Date: 20020405
Docket: IMM-1958-01
Neutral citation: 2002 FCT 382
BETWEEN:
ANTONIO TORIO CRISOLOGO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
INTRODUCTION
[1] Mr. Antonio Torio Crisologo ("Applicant") seeks judicial review of a decision of Mr. Rodney J. MeGill ("Visa Officer") made February 2, 2001. In this decision, the Visa Officer refused the Applicant's application for permanent residence in Canada.
FACTS
[2] The Applicant is a citizen of the Philippines. He is married and the father of two children, and lives with his immediate family in Quezon, Phillippines.
[3] In March 1998, the Applicant submitted an application for permanent residence in Canada, under the independent category. His application was submitted to the Canadian Embassy in Manila. He requested that he be assessed as an "Adverting/Marketing Consultant", National Occupational Classification ("NOC") 1122.2 ("NOC 1122.2").
[4] The Applicant had obtained a Bachelor's degree of fine arts, majoring in advertising, from the University of Santo Tomas in Manila in March 1977. His employment experience was in the advertising industry, primarily on the artistic side, and included work as a junior artist, visualizer and line specialist, senior art director and consultant.
[5] The Applicant attended at the Canadian Embassy in Manila for an interview on February 28, 2001. According to his affidavit filed in support of this application, the Visa Officer did not question him about specific courses he followed as part of his university study.
[6] According to the affidavit filed by the Visa Officer, that officer had reviewed in detail the transcripts of the Applicant's file, including university transcripts. The Visa Officer concluded that the courses followed by the Applicant did not meet the employment requirements of NOC 1122.2 because they did not constitute a bachelor's degree or a college diploma in business administration or commerce.
[7] The Visa Officer informed the Applicant that he had applied in a category for which he did not meet the employment requirements provided for in the NOC and that his application could not be approved against an assessment as a Marketing/Advertising Consultant. Furthermore, the Visa Officer advised the Applicant that he could not meet the employment or knowledge requirements of the Canadian advertising and marketing industry.
[8] The Visa Officer then assessed the Applicant as an art director, NOC 5421. However, the Visa Officer informed the Applicant that his application could not be approved because he received an assessment of less than 70 units of assessment.
[9] A refusal letter dated February 28, 2001 was sent to the Applicant, following his interview. The relevant portion of this letter reads:
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I assessed you on the basis of each of the factors listed below and awarded you the number of units of assessment indicated opposite each factor. You were assessed in the occupation of Art Director with reference to the National Occupational Classification (NOC) 5241, which sets out the applicable employment requirements for Canada and the main duties for each occupation. |
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Age Occupational Factor Education and Training Factor Experience Arranged Employment Demographic Factor Education English Relative Bonus Personal Suitability 05 Total |
10 01 07 04 00 08 15 09 05 64 |
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... You were also assessed as Marketing/Advertising Consultant, NOC 1122. Your application could not be approved on this basis because I am not satisfied that you meet the employment requirements as described in the NOC. |
APPLICANT'S SUBMISSIONS
[10] The Applicant argues that he was entitled to a formal assessment in the occupation he identified as his intended occupation in Canada and that the formal assessment must be set out in the refusal letter. In this regard, the Applicant relies on Uy v. Canada (Minister of Citizenship and Immigration), [1991] 2 F.C. 201; Issaeva v. Canada (Minister of Citizenship and Immigration) (1996), 124 F.T.R. 178; Birioulin v. Canada (Minister of Citizenship and Immigration) (1999), 46 Imm. L.R. (2d) 178.
[11] Second, the Applicant submits that the Visa Officer erred in law because he failed to consider his education, training and experience in its entirety, to determine whether he was employable in his intended occupation despite the fact that he did not have the "usual" educational requirements for this occupation, according to the NOC. Here the Applicant relies on Karathanos v. Canada (Minister of Citizenship and Immigration) (1999), 176 F.T.R. 296 (F.C.T.D.).
[12] Next, the Applicant argues that the Visa Officer erred in concluding that his experience did not fall within the definition of Advertising/Marketing Consultant, NOC 1122.2, because his experience related mainly to the artistic component of the advertising industry, rather than to the strategic side of that business. The Applicant says that by adopting this narrow interpretation, the Visa Officer had imposed an additional requirement into the NOC 1122.2 definition, thereby committing an error in law.
[13] Finally, the Applicant argues that the Visa Officer erred in law in the manner he conducted the assessment pursuant to Regulation 11(3)of the Immigration Regulations, 1978, SOR/78-172, as amended. Although the Visa Officer did consider whether he should exercise his discretion under this Regulation, the Applicant argues that since he did not complete a point calculation under NOC 1122.2, the Visa Officer could not determine whether there were good reasons why the units of assessment awarded for that occupation did not reflect the chances of the Applicant and his dependents becoming successfully established in Canada.
RESPONDENT'S SUBMISSIONS
[14] The Respondent relies primarily upon the standard of review set out in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at pages 7 - 8, concerning the degree of deference due to the discretionary decision made by a statutory decision-maker.
[15] The Respondent argues that where a statutory decision-maker has exercised that discretion in good faith, pursuant to any applicable principles of natural justice and in the absence of reliance on extraneous or irrelevant matters, the decision should stand.
[16] The Respondent argues that the Visa Officer was correct in his assessment that the Applicant did not meet the qualification under NOC 1122.2 because he did not hold any of the degrees or certifications referred to in the definition for that occupation.
[17] The Respondent further submits that the Visa Officer was not required to conduct a formal points assessment for an occupation which the Applicant was not qualified and in this regard relies on Lim v. Canada (Minister of Employment and Immigration) (1991), 121 N.R. 241 (F.C.T.D.), Goussev v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 140 (F.C.T.D) and Jain v. Canada (Minister of Citizenship and Immigration) (June 21, 2000), IMM-4675-99, [2000] F.C.J. No. 977 (QL) F.C.T.D.
[18] The Respondent says that the case of Uy v. Canada (Minister of Citizenship and Immigration), supra, can be distinguished from the present case. According to the Respondent, in Uy, the visa officer simply refused to assess the applicant at all in his stated intended occupation. That did not occur here.
[19] The Respondent also submits the Visa Officer was correct in his interpretation of the occupational definition of NOC 1122.2 and that he did not introduce any additional requirements into this definition.
[20] The Respondent argues that the Visa Officer properly exercised his discretion pursuant to Regulation 11(3) when he declined to grant positive discretion to the Applicant. The Respondent says that the factors to be taken into account under Regulation 11(3) relate to an applicant generally, not to a specific occupation. As the Visa Officer properly assessed the factors in his exercise of his discretion, the decision should stand.
ISSUES
[21] The following issues arise from this application:
(1) Did the Visa Officer erred in law by failing to formally assess the Applicant as an Advertising/Marketing Consultant, NOC 1122.2?
(2) Did the Visa Officer properly determine that the Applicant did not meet the employment requirements under NOC 1122.2?
(3) Did the Visa Officer properly assess the Applicant pursuant to Regulation 11(3)?
ANALYSIS
[22] The standard of review for discretionary decision of a visa officer is that of deference. The test was stated in Maple Lodge Farms Ltd. v. Canada, supra, as follows:
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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. |
[23] This standard of review has not been significantly altered by the decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In Liu v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 251, the Court found that Baker does not significantly alter the standard of review for the discretionary decisions of visa officers in those cases where there are no compassionate and humanitarian factors and where the visa officer does not ignore values fundamental to Canadian society.
[24] The strongest argument advanced by the Applicant is that the Visa Officer erred in failing to formally assess him as an Advertising/Marketing Consultant, NOC 1122.2, as requested in the covering letter which accompanied his application for permanent residence. By "formal" assessment he means that his points allocation should have been itemized in the decision. Here, the Visa Officer did not set out a points allocation under NOC 1122.2 in his refusal letter or indeed in the CAIPS notes. Instead, the refusal letter reads:
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You were also assessed as Marketing/Advertising Consultant, NOC 1122. Your application could not be approved on this basis because I am not satisfied that you meet the employment requirements as described in the NOC. |
[25] This passage suggests that the Visa Officer did indeed consider the Applicant in the designated category. However, it also appears that the Visa Officer decided that the Applicant did not qualify for the named category because he lacked the usual educational requirements specified for that occupation. The NOC provides the following under the heading "Employment Requirements":
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Employment Requirements Education/Training 6, 7, 8 · A bachelor's degree or college diploma in business administration or commerce is usually required. · A graduate degree in business administration may be required. |
[26] It appears that the Visa Officer decided that since the Applicant did not possess one or more of the educational requirements, he did not qualify for the occupation of Marketing/Advertising Consultant and that no formal assessment in this occupation was required.
[27] The Applicant relies on the decision in Uy, supra, in support of his argument that a formal assessment, including the award of points for the identified factors, must be carried out in respect of his intended occupation. That decision was followed by Rothstein J., as he then was, in Issaeva v. Canada (Minister of Citizenship and Immigration), supra, at pages 180 - 181 where he said as follows:
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An assessment is not an informal or preliminary determination by a visa officer. The terms "assess" or "assessment" mean the process of applying to the prospective immigrant the factors listed in column I of Schedule I of the Regulations. That this was not done with respect to the applicant's stated occupation of "general economist" is confirmed by the decision of the visa officer which states that the applicant was assessed only with respect to the occupations of "manager administration" and "financial manager"". |
[28] This reasoning was followed and applied in Birioulin v. Canada (Minister of Citizenship and Immigration) (1999), supra.
[29] However, the Respondent relies on other jurisprudence to support her argument that once a visa officer has decided that a person is not qualified to meet the requirements of an identified occupation, it is unnecessary to complete an assessment. In Goussev v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 140 (Fed. T.D.), Reed J. commented on these authorities and said:
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[14] Counsel for the respondent referred me to the jurisprudence that has stated that an informal or preliminary assessment by a visa officer does not constitute an assessment of the applicant and that a visa officer has a duty to carry out an assessment of an applicant in the person"s intended occupation; see, for example Issaeva v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm.L.R. (2d) 91 (F.C.T.D.), and Birioulin v. The Minister of Citizenship and Immigration (IMM-812-98, February 16, 1999). I do not understand this jurisprudence to require a visa officer to continue an assessment in a given occupational category after it has become clear that the applicant cannot obtain the required number of points to be granted landing. For example, if there is a requirement that at least one point be awarded under a given factor, and the visa officer determines that the particular individual will be awarded zero under that factor, the visa officer is not required to continue a pointless exercise of evaluating the other factors. An assessment has been done. |
[30] In my opinion, Goussev, supra, does not support the Respondent's argument that a visa officer is not obliged to conduct a points assessment in the first place. That case says if it is clear that an assessment for a specific occupation will be unsuccessful, there is no obligation to continue. In the present case, it appears that an assessment in the intended occupation was not conducted.
[31] However, it is clear that the Visa Officer based his decision not to conduct an assessment on his determination that the Applicant lacked the employment requirements for the position. He concluded that since the Applicant held no degree or certification in the fields of business administration or commerce, that he lacked the requisite educational background. In my opinion, this interpretation is erroneous because it strains the language in the NOC definition. That definition refers to this business degree as being "usually" required. That language suggests an element of flexibility which was ignored by the Visa Officer.
[32] In Karathanos v. Canada (Minister of Citizenship and Immigration), supra, Sharlow J., as she then was, adopted the comments of Reed J. in Hara v. Canada (Minister of Citizenship and Immigration) (1999), 2 Imm. L.R. (3d) 316 (Fed. T.D.) at paragraph 23, page 112 as follows:
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[23] This memorandum was also referred to in Hara v. Minister of Citizenship and Immigration (26 August 1999), IMM-6307-98. I respectfully adopt the comments of Reed J. from paragraph 6 of the decision in that case: ... it may be an error to state that "is usually required" means that the educational requirement must be met, except where there are significant and substantial factors that persuade the visa officer that the occupational requirements can be overcome. That may be too rigid an interpretation. Nevertheless, there must be some persuasive reason for thinking that the applicant will be able to hold employment in the intended occupation despite the fact that the "usual" educational qualifications are not present. |
[33] In my opinion, the Visa Officer erred in his consideration of the Applicant's qualification for the intended occupation. He relied on this error to deny the Applicant an assessment in accordance with the Immigration Regulations, 1978, SOR/78-172, as amended, Regulation 8, as per Uy, supra, and Issaeva, supra. In view of these errors, I conclude that this application should be allowed and the matter remitted to a different visa officer for determination.
[34] While the disposition of this application does not turn on the Applicant's submissions concerning the exercise of discretion pursuant to section 11(3) of the Regulations, I will comment briefly on those submissions.
[35] In my opinion, the Visa Officer properly exercised his discretion here since the factors to be taken into consideration relate generally to a prospective immigrant, and not to a specific occupation.
[36] Counsel advised that there is no question for certification.
ORDER
[37] The application is allowed and the matter remitted to a different visa officer for determination.
(Sgd.) "Elizabeth Heneghan" J.F.C.C.
Vancouver, British Columbia
April 5, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1958-01
STYLE OF CAUSE: Antonio Torio Crisologo v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 2, 2002
REASONS FOR ORDER AND ORDER OF THE COURT BY: Heneghan J.
DATED: April 5, 2002
APPEARANCES:
Peter A. Chapman FOR APPLICANT
Pauline Anthoine FOR RESPONDENT
SOLICITORS OF RECORD:
Chapman & Company Law Corporation FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia