officer's concerns. By letter sent via facsimile transmission by the Applicant's counsel to the Visa Officer on February 20, 2002, the Applicant's counsel addressed the Visa Officer's concerns. However, by this time, the Visa Officer had already rendered the Decision. The Applicant submits that, since the Visa Officer was aware that the Applicant was represented by counsel, it was incumbent upon the Visa Officer to allow the Applicant sufficient time to consult with his counsel and permit his counsel to respond to the stated concerns. Because this was not done, the Applicant argues that the Visa Officer acted unfairly towards him.
ANALYSIS
Standard of Review:
[19] In Hao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 296, Reed J. applied the pragmatic and functional approach set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 to determine the standard of review of visa officer decisions and concluded that, because there is no privative clause and there is a statutory right of appeal, the balance is tipped towards the standard of reasonableness simpliciter.
[20] In Yin v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 985 (T.D.), O'Keefe J. analyzed the standard of review of visa officer decisions using the pragmatic or functional approach as follows at para. 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.
[21] O'Keefe J. thus determined that the appropriate standard of review for a visa officer's decisions relating to applications for permanent residence status is reasonableness simpliciter.
[22] There is another line of reasoning, however, that applies the much more stringent standard set out in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2. In Kalia v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 998 (T.D), MacKay J. applied Maple Lodge Farms, supra. He wrote the following at paragraph 8:
In my view the standard of review of a discretionary decision of a visa officer in assessing experience of an intended immigrant in relation to a particular occupation is well settled. In accord with the decision of the Supreme Court of Canada in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, a court will not intervene in regard to the exercise of discretion vested by statute merely because the court might have exercised the discretion differently if it had been charged with the responsibility. Where it has been exercised in good faith, without reliance on irrelevant or extraneous considerations the courts should not interfere. Moreover, the decision in this case is essentially one of fact (see Mahoney J.A. for the Court of Appeal in Lim v. Canada (Minister of Employment and Immigration), (1991) 121 N.R. 241, 12 Imm L.R. (2d) 161, [1991] F.C.J. No. 8 (QL)(C.A.)). Where the decision in question is one of fact this Court will intervene only if it concludes the decision is patently unreasonable or in other words, as provided in s-s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, where the decision is based on an erroneous finding of fact made in a perverse or capricious manner. (See: McKeown J. in Sharma v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1131, [2001] F.C.J. No. 1562 (QL)(T.D.).
[23] The Federal Court of Appeal has also applied Maple Lodge Farms, supra, as the appropriate standard of review in visa officer's decisions. In To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696, at paragraph 3, the following passage appears:
Here the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. 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 upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[24] A significant factor in considering the appropriate standard of review in any case is the nature of the question before the Court. In the case at bar, the Court is asked to review whether the Visa Officer properly applied the statutory NOC description to the Applicant's case. In my opinion, this is a question of mixed fact and law. Muldoon J. discussed this issue in the case of Lu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1907 (T.D.), at paragraph 20:
The need to use a definition or meaning signals that the decision no longer concerns merely a question of fact but concerns the application of facts to statutory law. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, Iacobucci J. wrote:
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.
[25] Even if I apply the less deferential standard of reasonableness simpliciter in this case I am of the view that the Court should not interfere with the Decision.
Merits:
[26] The crux of the Applicant's argument is that the Visa Officer erred in awarding him only 2 points for experience and that the Visa Officer was too restrictive in the way he calculated the amount of time the Applicant spent performing the main duties set out in the relevant NOC description.
[27] The Visa Officer determined that the Applicant had performed the main duties of an Agricultural Consultant 1.5 days a week (i.e. three half-days per week) for 3.5 years. This amounted to 273 working days, which was equivalent to one full-time year of work. Moreover, as the Visa Officer declares in his affidavit, the Applicant confirmed that the only time he spent performing the main duties of an Agricultural Consultant was during site visits. The CAIPS notes show that the Applicant understood and agreed with the Visa Officer's explanation of how this assessment was done.
[28] The Applicant now feels that he should not have conceded so much to the Visa Officer at the interview and that, based upon the points made in his employer's letter of January 10, 2001, it could be argued that he had worked more time at the main duties of an Agricultural Consultant.
