Date: 19981022
Docket: IMM-1702-97
BETWEEN:
SYED HAMID HUSSAIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act [R.S.C. 1985, c. F-7] [as amended] in which the applicant seeks an order quashing the decision of a visa officer, dated March 16, 1997, in which the visa officer refused to issue a visa to the applicant. The applicant also requests that the same visa officer be ordered to consider and process the visa application in accordance with law, and with the direction of this Court that the applicant has satisfied the "lead statement" in 4111-111 of the Canadian Classification and Dictionary of Occupations (hereinafter CCDO).
A. The facts
[2] The applicant, Mr. Hussain, a citizen of India, applied to the Canadian Embassy in Cairo as an independent applicant for a permanent residence visa. He was interviewed on March 9, 1997 by a visa officer, Ms. Fahmy. The applicant was accompanied to the interview by his wife and their infant daughter. In his affidavit the applicant stated that the interview lasted for approximately 25 minutes. During this interview, the visa officer raised a number of topics, including the applicant"s employment experience, which has become critical to this case.
[3] On his visa application form, the applicant had identified "Executive Secretary" as his intended occupation in Canada. In his supporting documents, the applicant described his duties in his present employment, and included a corroborating letter from his employer, a substantial company in Saudi Arabia, that manufactures construction materials. In that letter, the officer to whom the applicant reported, the General Manager of Purchasing, stated that the applicant had been with the company since 1978, and since 1990 had served as his executive secretary, having been promoted through the ranks from the positions of secretary and staff assistant.
[4] The letter set out the duties performed by the applicant as executive secretary, the three most relevant of which for present purposes are:
| Provides administration and secretarial support services for G[eneral] M[anager] Purchasing in monitoring and controlling all activities of Purchasing Department. |
| Compiles statistics and data relevant to the activities of the Department and prepares periodic reports depicting the overall status of purchasing activities for higher management review. |
| Assists G[eneral] M[anager] Purchasing in making annual appraisal of employees to evaluate their performance and process their service increase, promotion etc. as per their ratings. |
[5] At the interview the visa officer asked the applicant about the precise nature of his employment duties with a view to determining whether they amounted to the experience necessary to qualify a person to be an Executive Secretary as defined in category 4111-111 of the CCDO. In particular, the visa officer was intent on determining whether the applicant qualified as an Executive Secretary, rather than as a Secretary (CCDO 4111-110). Not surprisingly, there is considerable overlap in the descriptions of these two closely related occupations: the occupation of Secretary is included in that of Executive Secretary.
[6] The visa officer"s questions were directed principally at two aspects of the applicant"s current employment duties. First, the visa officer inquired whether the applicant signed letters and other documents when the General Manager Purchasing was absent. In the notes that the visa officer typed into the CAIPS during the interview, the visa officer recorded the applicant as saying that he "does not sign anything himself." When asked in cross-examination whether she enquired if the applicant signed on behalf of the General Manager Purchasing, rather than in his own name, the visa officer responded that she did not ask that question. The visa officer also stated, however, that the applicant told her that he did not sign anything, and that whatever needed signing would wait until the General Manager Purchasing returned.
[7] The visa officer"s questions were also directed at the reports that the applicant wrote every three months concerning the purchasing requirements of the engineering departments. The applicant replied that he was given the data by the various departments, which he then compiled into a single report for review and approval by his superiors.
[8] In her CAIPS notes and affidavit, the visa officer stated that the applicant believed that he was an executive secretary because he reported to the "director general", rather than to a section head like other secretaries.
[9] The visa officer also stated in her cross-examination that it is her practice to ask applicants at the end of the interview whether they wish to add anything, or to raise other issues that have not already been discussed in the interview, thus giving them an opportunity to provide additional information or to offer an explanation in support of their application.
B. The visa officer"s decision
[10] In a letter dated March 16, 1997, Ms. Fahmy informed the applicant that "In keeping with your qualifications and activities, you were assessed according to the requirements for secretary (CCDO 4111-110)," and that since she had awarded him only 67 units of assessment, three units short of the 70 units normally required for the issue of a visa to an independent applicant, the applicant"s application was refused.
[11] In her CAIPS notes the visa officer had also recorded her view that she was "not satisfied that he would find employment as Executive Secretary in Canada in view of the fact that ex[perience] is limited to that particular business."
