Date: 20000518
Docket: IMM-5851-99
BETWEEN:
GAKAR Ram, Management Consultant, domiciled and
Residing at S-248 Greater Kailash Part-One,
New Delhi, India;
Applicant
And
The Minister of Citizenship and Immigration,
C/O Department of Justice, Guy-Favreau Complex,
200 René-Lévesque West, East Tower,
5th Floor, Montreal, Quebec, H2Z 1X4
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] The applicant Ram Gakar challenges by way of judicial review the decision, dated October 28, 1999, made by J. Ng, Designated Immigration Officer, Canadian Consulate General, Hong Kong, wherein she denied the applicant"s application for permanent residence in Canada.
FACTS
[2] The applicant filed an application for permanent residence in Canada in August 1998 under the independent category. He submitted his application to the Canadian Consulate General in Hong Kong. The applicant requested in his application that he be considered under the occupations of Management Consultant and Financial Controller.
[3] The applicant was advised by letter, dated September 24, 1998, that he was to attend a selection interview at the Canadian Consulate in Hong Kong sometime within the next ten months. On July 2, 1999, the applicant received another letter which informed him that an interview was scheduled for September 21, 1999, approximately two months later than what was promised in the letter of September 24, 1998.
[4] In his application for permanent residence, the applicant indicated that he had earned a Bachelor of Commerce degree in 1985, a Master of Arts degree in 1988, a Master of Commerce degree in 1990, and a Master of Business Administration in 1992. The first three degrees were from Osmania University, while the M.B.A. was from Madras University (applicant"s Application Record, applicant"s affidavit, Exhibit A-1, page13).
[5] During the selection interview, the visa officer questioned the applicant about his education background. The applicant"s certificate and transcripts indicated that he was an "external" student while completing his Bachelor studies. The visa officer was not satisfied that the applicant had been engaged in full-time studies for this first degree. At the conclusion of the interview, the visa officer directed the applicant to provide proof that his Bachelor studies at Osmania University in New Delhi, India were full-time. The visa officer gave the applicant 30 days in which to furnish the proof, and provided him with a letter to this effect at the end of the interview. It should be noted that the visa officer misconstrued the applicant"s degree as a Bachelor of Arts, instead of a Bachelor of Commerce degree which is a possible indication that the visa officer misunderstood the applicant and what he was saying with regards to his education.
[6] On October 12, 1999, approximately 9 days before the 30 day deadline, the applicant"s immigration consultant, at the direction of the applicant, faxed a letter to the visa officer indicating that the applicant was unable to gather the necessary documents within the 30 day period. The applicant requested an additional 30 days in which to comply with her requirements.
[7] On October 15, 1999, the visa officer, by letter, refused to extend the period.
[8] On November 2, 1999, the applicant submitted the documentation requested by the visa officer, albeit outside the time frame which she established and which documents the visa officer did not consider.
[9] On November 8, 1999, the applicant"s immigration consultant received a letter, dated October 28, 1999, in which the visa officer denied the applicant"s application for permanent residence and which the applicant now seeks to have set aside.
Visa Officer"s Decision
[10] In her letter of refusal, the visa officer indicated to the applicant that she assessed him in the occupation of Management Consultant (NOC 1122.1). She awarded him 68 units of assessment, which falls short of the required minimum of 70 units, in the following manner:
| Age Occupational Demand Education/Training Factor Experience Arranged Employment Demographic Factor Education English
Personal Suitability Total |
10 03 15 06 00 08 13 08 00 05 68 |
[11] The visa officer also assessed the applicant under the occupation of Financial Manager (NOC 0111). She indicated, however, that based on the applicant"s description of his education and experience, she concluded that he did not meet the employment requirements, pursuant to the NOC, to undertake that occupation.
ISSUES
[12] The issues to be decided by the Court are wether the visa officer breached any of her duties in her assessment of the applicant"s application, and whether the visa officer committed an error when she awarded him 13 points for the education factor.
APPLICANT"S POSITION
[13] The applicant submits that the visa officer breached several duties in her assessment of the applicant"s qualifications and that these breaches had an impact on her ultimate decision.
[14] First, the applicant contends that the visa officer breached her duty to assess the applicant under all of the occupations requested by him in his application for permanent residence. In that application, he had indicated his desire to be assessed as both a Management Consultant and a Financial Controller. However, this latter occupation was not considered by the visa officer; instead, she assessed the applicant under the alternative occupation of Financial Manager.
[15] Second, the applicant submits that the visa officer did not properly assess the applicant"s qualifications by refusing to fully consider the explanations provided by the applicant at the interview regarding his Bachelor of Commerce degree and his status as an "external" student.
[16] Third, the applicant argues that the visa officer breached the duty of fairness by refusing to extend the 30 day delay which she had given to the applicant in order to allow him to furnish her with proof that his Bachelor studies had been undertaken on a full-time basis. The applicant contends that the visa officer"s refusal to extend this period was unreasonable given that his application was made in Hong Kong, whereas his university studies"and therefore the documentary information relating to them"were completed in India.
[17] Fourth, the applicant submits that the visa officer breached her duty to fully consider the applicant"s submissions by ignoring the information he submitted to her some 13 days after the deadline.
[18] The applicant also submits that the visa officer erred in law in her interpretation of section 8, Schedule 1, factor 1(c)(ii), (d), and (e) of the Immigration Regulations, 78 SOR/78-172. The visa officer awarded the applicant 13 units under the education factor, pursuant to factor 1(c)(ii). That factor provides for 13 units where an applicant has completed a diploma or apprenticeship certificate program that requires completion of a secondary school diploma that may lead to entrance to university as a condition of admission.
[19] The applicant contends that the visa officer should have awarded him 16 units pursuant to factor 1(e). The applicant submits that factor 1(d), which applies to a first-level university degree that requires at least three years of full-time study, is not a prerequisite of factor 1(e), which applies to second or third-level university degrees. The applicant submits, therefore, that even though the visa officer did not consider his Bachelor degree as falling under factor 1(d), she should nonetheless have awarded him the 16 units mandated by factor 1(e) because of his three Masters degrees.
RESPONDENT"S POSITION
[20] The respondent submits that the visa officer did not err by not assessing the applicant in the position of Financial Controller. The visa officer"s CAIPS notes (respondent"s record, p. 9) indicate that at the interview the applicant asked the visa officer to assess him as a Financial Manager as he lacked a Certified General Accountant ("C.G.A.") diploma.
[21] The respondent submits that the visa officer did not err in awarding the applicant 13 units for the education factor. The information on which she based her decision did not satisfy her that the applicant"s Bachelor studies were full-time. The respondent contends that the onus was on the applicant to produce all relevant information pertaining to his application.
[22] With regard to the applicant"s claim that he is entitled to 16 points by virtue of his Masters" degrees, the respondent submits that since the applicant failed to satisfy the visa officer that he was entitled to 15 points pursuant to factor 1(d), the visa officer did not have to go further and consider whether he was entitled to more points under factor 1(e).
[23] The respondent contends that the visa officer was under no obligation to provide the applicant with any delay to submit additional documentation. The 30 day delay which she did grant him, the respondent submits, was more than reasonable in the circumstances and, indeed, was generous.
[24] Finally, the respondent submits that the visa officer did not commit an error by refusing to consider the documents which the applicant submitted beyond the 30 day deadline. Her decision had already been made on October 28, 1998, and a letter had been sent to the applicant.
ANALYSIS
[25] With regard to whether the visa officer erred in assessing the applicant as a Financial Manager, and not a Financial Controller, the visa officer"s CAIPS notes indicate that it was the applicant who requested this assessment. He could not be assessed as a Financial Controller as he did not have the necessary C.G.A. diploma.
[26] While it is true that a visa officer has a duty to assess an application with reference to all of the occupations for which the applicant indicates he or she is qualified and intends to pursue in Canada [see Saggu v. Canada (MCI) (1994), 87 F.T.R. 137 (F.C.T.D.)], it is clear in this case that the applicant was not qualified as a Financial Controller and therefore could not be assessed under that occupation.
[27] The applicant"s contention that the visa officer erred by not fully considering his explanations, given at the interview, regarding his status as an external student is equally without merit. The visa officer was not satisfied at the interview, for whatever reason, and directed the applicant to provide clarification, in essence, to disabuse her of her impression that he was not a full-time student.
[28] That being said, however, the visa officer"s decision not to extend the 30 day delay to allow the applicant to furnish proof of his full-time student status appears to be a breach of her duty of fairness. In Saggu v. Canada (MCI), Mr. Justice Muldoon stated,
| The onus is on the applicant to establish that he/she meets the selection criteria established by the regulations, and that admission to Canada would not be contrary to the Act and Regulations. See: Yu v. Canada (MEI) (1990), 11 Imm. L. R. (2d) 176, 36 F.T.R. 296 (F.C.T.D.), D"Souza v. Canada (MEI) (1990), 12 Imm. L. R. (2d) 268, 39 F.T.R. 1 (F.C.T.D.), and Hajariwala v. Canada (MEI) (1988), 6 Imm. L. R. (2d) 222, 34 Admin. L. R. 206, 23 F.T.R. 241, [1989] 2 F.C. 79 (F.C.T.D.). |
| Where the visa officer has an impression of deficiency in the proof being offered by an applicant, there may be a duty to give the applicant some opportunity to disabuse the visa officer of that crucial impression. The duty of fairness owed to the applicant may require that such an opportunity be given: Fong v. Canada (MEI) (1990), 11 Imm. L. R. (2d) 205, 35 F.T.R. 305, [1990] 3 F.C. 705 (F.C.T.D.) and Dhaliwal v. Canada (MEI) (1992), 16 Imm. L. R. (2d) 212 (F.C.T.D.). |
[29] The applicant had submitted his application for permanent residence to the Canadian Consulate in Hong Kong, but the university studies in question had spanned the years 1982 to 1985 in New Delhi, India. Therefore, it is conceivable, and not unreasonable, that it would take him more than 30 days in which to gather the information and proof requested by the visa officer. As the applicant was attempting to comply with the visa officer"s direction, as opposed to attempting to delay and frustrate the process, the visa officer ought to have extended the deadline.
[30] The application for judicial review is allowed. In the case of Hajariwala v. Canada [1989] 2 F.C. 79 at 83 and 84, Associate Chief Justice Jerome, as he then was, states:
| As a final general statement, it is useful to underline the limitations of review under section 18 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10]. This is not an appellate review. To succeed the applicant must do more than establish the possibility that I might have reached a different conclusion than the visa officer in this assessment. There must be either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative assessment. |
(Emphasis added)
[31] I am satisfied that in the present case there was a breach of the duty of fairness by the visa officer, Ms. Ng, when she denied the applicant an additional delay of 30 days to file the documents requested to satisfy her of his education.
[32] A visa officer must be flexible and understanding when interviewing an applicant. The visa officer gives no valid reason for having refused the present applicant the extension he requested. The applicant was given 30 days to file documentary evidence that he was a full time student when he obtained a Bachelor"s degree in Commerce from Osmania University. According to the visa officer"s affidavit, she found it unusual that full-time studies in one year would only contain three major subjects and two language subjects. I can find no sound basis for this conclusion.
[33] Within the 30 day delay accorded the applicant, a letter dated October 12, 1999 was sent to the visa officer and received by her on October 15, 1999 requesting an additional 30 days to submit the information required to show that the applicant was a "full time student".
[34] As the visa officer states in paragraph 17 of her affidavit:
| On the same day, a reply was sent to the Applicant"s immigration consultant advising that a further extension was not granted to the Applicant since a reasonable time frame had already been given to him to provide additional information. |
[35] As a result, the applicant was denied the additional points for his education which meant he only received 68 of the required 70 points or 13 points for the educational factor.
[36] I could well understand a refusal for an extension of time if the request was for 90 or 180 days. I cannot understand and do not understand a refusal for a 30 day extension of time when it is the first request for an extension of time and it has no adverse effect on the respondent.
[37] This is particularly so when the respondent, in setting up the applicant"s interview took an extra two months from that which had been promised.
[38] In addition, the visa officer, when giving the applicant 30 days to get the required document spoke of a Bachelor of Arts degree when the applicant never claimed to have such a degree.
[39] As I have said, and I repeat, a visa officer must be understanding and must be flexible in deciding on a request for an extension of time. To simply say no is a breach of natural justice.
[40] Therefore, the application for judicial review is allowed. The matter is returned for a new hearing before a different visa officer. The applicant is permitted to file additional documents, especially those that he had previously wished to file relating to his education.
[41] The issue with regard to the applicant"s education is that the visa officer was not satisfied that the applicant completed his Bachelor"s degree in accordance with section 8 Schedule 1 which states (1 Education (d) "where a first-level university degree that requires at least three years of full-time study has been completed, fifteen units" (emphasis mine).
[42] Now the supposed "very serious" issue for the visa officer was not that the applicant does or does not have a Bachelor"s degree, but that he may not have obtained the degree as a full-time student.
[43] There is no argument that the applicant has a Master of Arts degree as well as a Master of Commerce degree and a Master of Business Administration degree from what I assume are recognized universities (Osmania and Madras).
[44] I ask myself why is it important whether the applicant took 3 years to obtain his Bachelor degree or took 3 or more years as a part time student to obtain this degree? The individual has his Bachelor degree, he has, in the present case, three recognized Masters degrees, surely he is entitled to the 16 units allowed in Schedule 1 under the heading of education.
[45] I am satisfied that it may be more difficult for a person working and going to school to obtain the Bachelor"s degree than a "full-time" student. Surely such a person shows a determination to get things done.
[46] Section 8 Section 1 Criteria (1)(d) means, as the respondent contends, that an applicant can only receive 15 points for education if the applicant went to school full-time and for at least three years with no points for the same degree if taken part time, then this section is ludicrous.
[47] In any event, I do not have to and do not rule on this section as I have allowed the present application on the basis of a denial of natural justice or a breach of fairness.
[48] Neither party has submitted a question to be certified as I have allowed the present application on a denial of natural justice or a breach of fairness by the visa officer.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
May 18, 2000