Date: 20020731
Docket: IMM-1340-01
Neutral citation: 2002 FCT 832
BETWEEN:
MD. ABUL KALAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These are my reasons for dismissing from the bench this application for judicial review, and for not certifying any question.
BACKGROUND
[2] Mr. Kalam is a resident of Bangladesh who applied for permanent residence in Canada in the independent skilled worker category. Mr. Kalam requested assessment in the intended occupations of Social Worker NOC 4152.0, Economic Development Officer NOC 4163.0, Social Policy Researcher NOC 4164.1, Social Survey Researcher NOC 4164.5, and International Aid and Development Program Officer NOC 4164.4.
THE DECISION
[3] The visa officer negatively assessed Mr. Kalam in the intended occupation of Social Worker because he did not meet the employment requirements in that Mr. Kalam did not possess a bachelor's degree in Social Work. The visa officer also negatively assessed Mr. Kalam in the intended occupation of Economic Development Officer because Mr. Kalam did not meet the employment requirements as he did not possess a bachelor's degree in economics, commerce, business administration, or public administration.
[4] With respect to the intended occupations of Social Policy Researcher and Social Survey Researcher, the visa officer found that Mr. Kalam did not accumulate the minimum units of assessment required pursuant to subparagraph 9(1)(b)(i) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations").
[5] Mr. Kalam was negatively assessed in the intended occupation of International Aid and Development Program Officer because he did not meet the employment requirements in that he did not have the required experience in planning or organizing foreign aid, international development policies and programs.
[6] Based on the visa officer's evaluation of Mr. Kalam's ability to speak English, and as a result of the officer's assessment of the results of tests which the visa officer administered during the course of the interview, the visa officer determined that Mr. Kalam read, spoke and wrote English "well". Accordingly, Mr. Kalam was awarded six units of assessment.
[7] With respect to personal suitability, the visa officer wrote in his CAIPS notes:
Suitability - said he has done some research in the employment area. Produced some printouts of his research. We reviewed some of these printouts. The first one was Toronto Humane Society. I asked him to describe this organization. His first response was "betterment for the human. I asked him again for clarification concerning the clienteles and his experience in this field. He then changed to say it is an animal society. He did agree that he had done sufficient research to prepare for his settlement. He did not know if this organization was actually hiring nor the skills and qualifications it would be seeking.
Asked if he had done any research on the employment prospects as a survey researcher in Canada and he said no. Why not? He said "I thought I will get to Canada then I will make survey.
But why not before you moved to Canada? He said he did not know the sources to find the answers.
Said he would search for jobs when he landed in Canada. He said he send [sic] his resumes to some companies. I then asked him which types of companies he would be targeting. He could not tell me.
Asked if he could tell me about the social policies, social and welfare systems in Canada - he said "no." 6 units are generously awarded for suitability factor.
THE ERRORS ASSERTED
[8] Mr. Kalam asserted four reviewable errors, as follows:
1. The visa officer erred in his evaluation of Mr. Kalam as an Economic Development Officer by improperly assessing his education, training and work experience.
2. The visa officer erred in his evaluation of language ability.
3. The visa officer erred in his assessment of personal suitability.
4. The visa officer ought to have considered whether to exercise positive discretion to issue a visa under subsection 11(3) of the Regulations.
ANALYSIS
(i) Assessment of education, training and work experience as an Economic Development Officer
[9] Under NOC 4163.0, the employment requirements for the occupation include the following:
A bachelor's degree in economics, commerce, business administration or public administration is required.
[10] Although Mr. Kalam holds a bachelor of social sciences degree in political science and a masters of social sciences degree in political science, he does not hold any of the required degrees and admitted this in his affidavit filed in support of this application at paragraph 14.
[11] Mr. Kalam provided no authority to support his argument that a visa officer should interpret NOC requirements that say "is required" in the same way as those requirements which say "is usually required", and to do so would be contrary to the wording of the NOC. The NOC uses the phrase "is required" to indicate a definite occupational requirement, the phrase "is usually required" to indicate something that is usually, but not always, required by employers, and the phrase "may be required" to indicate something that may be required by some employers on a less frequent basis. This reflects the varying requirements for different occupations and, in my view, shows that the phrases may not be used interchangeably without doing violence to the scheme established in the NOC.