C. Statutory framework
[12] Subsection 6(1) of the Immigration Act [R.S.C. 1985, c. I-2] [as amended] [hereinafter Immigration Act or the Act] sets out the general principle that an immigrant 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." |
[13] The Immigration Regulations, 1978 [SOR/78-172] [as amended] [hereinafter Immigration Regulations or Regulations] contain the legal framework within which a potential immigrant"s ability to become successfully established in Canada is determined. Subsection 8(1) of the Regulations provides that visa officers are to assess an immigrant"s ability to become successfully established in Canada, "(a) ... on the basis of each of the factors listed in column I of Schedule I".
[14] Subparagraph 9(1)(b)(i) of the Regulations provides that a visa officer may issue a visa to an immigrant in the category of the applicant if the applicant is awarded at least 70 units of assessment. However, this is qualified by subsection 11(3) of the Regulations, which confers discretion on a visa officer to issue a visa to a person who has not been awarded the normally required number of units of assessment, or to refuse a visa to a person who has attained the requisite units of assessment, if, in the officer"s opinion, the number of units of assessment awarded does not accurately reflect the applicant"s chance of successfully becoming established in Canada.
[15] The items in Schedule I of the Regulations on which applicants are assessed that are relevant to this case are items 4 and 9. Item 4, "[o]ccupational [f]actor," provides, inter alia , that units of assessment are awarded on the basis of employment opportunities available in Canada in the occupation in which the applicant has performed a substantial number of the main duties as set out in the National Occupation Classifications (hereinafter NOC), including the essential ones. Item 9, "[p]ersonal [s]uitability", requires the visa officer to assess applicants
| "... on the basis of an interview with the person to reflect the personal suitability of the person and his dependents to become successfully established in Canada based on the person"s adaptability, motivation, |
initiative, resourcefulness and other similar qualities."
[16] At the time when the visa application in the case at bar was processed, a person"s qualification for a given occupation was determined by reference to the CCDO , rather than the NOC. While the NOC has since superseded the CCDO, the applicable principles remain unchanged.
| [17] The CCDO descriptions most relevant to this application are as follows: |
| 4111-111 Executive Secretary (clerical) |
| "Performs secretarial and administrative duties for office executive: Performs duties similar to those of 4111-110 SECRETARY (clerical) utilizing secretarial experience and knowledge of office administration and public relations. Arranges conferences and other meetings and researches and compiles information for employer. Acts on routine matters affecting day to day operations of organization, in employer"s absence. May perform other duties including supervising office workers." |
| 4111-110 Secretary (clerical) |
| "Schedules appointments, gives information to callers, takes dictation and relieves employer of clerical work and minor administrative and business details, performing any of the following duties: Reads and routes incoming mail. Locates and attaches appropriate file to correspondence to be answered by employer. Takes dictation in shorthand or on stenotype machine, and transcribes on typewriter from notes or voice recordings. Composes and types correspondence. Files correspondence and other records. Answers telephone and gives information to caller, or routes call to appropriate official, and places outgoing calls. Schedules appointments for employer and reminds him when they are due. Greets visitors, ascertains nature of business and types statistical reports. Records minutes of meetings. May keep confidential personnel records. May arrange travel schedules and reservations. May be designated according to type of work performed; for example, Appointments Secretary, Legal Secretary, Medical Secretary, Social Secretary." |
[18] There would seem to be three differences between these occupations that are relevant to the present case. First, the "lead statement" of CCDO 4111-111 states that an executive secretary performs "secretarial and administrative duties for office executive" [emphasis mine]. CCDO 4111-110, on the other hand, does not specify the person for whom secretarial services are performed and, in describing the nature of the work done by a secretary, refers to "clerical work and minor administrative and business details" [emphasis mine]. Second, as part of his or her duties, an executive secretary "researches and compiles information for [the] employer," whereas a secretary "types statistical reports." Third, an executive secretary "[a]cts on routine matters affecting day to day operations of organization, in employer"s absence." There is nothing analogous to this in the description of the duties of a secretary.
D. The Issues
[19] Counsel for the applicant, Mr. Rotenberg, attacked the visa officer"s decision on both substantive and procedural grounds. He argued that the visa officer had erred in law in her interpretation and application to the facts of this case of the description of an Executive Secretary in CCDO , 4111-111. Counsel for the applicant also argued that the visa officer had erred in law by taking into consideration under item 4 the limited nature of the applicant"s experience, and the negative effect that this would have on his ability to find employment in Canada as an Executive Secretary.
[20] With respect to procedural grounds, Mr. Rotenberg submitted that the visa officer had breached the duty of fairness which required her to conduct a careful assessment of the application, and to disclose to the applicant concerns that she had about the relevance of the applicant"s experience to the occupation of executive secretary, in order that the applicant could respond.
[21] The case at bar then raises three issues.
| Issue 1: Did the visa officer err in law by misinterpreting the definition of "Executive Secretary" in CCDO 4111-111, or by misapplying it to the facts of this case? |
| Issue 2: Did the visa officer err in law by considering under item 4 ("occupational factor") of Schedule 1 of the Regulations the fact that the applicant had worked only for one employer? |
| Issue 3: Did the visa officer breach the duty of fairness in failing to disclose to the applicant her reservations about the relevance of his experience, so that he could respond to them, and in failing to ask him further questions about the present nature of his duties? |
[22] One other point needs to be mentioned here although it is not a "live" issue in the this case. The applicant had identified "Executive Secretary" as his intended occupation in Canada; however, the visa officer did not formally assess the applicant in that occupation, but rather in the included occupation of secretary. This practice would appear to run contrary to the legal duty of visa officers to assess applicants in the occupation that they specify: Uy v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 172 (F.C.A.).
[23] Counsel for the respondent, Ms. Hendriks, stated that it is the practice of visa officers not to make a formal assessment of an applicant in an occupation for which she or he is obviously not qualified, and thus would be refused a visa. Instead, applicants are assessed in "included" occupations for which they are qualified, and might be awarded enough units of assessment to be issued a visa.
[24] Mr. Rotenberg did not contend that this practice, which the visa officer followed in this case, rendered the refusal erroneous in law. However, it might be helpful to applicants if visa officers advise them of this practice. According to counsel for the applicant in this case, for example, Mr. Hussain was quite taken aback when he discovered that he had only been assessed in the occupation of Secretary. In a written response, dated April 8th, 1997, to a faxed letter from the applicant"s immigration consultant requesting that the visa officer consider the applicant as an Executive Secretary and not as a Secretary, the visa officer stated that the applicant "was interviewed at this office and assessed as secretary based on information obtained and available to us at interview. He was notified of his refusal accordingly." The visa officer"s letter to the applicant of March, 16th, 1997 however was the first time the applicant received notification that he had been assessed only in the occupation of secretary.
E. Analysis
Issue 1: interpretation and application of CCDO 4111-111
[25] The applicant submits that the visa officer misinterpreted CCDO 4111-111 by failing to give particular weight to the "lead statement" of the description of an "Executive Secretary". This states that an "Executive Secretary" "performs secretarial and administrative duties for office executive." Mr. Rotenberg submitted that because the applicant worked for the General Manager Purchasing, he clearly falls within this brief description of the occupation, and that his employment experience therefore prima facie qualifies him for the occupation of Executive Secretary.
[26] In response, Ms. Hendriks, counsel for the respondent, submitted that the description of the occupation, including the duties typically performed by the person, should be read as a whole, and that no special weight should be attached to the "lead statement" which is intended to be no more than a brief overall description. Moreover, she argued, it would not be consistent with the function served by the CCDO in the selection of immigrants to Canada, if it were interpreted as enabling a person to qualify for an occupation largely by reference to the individual for whom the person worked, rather than to the nature of the duties actually performed.
[27] In my opinion, counsel for the respondent is correct in her submission that the description should be read as a whole, and that no particular weight should be given to the "lead statement." Although the occupational descriptions contained in the CCDO are made legally binding on visa officers, and on this Court, as a result of their referential incorporation into the statute by Schedule I of the Immigration Act, they should not be construed with the same meticulousness applicable to, say, a trust instrument. Rather, they should be approached broadly, bearing in mind they were not originally written as legal texts.
[28] Counsel for the applicant is on firmer ground, however, in submitting that the visa officer erred by attaching no weight to the fact that the applicant reported to the General Manager Purchasing because, "based on my local knowledge", she stated in her affidavit, this was probably more indicative of the applicant"s years of services with the company than of the degree of responsibility that he had.
[29] In the circumstances of this case, the visa officer"s "local knowledge" constitutes an extraneous factor that she relied upon in arriving at her determination. There was no other evidence before the visa officer upon which she could arrive at the determination that the applicant"s reporting to the General Manager was indicative of the applicant"s years of service with his employer, rather than his degree of responsibility. Moreover, the applicant was unaware that the visa officer was relying, in part, on this local knowledge in determining his application for permanent residence in Canada. Fairness required that the visa officer disclose this information to the applicant so that he had an opportunity to respond to it.
[30] Mr. Rotenburg also submitted that the visa officer erred by taking too narrow a view of the description to CCDO 4111-111 of an Executive Secretary as someone who, inter alia, "[a]cts on routine matters affecting [the] day to day operation of organization, in employer"s absence." The visa officer had regard only to whether the applicant had the authority to sign documents when the General Manager was away, and when the applicant told her that he did not, she apparently inferred from this alone that he did not act on routine matters in the absence of his employer. I agree that this was a legal error by the visa officer. Signing one"s own name to a document is surely only one indication of the authority to act on routine matters, and the visa officer ought not to have made it the sole basis for her conclusion.
Issue 2: the "limited nature of the applicant"s experience"
[31] Mr. Rotenburg also submitted that the visa officer"s statement in her CAIPS notes that she was "not satisfied he would find employment as exec[utive] sec[retary] in Canada in view of the fact that his experience is limited to that particular business" constitutes an error as it is an irrelevant consideration under items 3 or 4 (experience and occupational factors) and can only be taken into consideration under item 9 [personal suitability] under Schedule I of the Regulations.
[32] Mr. Rotenburg is correct in maintaining that, if the visa officer had considered under items 3 or 4 (experience and occupational factors) the fact that the applicant had worked for only one employer, or in only one type of business, the visa officer would have erred, because the "limited" nature of an applicant"s experience is simply not identified there as a relevant consideration. However, it would seem to me potentially relevant under item 9 (personal suitability), in that it may limit the applicant"s adaptability in the Canadian labour market. Since it is not clear under which item the visa officer considered it, I am not satisfied that she committed an error by having regard under Schedule I of the Regulations to the limited nature of the applicant"s experience.
[33] I would add, however, that the visa officer"s determination that the applicant"s position of executive secretary answerable to the General Manager of Purchasing was more likely the result of his years of service with his employer than of the degree of responsibility carried by the applicant, especially since the applicant had progressed through the ranks to reach his current position, borders on a clear preference for depth of experience over breadth. The court in Prajapati v. Canada (Minister of Employment and Immigration) [1995] F.C.J. No. 1463 (T.D.) stated, in somewhat similar circumstances, that such a finding would "seem unfortunate."
[34] Counsel for the respondent accepted the proposition that the duty of fairness applies to visa officers when considering visa applications, and that this duty requires officers to make such reasonable inquiries as will enable them to make a careful assessment of an application and, in some circumstances at least, to inform an applicant of negative views that they have formed of the application, so that the applicant may respond. The issue in this case in whether the visa officer met this minimal standard of procedural propriety imposed by the duty of fairness.
[35] In this context it is important to bear in mind the principal objectives of the administration of immigration control. The first is to facilitate the entry into Canada of persons who meet the requirements set out in the Immigration Act and Regulations. The second is to ensure that those who do not are excluded. Both objectives are of equal importance, and neither is likely to be achieved if visa officers do not adopt a procedure for determining visa applications that is calculated to produce accurate and thoughtful decisions. On the other hand, officers should not be burdened by procedural duties imposed by this Court that prevent them from processing applications in an expeditious and cost-effective manner.
[36] Since the difference between the descriptions in the CCDO of Executive Secretary and Secretary are so similar, the critical issues in this visa application concerned the aspects of the definitions that are different. Thus, in order to determine whether the applicant"s duties included "research", the visa officer asked the applicant questions that were designed to establish precisely what he did when performing that aspect of his duty which he described as "compiling statistical data relevant to the activity of the department and preparing periodical reports depicting the overall status of purchasing activities for review by higher management". The visa officer tried to determine from the applicant"s replies whether this involved the applicant in conducting "research", by which she meant adding his own analysis or thought, or finding out information for himself. She concluded that he merely compiled into a single report the information given to him by the different section heads, so that it could be read more easily by the company management, and that no "research" was therefore involved.
[37] In my view, the visa officer made sufficient inquiries to enable her to make a careful assessment and to determine that the applicant merely "compiled" information and did not conduct research. Nor did I think that she was required to disclose to the applicant her understanding of the word "research" as used in CCDO 4111-111, since she did not ascribe to it a meaning different from that which it has in ordinary usage. Disclosure and giving the applicant an opportunity to respond were not likely to enhance the quality of the visa officer"s decision.
[38] However, when the visa officer considered another of the differences in the occupational descriptions, namely the Executive Secretary"s acting on routine matters in the absence of the employer, her inquiries were much less thorough. First, she never asked the applicant whether he had the authority to sign the General Manager"s name or initials in his absence; she seems only to have asked whether the applicant signed his own name. More importantly, however, the visa officer did not explore more broadly with the applicant the nature of his responsibility for routine matters in the absence of the General Manager. Whether the applicant had the authority to sign his own name was not a sufficiently close surrogate for "acting on routine matters" that the visa officer did not need to inquire further. Signing practices, after all, vary within, and among, businesses and other organizations.
[39] The visa officer deposed in her affidavit that she did "voice her concerns" to the applicant. However, it is not clear from either the affidavit, or the CAIPS notes, what the precise nature of those concerns was, or whether they were meaningfully communicated to the applicant. The visa officer explained that she records in her CAIPS notes only applicants" responses to her questions, and not the questions that she asks. I am not convinced on the evidence before me that this "voic[ing] of concerns" was sufficient to give the applicant in this case a reasonable opportunity to clarify and expand on the nature of his duties in the absence of the General Manager.
[40] The fact that the applicant was not provided with this opportunity suggests that the visa officer failed to satisfy the duty of procedural fairness owed to the applicant. I conclude, therefore, that the visa officer"s failure to explore more fully the nature of the applicant"s responsibilities when the General Manager was away impaired her ability to make an informed decision, and thus resulted in a breach of the duty of fairness.
[41] Finally, the visa officer seems to have overlooked, or made no inquiries about, the applicant"s present duties in connection with the evaluation of the job performance of employees for whom the General Manager Purchasing is responsible. This aspect of the applicant"s present duties sounds as if the assistance rendered by the applicant may be significantly more than the secretarial or "minor administrative work" of a "Secretary", and more akin to an "administrative duty" performed for "an office executive" by an "Executive Secretary". In any event, it is a matter that clearly should have been explored by the visa officer with the applicant.
[42] I would also add that the visa officer"s practice of asking an applicant at the close of an interview whether he or she wishes to add anything is not sufficient to satisfy the duty to make reasonable inquiries that is imposed by the duty of fairness. This practice fails to advise an applicant of the concerns that a visa officer may have in such a way as to provide the applicant with a reasonable opportunity to disabuse the visa officer of his or her particular concerns with an application. Rothstein J. in Chen v. Canada (Minister of Employment & Immigration) (1993), 20 Imm. L.R. (2d) 290 (F.C.T.D.) wrote that
| "...when the visa Officer became concerned that the applicant might not qualify...she should have questioned him specifically on each of the criteria separately. For her to have simply expressed concern in a general way and then expected a meaningful response is, in my opinion, not consistent with the requirements of procedural fairness ." |
[emphasis mine]
[43] In the case at bar, the key issue was whether the applicant was able to qualify under the heading of Executive Secretary as opposed to Secretary. This determination is very fact-specific, and in this case clearly called for more than a general question to enable the visa officer to make an adequate assessment of the information that the applicant had provided. This kind of open-ended invitation at the end of an interview cannot make good the officer"s failure to have engaged more deeply with the material before her by asking questions, or by disclosing to the applicant the precise nature of her concerns with the application.
[44] In my view, the substantive and procedural errors committed by the visa officer are cumulatively sufficient to vitiate her refusal to issue a visa to the applicant, and her decision is therefore set aside. Mr. Rotenberg requested that, if I found in favour of the applicant, as I have, I should remit the matter to the same visa officer, Ms. Fahmy, with a finding of fact that the applicant has satisfied the "lead statement" of the definition of "Executive Secretary" at CCDO 4111-111. His argument was that visa officers have a collegial loyalty that leads them to tend to resent the quashing of decisions made by their colleagues, and that it would avoid unnecessary further refusals and applications for judicial review, if I remitted on the terms that he suggests.
[45] I am unable to accept this submission. As I have already indicated, whether a person satisfies a particular occupational classification should be determined by reading the description as a whole, and by considering the applicant"s occupational experience as a whole . Accordingly, it would not be helpful for me to pronounce that the applicant had satisfied certain elements of the description, and withdraw them from the visa officer"s determination. It is important to remember that Parliament has entrusted to visa officers, not the courts, the duty to determine visa applications, and this Court should not usurp that task. Moreover, there was no evidence before me to support Mr. Rotenberg"s suggestion that, because Ms. Fahmy"s refusal had been set aside, another visa officer was unlikely to discharge his or her professional duty to make a fair assessment of the application.
[46] In conclusion, I set aside the visa officer"s refusal to issue a visa to the applicant and remit the matter to another visa officer to be decided in accordance with law and the reasons for this order. Costs are awarded to the applicant.
OTTAWA, ONTARIO John M. Evans
October 22, 1998. J.F.C.C.