[29] However, the Decision and the CAIPS notes make it clear that these issues were canvassed fully with the Applicant and that he conceded that it was only on site visits that he performed fully as an Agricultural Consultant. Moreover, the CAIPS notes make clear that the Visa Officer did canvass and consider the other duties raised in the employer's letter.
[30] This being the case, it was not unreasonable for the Visa Officer to come to the conclusions he did on the number of units to be awarded for experience. It may be that, in retrospect (and particularly when the Applicant received a total of 69 points out of 70 required) the Applicant feels he could have made a better argument for additional experience. But this does not make the Visa Officer's decision reviewable. There is no evidence that the Visa Officer ignored relevant evidence or was too restrictive in his approach to the NOC description or that he unduly fettered his discretion.
[31] During the interview, the Visa Officer delved into the Applicant's experience and determined that the only time the Applicant performed the main duties set out in the NOC was during site visits. This conclusion was reasonably open to him. The Visa Officer inquired into the main duties other than site work but concluded, based on the information provided by the Applicant, that the Applicant had not performed those main duties.
[32] As regards the duty of fairness, the Visa Officer told the Applicant what his concerns were and provided him with an opportunity to address those concerns. As the CAIPS notes show, there was discussion about those concerns with the Applicant:
explained the basis of assessment to PI. He understands and agrees. Am awarding 02 units for 01 year of experience .... Concerns put to applicant with respect to experience in his intended occ in Canada. Based on Applicants responses and info on file, I am satisfied that applicant has one years exp performing the main duties relating to this occupation. Applicant responded that he should be given more credit as the number of working days in Sri Lanka are less than in Canada. I am satisfied that the calculation of 273 days is reflective of 1 years work exp
CAIPS notes, p. 6-7
[33] The Visa Officer confirms in his affidavit that the CAIPS notes accurately reflect his recollection of the events and considerations related to the Decision and that the unit calculation was reviewed with the Applicant, whose response was that he should be given more credit because there are fewer working days in Sri Lanka.
[34] It is clear to me that the Visa Officer raised his concerns and explained the basis of his assessment to the Applicant. The Applicant indicated that he understood and agreed. The only argument the Applicant raised during the interview was that he should be given more credit because there are fewer working days in Sri Lanka than in Canada. The Visa Officer considered this but concluded that his assessment reflected one year of experience. This conclusion was reasonably open to the Visa Officer.
[35] It was not incumbent upon the Visa Officer to allow the Applicant's counsel to respond to the Visa Officer's concerns, particularly when there is no evidence on the record that such a request was made by the Applicant. In this case, the Applicant was provided with an opportunity to respond but his answer did not ultimately satisfy the Visa Officer. To suggest that the Visa Officer must then allow the Applicant sufficient time to consult with his counsel, when such consultation is not even requested, would place an onus on the Visa Officer that has not hitherto been recognized by this Court.
[36] As Rothstein J. pointed out in Dhillon v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 574 (T.D.):
3. ... A visa officer may offer assistance, counselling or advice or obtain clarification. However, there is no obligation that is imposed upon visa officers by law to do so. There was no duty on the visa officer to give the applicant a further opportunity to clarify or explain the evidence that had been submitted.
4. I conclude that the visa officer did not err in not giving the applicant an opportunity for further clarification. The judicial review must be dismissed.
[37] For these reasons, I conclude that the Visa Officer did not breach the duty of fairness in this case by reaching the Decision before the Applicant's counsel had provided a response to the concerns raised at the interview.
ORDER
THIS COURT ORDERS that
1. The Application is dismissed.
2. There are no questions for certification.
"James Russell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1784-02
STYLE OF CAUSE: Thushara Dhamendra Madurasinghe
-and-
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Monday, October 27, 2003
REASONS FOR [ORDER or JUDGMENT] : Russell, J.
DATED: December 11, 2003
APPEARANCES:
Michael Korman
FOR APPLICANT
Angela Marinos
FOR RESPONDENT
SOLICITORS OF RECORD:
Otis & Korman
Barristers and Solicitors
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT