Date: 20020705
Docket: IMM-3494-01
Neutral citation: 2002 FCT 748
Vancouver, British Columbia, July 5, 2002
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
ANTHONY VERGHESE
also known as M.V. ANDENY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of Margaret Gass, visa officer at the Canadian High Commission in London, England, dated June 15, 2001, refusing the applicant's application for permanent residence in Canada under the self-employed category.
[2] The applicant, Mr. Verghese, is a citizen of Singapore. On June 28, 2000, the Canadian High Commission in London, England received his application for permanent residence in Canada in the self-employed category as a management consultant (National Occupational Classification (NOC) 1122).
[3] The applicant was interviewed on May 22, 2001. At the conclusion of this interview, the visa officer expressed her concerns to the applicant regarding his ability to establish a self-employed business and asked him if there was anything that he would like to add, to which the applicant responded that his trip had been too brief to enable him to do substantive research.
[4] The refusal letter sent to the applicant on June 15, 2001 gave the following explanations:
- the applicant's background and expertise were insufficient to satisfy the visa officer that the applicant had the ability to establish and manage a business on his own in Canada;
- the applicant had never established and operated his own self-employed business and had held largely managerial positions in various organizations;
- the applicant was unable to discuss his business proposal in sufficient detail at his interview to satisfy the visa officer's concerns about his ability to establish his self-employed business venture. More specifically, the applicant had made only limited efforts to familiarize himself with the industry and he did not have any real knowledge of the competition and costs involved in starting a business;
- the Applicant had not performed some or a substantial number of the main duties of his intended occupation.
[5] A self-employed person is defined in section 2 of the Immigration Regulations, 1978, SOR/78-172, as an immigrant who intends and has the ability to establish or purchase a business in Canada that will create an employment opportunity for himself and will make a significant contribution to the economy or the cultural or artistic life of Canada.
[6] To be admissible, this person will be assessed based on each factor listed in Column I of Schedule I other than the factor set out in item 5 thereof (paragraph 8(1)(b) of the Regulations). An applicant must be awarded at least 70 units of assessment to be admissible (subparagraph (9)(1)(b)(i) of the Regulations). If the visa officer believes the immigrant can become successfully established in his or her occupation or business in Canada, he or she shall award 30 units of assessment to the immigrant, in addition to any other units of assessment awarded (subsection 8(4) of the Regulations).
[7] It is important to note that subsection 8(1) of the Immigration Act, R.S.C. 1985, c. I-2 provides that the burden of proving that a person ought to be awarded an immigrant visa is on the person applying for that visa (Asghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091).
[8] The applicant first submits that the visa officer breached her duty of fairness by not directing a specific line of questioning as to the actual work experience of the applicant. If the visa officer had asked the right questions, it would have been apparent that he had accomplished the main duties and responsibilities of a management consultant. I disagree. The visa officer asked the applicant to describe the positions and duties he had at each place listed on his resume. The onus was on the applicant to satisfy the visa officer that he had experience performing some or a substantial number of the main duties of a management consultant. He was unable to do so. The visa officer's decision was based on the evidence (documentary evidence and interview with the applicant) that was before her. She was very thorough and gave the applicant many occasions to present evidence and elaborate on it. She concluded that he did not have experience performing some or a substantial number of the main duties of a management consultant as set out in the NOC and therefore, awarded the applicant zero units for experience.
[9] The applicant argues that the evidence found within the CAIPS notes show many duties of a management consultant being carried out in the applicant's employment. I have reviewed the CAIPS notes and have found no evidence to support the applicant's submission. The visa officer's affidavit is instructive on this matter:
I asked Mr. Verghese to describe the positions and duties he had at each place he had listed in his resume. I took detailed notes of his responses, a true copy of which are found in my CAIPS notes.
Mr. Verghese had specific managerial functions in large companies from 1982 to the present that is, operating, overseeing and controlling operations within his purview or specific area of responsibility. Mr. Verghese's main duties were not to analyze and conduct research of management methods and organization. Neither Mr. Verghese's description of his duties at interview or in his resume, nor in the reference letters submitted in support of his application, led me to find that he had experience performing some or a substantial number of the main duties of a management consultant.
The main duties of a Manager are different from those of a Management Consultant as per NOC and experience in one occupation is not the same as experience in the other ...
When he initially was asked to describe details of his employment history, Mr. Verghese did not give any information that indicated that his main duties or even ancillary duties were those of a management consultant. It was clear that Mr. Verghese's duties were those of a manager.
... In the context of his overall responsibilities, it appeared that the instances which he raised were isolated examples over a twenty year career and were not reflective of his daily responsibilities which were clearly managerial as underlined by his curriculum vitae and job description.
Respondent's Record at 4-5, paras. 16-23.
[10] From these comments, it is apparent that the visa officer considered the applicant's actual work experience and determined that it was not transferrable to his intended occupation. In any event, even if the visa officer did commit an error and could have awarded some points for experience, this error would have no material effect on the outcome of the decision, since the applicant was awarded zero units under the occupational factor. Pursuant to subsection 11(2) of the Regulations, an immigrant visa shall not be awarded unless at least one unit of assessment is awarded under the occupational factor. Therefore, an error made by the visa officer under the experience factor could have no effect on the ultimate outcome of the application (Bhogal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1581 at para. 22).
[11] The applicant further submits that the visa officer erred by failing to disclose to the applicant her reservation about the relevance of his experience. More precisely, the applicant complains that the visa officer was required to do more than give a general statement of her concern to the applicant.
[12] In Hussain v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 203 at para. 42, Evans J. explained 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. He also added the following:
... 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."
[13] In the case at bar, the visa officer did more than simply ask the applicant if he had anything to add. She disclosed to the applicant her reservation concerning his ability to establish a self-employed business. In my view, this disclosure, in conjunction with the visa officer's line of questioning (she asked the applicant several questions to clarify whether he had previous self-employment experience, and whether he had management consulting experience, etc...), was sufficient to let the applicant know what the visa officer's concerns were, to which he was required to respond. The visa officer asked the appropriate questions to enable her to make an adequate assessment of the information that the applicant had provided (Hussain, supra at para. 43). I fail to see how the visa officer breached her duty of fairness in that regard. As I have already mentioned, the onus is on the applicant to prove that he has the ability to establish a business in Canada, not on the visa officer.
[14] The applicant also submits that the visa officer erred in law in applying a definition of the term "self-employed" which is not in accordance with the Act and Regulations. In her refusal letter, the visa officer stated the following:
You have never established and operated your own self-employed business and have held largely managerial positions in various organizations. While direct experience establishing and operating a self-employed business is not a prerequisite for qualifying for permanent residence as a self-employed person, it can, in conjunction with other factors, be considered in determining the likelihood that you can meet the definition of self-employed.
Tribunal Record at 12.
[15] The applicant argues that the visa officer placed undue emphasis on past self-employed experience. Again, I disagree. The visa officer simply determined that the applicant did not have the requisite experience in his intended occupation. The applicant's self-employed experience was only one of the factors upon which the visa officer based her decision. The relevant parts of the visa officer's CAIPS notes read:
the subject has never operated a business as self-employed or as employing others ... He has not worked as a management consultant as per NOC. More importantly however is the applicants lack of knowledge about the viability of his doing this business in Canada. He has limited knowledge of the market and virtually non e [sic] about competition and costings ...
SUBJECT DOES NOT HAVE EXPERIENCE PERFORMING SOME OR A SUBSTANTIAL NUMBER OF THE MAIN DUTIES OF A MANAGEMENT CONSULTANT AS PER NOC1122. WHILE HE HAS HELD SENIOR MANAGEMENT POSITIONS HSIS [SIC] ROLE WAS TO RUN THE COMPANY NOT TO ANALYSE AND ADVISE MANAGEMENT ... ANY IMPROVEMENT HE MAY HAVE SUGGESTED WERE PART AND PARCEL OF WHAT COULD BE EXPECTED OF AN EMPLOYEE WHO IS MOTIVATED. THESE SUGGESTIONS WERE, BY HIS OWN STATEMENT, MADE OF HIS OWN VOLITION AND NOT AS A RESULT OF ANY SPECIFIC ASSIGNMENT TO DO SO.
CAIPS notes, Tribunal Record at 7.
[16] Overall, based on the totality of the evidence, it was open to the visa officer to conclude that the applicant has neither the background nor the expertise required to establish a management consultant business in Canada.
[17] Based on all the evidence, I find the visa officer's decision to be reasonable and intervention by the Court to be unwarranted in the circumstances of this case.
ORDER
The application for judicial review is dismissed.
(Sgd.) "Danièle Tremblay-Lamer"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3494-01
STYLE OF CAUSE: ANTHONY VERGHESE also known as
M.V. ANDENY
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: July 3, 2002
REASONS FOR ORDER AND ORDER: TREMBLAY-LAMER J.
DATED: July 5, 2002
APPEARANCES:
Mr. S. David Aujla for Applicant
Ms. Emilia Péch for Respondent
SOLICITORS OF RECORD:
Morahan & Aujla for Applicant
Victoria, B.C.
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
Ottawa, ON