Date: 19990913
Docket: IMM-3822-98
BETWEEN:
RUP CHAND
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN J.
[1] The applicant challenges by way of judicial review the decision, dated 14 July 1998, made by visa officer Nora Egan at the Canadian Consulate General in Buffalo, New York, in which the applicant"s application for permanent residence was refused. The applicant seeks an Order setting aside the decision and asks that the matter be referred back to a different visa officer to be heard anew.
Background
[2] The applicant, Rup Chand, is a citizen of India. He moved to Canada in March 1990, after being offered employment as a cook at Motimahal Restaurant in Toronto. The owner of that restaurant had been unable to find a suitable cook locally and secured permission from Human Resources Development Canada, in the form of a temporary employment validation, to hire the applicant, a foreigner. The applicant, in turn, obtained an employment authorization from the Canadian High Commission in New Delhi, India, allowing him to work at the restaurant in Toronto. In May 1996, the applicant"s employer secured a permanent employment validation for the applicant.
[3] Following that, the applicant applied for permanent residence status on 28 June 1996. He sought to be assessed under the independent category as a cook, foreign foods"specifically, as an Indian sweets maker. The applicant requested the exercise of positive discretion in his favour, based on his proven ability to successfully establish himself in Canada over the past six years. On 12 February 1997, however, his application was denied on the basis that he had failed to amass sufficient units of assessment to qualify for immigration to Canada.
[4] The applicant sought judicial review of this decision, and on 17 February 1998, Mr. Justice Muldoon allowed his application (IMM-972-97). The visa officer"s decision was set aside and the matter was referred back for redetermination.
[5] The applicant attended a second interview at the Canadian Consulate General in Buffalo on 14 July 1998, and a second letter of refusal was issued that same day. Once again, he seeks judicial review of the negative decision.
Decision Under Review
[6] The applicant was assessed as a cook, foreign foods, according to the Canadian Classification and Dictionary of Occupations ("CCDO"), CCDO 6121-126. He received 64 points, an assessment identical to the first one he had received. He was awarded the maximum units of assessment for occupational demand (10) and arranged employment (10).
[7] In the cross-examination of the visa officer on her affidavit, sworn 28 September 1998, the visa officer indicated that with regard to personal suitability, for which she had awarded the applicant five points, she had concerns that he had not upgraded his marketable skills so as to enhance his future employment prospects (applicant"s application record, tab 4, p. 77). She was also concerned with the applicant"s employer providing him with accommodation, which she felt indicated a lack of motivation on the applicant"s part to become settled here (pp. 78-79).
[8] The visa officer also acknowledged that the applicant was awarded the maximum number of points, which was ten, for occupational demand. This means that his particular occupation was in demand to the extent that it was placed at the top of the demand list.
[9] The applicant also received the maximum points for arranged employment because of his permanent employment validation. The visa officer agreed that it was reasonable that the applicant"s employment would continue (p.75).
[10] However, notwithstanding the high occupation demand for Indian sweets makers and the applicant"s permanent employment validation, the visa officer declined to exercise positive discretion in his favour as she was of the opinion that he had not successfully established himself in Canada, nor would he be likely to do so.
Applicant"s Position
[11] The applicant submits that the visa officer failed to comply with Mr. Justice Muldoon"s Order, dated 17 February 1998 and, in fact, made the same errors for which the first visa officer was faulted. In his reasons for judgment, Mr. Justice Muldoon held that the visa officer, who also faulted the applicant for failing to improve his skills and overlooked his savings of $20 000, had misconstrued her function and applied a standard more akin to that of a citizenship judge.
[12] The applicant contends that the visa officer erred in her determination of his personal suitability, by overlooking or minimizing the fact that he has been employed continuously in Canada, since March 1990, at the same job. He received a permanent employment validation, and has considerable savings, in the amount of $20 000. He argues that there is no need for him to upgrade his skills in any way as his occupation is in high demand and he has some eighteen years of experience in his chosen field.
[13] The applicant submits that the visa officer improperly focussed on irrelevant considerations. She was concerned that if he lost his current job he would not be able to compete in the job market. The applicant argues that this flies in the face of the fact that his particular occupation is in such demand that it has been placed on the demand list, which mandates that he be awarded the maximum number of points for occupational demand. The applicant also contends that the visa officer"s concerns over his job security are without any foundation as he had been awarded a further ten units for arranged employment. Furthermore, the visa officer had conceded under cross-examination that she was of the opinion that the applicant had reasonable job prospects in Canada.
[14] The respondent maintains that the applicant"s failure to upgrade or improve his skills was a relevant consideration for the visa officer to take into account when assessing the applicant"s personal suitability. The respondent also submits that the applicant"s units of assessment for occupational demand and arranged employment have no bearing on his award under personal suitability, whereas factors such as education, language, and job skills can be taken into account insofar as they relate to the issue of the applicant"s adaptability, motivation, and resourcefulness.
Discussion
[15] It is abundantly clear that the visa officer"s decision cannot be allowed to stand. The visa officer who made the second decision appears to have fallen into the same sort of error for which the first visa officer was faulted by Mr. Justice Muldoon. The following comments of Mr. Justice Muldoon, at paragraphs 6 and 7of that decision, are instructive,
| It should be noted that the applicant herein, Mr. Chand, has had a permanent employment validation since May 6, 1996, from Human Resources Development Canada. It was obtained because the applicant"s employer satisfied HRDC that the applicant"s permanent employment would not adversely affect employment and career opportunities for Canadian citizens or permanent residents. Mr. Chand has been employed by the same Indian restaurant since 1990, and has saved up a "nest-egg" of $20,000. In a letter, exhibit E to the applicant"s affidavit, his employer states that he "will gladly keep Mr. Roop Chand employed * * * for as long as he desires to work here. He is hard working." |
| The applicant asserts that the visa officer overlooked or minimized the significance of the above noted facts, and his assertion is plausible. As noted, she seemed to be casting herself in the rôle of a citizenship judge, and not limiting her rôle to that mandated by the Supreme Court in the Chen [v. Canada(MEI),[1995] 1 S.C.R. 725] case. That deficiency evinced an error of law. |
[16] Again, the second visa officer appears to have minimized, or indeed ignored, the applicant"s current status vis-à-vis his permanent employment validation, his employer"s written assurance that he will continue to employ the applicant, and the high demand for the applicant"s chosen occupation.
[17] For the visa officer to conclude as she did that the applicant should be faulted for not upgrading or enhancing his skills so as to make himself more marketable, flies in the face of reasonableness when one considers his extensive experience as a sweets maker, which dates back to 1980, and the high demand for his occupation. He has no need to upgrade his skills. As Mr. Justice Muldoon remarked, "After all, the applicant does not intend to earn his family"s living as a physician, accountant, lawyer or professor, just as an Indian restaurant sweets-cook." And that is something he has shown he is quite capable of, having been employed continuously since March 1990.
[18] Furthermore, the visa officer"s concerns that the applicant may find himself unemployed in the near future are simply without foundation and constitute mere speculation of an irrelevant nature. Nothing in the record supports this contention, and indeed the applicant"s employer has submitted a letter of reference indicating his satisfaction with the applicant"s job performance and assuring the reader that he plans to keep the applicant employed as long as the applicant desires.
[19] Even if the applicant were to find himself unemployed, his chosen occupation is one that is in high demand in Canada, such that it warrants the maximum allowable units of assessment under the occupational demand factor.
[20] The applicant has shown that he has successfully established himself in Canada in the economic sense. He is skilled and experienced at his chosen occupation, for which there is high demand, has amassed savings, has been continuously employed since March 1990, and has obtained a permanent employment authorization. If this does not demonstrate the ability to become successfully established, then I do not know what else could. The visa officer"s decision is perverse in that it completely ignores or minimizes this evidence, and instead focusses on unsupported speculation about the applicant"s job security.
[21] Although requested by counsel for the Applicant, I do not believe that a case has been made for a Res judicata.
Costs
[22] This issue came up at the last minute and the delays here were very costly to the Applicant who deserved better. I will not deal with costs for counsel fees and disbursements because I did not have sufficient detail to give an informed opinion. However, I believe the Applicant and Respondent herein agree that some form of compensation should be paid to the Applicant to enable him to pay for the trips necessary to secure documentation, which documentation lapsed due to the delay. Accordingly, I am requesting that the parties negotiate a sum to be paid by the Respondent to the Applicant.
[23] In the result, the visa officer"s decision is set aside and the applicant"s application is referred back for yet another redetermination by a different visa officer, with particular care and attention to be paid to the substance and meaning of these reasons. Counsel for the Respondent has requested that the Court accept the following questions for certification:
| Did the Officer err in awarding five points to the Applicant in the category of personal suitability? |
| Does the Court have jurisdiction to declare that an Applicant is likely to become successfully established in Canada, given that this is an issue that the visa Officer is called upon to decide? |
| Does the Court have jurisdiction to direct that an Applicant be awarded a certain number of points under the category of personal suitability? |
| Does the Court have jurisdiction, in an award of costs, to order the Respondent to compensate the Applicant for expenses which are unrelated to the actual cost of the litigation? If so, what is the extent of the Court"s jurisdiction? |
[24] I accept the above for certification as questions of general importance.
Ottawa, Ontario
September 14, 1999
B. Cullen
J.F.C.C.