[12] Mr. Kalam's further submission that the NOC should be interpreted liberally to promote immigration is contrary to authority of this Court such as Haughton v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 284 (F.C.T.D.) where Rothstein J., as he then was, confirmed that the CCDO (the predecessor to the NOC) is not simply a guide for visa officers, but rather is a binding system of classification and assessment so that there is no room for a visa officer to import different criteria into the requirements of a specific occupation.
(ii) The assessment of language ability
[13] With respect to the assessment of language ability, the submission that the visa officer erred or breached a duty owed to Mr. Kalam by providing a test that was not reasonable in the context of Mr. Kalam's education, training and experience is contrary to authority such as Yung v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 884 (T.D.). There Justice Reed noted that the wording of factor 8 of the Regulations and the jurisprudence indicate that the assessment of language abilities should not proceed by reference to a variable standard. Rather, language assessments are to be approached from one common standard, not dependent on the intended occupation of a prospective immigrant.
[14] On the basis of the language tests contained in the record, the visa officer committed no reviewable error, in my view, in concluding that Mr. Kalam's English was not fluent. Mr. Kalam had a full opportunity to demonstrate his fluency in the objective written TOEFL test he was given, which, according to the affidavit of the visa officer, Mr. Kalam was permitted to write a second time when he could not complete it the first time. Further, Mr. Kalam does not challenge the visa officer's observation in the CAIPS notes that Mr. Kalam speaks with improper syntax.
(iii) The assessment of personal suitability
[15] The CAIPS notes quoted above record in detail the visa officer's observations with respect to Mr. Kalam's personal suitability. The visa officer did make one contradiction between his CAIPS notes and his written decision contained in the refusal letter. In the CAIPS notes the officer stated that Mr. Kalam had done some research in the employment area, while in the written decision he wrote that Mr. Kalam had not done any research into employment prospects in Canada.
[16] While this is a contradiction, I do not think it is material to the decision as a whole. The award of six units was recorded in the CAIPS notes immediately following that correct recording of Mr. Kalam's research efforts, so I am not satisfied that the award was tainted by any error.
[17] In assessing personal suitability, the visa officer considered the relevant factors and did not consider irrelevant factors. It is not, therefore, open to this Court to re-weigh the officer's assessment of personal suitability on an application for judicial review.
(iv) The exercise of positive discretion
[18] On Mr. Kalam's behalf it was submitted that the visa officer erred by failing to consider that the purpose of assessment was to promote immigration and further erred in failing to consider whether he ought to exercise his discretion to issue a visa under subsection 11(3) of the Regulations. However, the CAIPS notes record the officer's observation that "I consider the total units of assessment which you have been awarded to be an accurate reflection of your ability to successfully establish in Canada". I therefore find that the visa officer did consider the exercise of positive discretion.
[19] On Mr. Kalam's behalf it was asserted that such language was simply "boilerplate" and should be disregarded. However, in addition to the CAIPS notes, the visa officer swore in his affidavit that in his view the total units awarded were an accurate reflection of Mr. Kalam's ability to become successfully establish in Canada. The visa officer was not cross-examined on that statement and in that circumstance I do not find that Mr. Kalam established a failure to consider the exercise of positive discretion.
(v) Certification of a question
[20] Counsel for Mr. Kalam posed certification of two questions. The first was whether, with respect to the employment requirements, when determining if a degree is "required" should a strict, narrow interpretation govern, or should a visa officer take a more flexible approach? The second question was whether, when considering a common standard in the assessment of language ability, even if an applicant is to be objectively assessed should that applicant be assessed on the basis of more than one written article?
[21] Counsel for the Minister opposed certification of either question.
[22] I find that the first question is well-settled in the case law, while the second would depend upon the particular facts of a case and accordingly does not raise a serious question of general importance.
[23] For these reasons, the application for judicial review was dismissed without certification of any question.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
July 31, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1340-01
STYLE OF CAUSE: MD. Abul Kalam and the Minister of Citizenship
and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 23, 2002
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE DAWSON
APPEARANCES:
Mr. Marvin Mosses FOR APPLICANT
Mr. John Loncar FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Marvin Mosses FOR APPLICANT
Mosses & Associates
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada