Federal Court Decisions

     IMM-3759-96

BETWEEN:

     SHAKEEL MUHAMMAD SIDDIQUI

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP & IMMIGRATION

     Respondent

     REASONS FOR ORDER

CULLEN J.:

     This is an application for judicial review of a decision of the visa officer refusing the applicant's application for permanent residence in Canada. The applicant requests that the visa officer's decision be quashed, and that the applicant's application be considered and processed in accordance with the law.

THE FACTS

     The applicant is a citizen of Pakistan. He applied to immigrate to Canada through the visa office in the city of Colombo, Sri Lanka. He was granted an interview with the visa officer on August 21, 1996. By way of a letter dated August 23, 1996, the respondent advised the applicant that he did not meet the requirements for immigration to Canada in the Assisted Relative category.

     Although the applicant had listed as his intended occupation "electronic games repairer," the visa officer had assessed the applicant as a "foreman, electronic equipment fabrication and assembling." This assessment was based on the visa officer's interpretation of the job offered to the applicant in Canada as being that of a supervisor of research and development of other workers in the applicant's brother's electronics firm. Accordingly, the applicant was awarded 73 units of assessment. However, he was awarded no points for experience within his intended occupation.

     In order to be selected as an Assisted Relative, an applicant must earn a minimum of 65 units of assessment, with at least one point having been awarded for experience. Because the applicant had received no points for experience, his application was, effectively, vetoed.

     The visa officer awarded the applicant no points for experience on the basis of information received at the interview. The visa officer gave a detailed set of reasons in support of this assessment, including the applicant's failure to demonstrate any experience in the management, research, and development aspects of the occupation under which the applicant was assessed; the applicant's failure to demonstrate any experience in his stated intended occupation; and the applicant's inability to furnish any evidence of the electronic games business that he purportedly had been operating for the past seven years.

     The visa officer, in her affidavit, indicates that the applicant and the job offer extended to the applicant were so vague, that the points that actually had been awarded for the SVP and the intended occupation did not fairly reflect the applicant's situation.

     The visa officer also had serious concerns about the applicant's ability to communicate in English, especially in terms of its effect on the applicant's ability to fulfil the position of trust and supervision offered him by his brother.

     The visa officer deposes that she had also considered the applicant under the Independent category. However, the applicant's bank statement attesting to a balance of (US) $18,100 was insufficient for the applicant and his family of four to be considered under this category. A further reason for refusing the application under the Independent category was the applicant's inability to furnish any evidence of his electronic games business.

     At the end of the interview, the visa officer indicated to the applicant that she had to refuse his case on his failure to obtain sufficient points in the area of experience in the job offered.

THE ISSUES

     The determinative issue in this case can be framed as the following question: did the visa officer err in assessing the applicant under the category of "foreman, electronic fabrication and assembling," a supervisory position, rather than under the applicant's stated intended occupation of "electronic games repairer"? This question can be divided into a number of sub-issues, each of which will be addressed below.

THE LAW

     The applicant bears the burden of establishing his eligibility to immigrate to Canada.¹ If the visa officer's decision is reasonable and open to her based on the totality of the evidence before her, this Court, generally, will not interfere with it. The jurisprudence relevant to assessment of occupation is well summarized in Saggu v. Canada (Minister of Citizenship and Immigration) (28 November 1994), T-2186-92 (Fed. T.D.) [hereinafter, "Saggu"] as follows:

... The visa officer has a duty to assess an application with reference to the occupation represented by the applicant as the one for which he or she is qualified and prepared to pursue in Canada. The duty extends to each such occupation. An order of certiorari and mandamus will be available where there has been a failure to do so.

... Further, there is a clear responsibility on the part of a visa officer to assess alternate occupations inherent in the applicant's work experience: Li v. Canada (Minister of Employment and Immigration) (1990), 9 Imm.L.R. (2d) 263 (Fed.T.D.). A visa officer must consider an applicant's aptitudes, previous work experience, and whether or not this constitutes experience in the intended occupations ...

[my emphasis]

DISCUSSION

1.      Did the visa officer fail to consider IS 1:18 of the Immigration Manual? If she did, is this failure fatal to her decision to refuse the application?

The provision

     IS 1:18 is found in the Guidelines of the Immigration Manual. It is not a statutory provision that must be strictly adhered to; it is a matter of policy.

     IS 1:18 provides that the visa officer is to consider the labour market and other related considerations, the prospective immigrant's work experience, aptitudes, and abilities in relation to the proposed position, and the objective of family reunification. While the Guidelines require the visa officer to assess all factors, they also indicate that family reunification is at least equal to or more significant than other factors.

The evidence

     The visa officer's notes concerning the interview, dated August 21, 1996, indicate that the applicant's wife has four brothers, all of whom are in Canada, having come here about 20 years ago. The wife's mother and step-sister live in Pakistan (however, the visa officer also deposes that she was informed at the interview that the step-sister lives in Canada). The applicant's parents live in Pakistan. The visa officer's affidavit indicates that the applicant has one brother who lives in Pakistan, and two brothers and two sisters who live in Canada. The applicant's brother, who proposes to employ the applicant in Canada, came to Canada in 1991, and works as a marketing supervisor.

     Regarding the suitability of the applicant, as a family member, to fulfil the requirements of the intended occupation, the visa officer states in her refusal letter that she was not satisfied that the applicant would be capable of fulfilling the requirements of the position of trust offered to him by his brother in Canada. This is because of the applicant's lack of experience in work assignments, training, worker evaluation, research and development, supervision of employees, and handling financial affairs, and also because of the applicant's extremely limited English skills.

Analysis

     The relevant question is whether the visa officer's decision is supportable by the evidence before her.

     The visa officer supports her decision about the applicant's lack of suitability for either his stated intended occupation or the assessed occupation in considerable detail.

     Nevertheless, I am concerned that nothing is specifically mentioned about the policy of family reunification as set forth in IS 1:18. The visa officer's refusal letter makes no mention of any issue related to family reunification. Nor is there any explicit weighing of the objective of family reunification against the other relevant factors. However, it is evident that the visa officer was aware of the applicant's family members who live in Canada, as well as those of the applicant's wife. The visa officer was also aware of the family members who remain in Pakistan. I cannot, therefore, conclude definitively that the visa officer did not take the policy of family reunification into consideration, nor can I conclude that her decision in this regard was made without regard to the evidence before her.

     The applicant, therefore, has not demonstrated that the visa officer failed to take into consideration the Guidelines as set out in the Immigration Manual or erred in her application of the Guidelines.

2.      Did the visa officer fail to assess the applicant's intended occupation?

The evidence

     The applicant provided no supporting evidence for his repair business to the visa officer either during or subsequent to the interview. The only evidence in support of the applicant on this point is a statement in the applicant's brother's affidavit (the prospective employer) to the effect that the applicant has a shop in Pakistan. This affidavit was not, however, before the visa officer.

     The cross-examination of the visa officer indicates that she believed that the applicant did, indeed, have work experience. But, she did not feel that this experience was relevant to the job offered.

     The applicant's units of assessment are clearly with respect to the occupation of supervisor of operations, which she described as more accurately reflecting the position that was offered to the applicant by his brother. However, the visa officer's refusal letter indicates that she also had considered the applicant's stated intended occupation of electronic games repairer.

Analysis

     Had the units of assessment been in respect of the occupation of electronic games repairer, would the net result have been the same for the applicant? The visa officer found that the applicant had demonstrated no experience in the repair of electronic games, and had provided no evidence of the electronic games repair business which he had purportedly been operating for seven years. Although in cross-examination, she indicates that she did believe that the applicant did have work experience, it was not in electronic games repair. Rather, the work experience included being a sales clerk in a pharmaceutical business, a machine operator, and a welder.

     While the refusal letter stated that the applicant had been assessed as a supervisor of operations, it is apparent that he was also assessed in the occupation of electronic games repairer. If the applicant did have experience in the electronic games repair occupation, then his visa applicant would not have been vetoed by the visa officer per Regulation 11(1). I cannot conclude that the applicant was not assessed in his intended occupation of electronic games repairer. There is no breach of the duty of fairness here, and the Saggu test is satisfied.

     The question remains, however, as to whether the assessment of no experience was open to the visa officer on the evidence before her. To come to her conclusion of no experience, the visa officer made an assessment of the applicant's credibility regarding his having run an electronic games repair operation for the past seven years. This negative credibility finding arose out of a lack of any documentary evidence as to the existence of the long-standing business, a lack of any credentials as to the applicant's ability to operate the business, and the applicant's demeanour when answering questions regarding the business. The credibility finding was thus open to the visa officer on the basis of the evidence before her, and the conclusion based thereon should not be interfered with.

3.      Did the visa officer misrepresent the job offer?

     Upon examining the applicant's evidence in conjunction with the visa officer's refusal letter, I cannot conclude that the visa officer misrepresented the job offer in any material way.

4.      Did the visa officer fail to consider paragraph 11(1)(a) of the Immigration Regulations?

     This provision reads:

11. (1) Subject to subsection (3) and (5), a visa officer shall not issue an immigrant visa ... to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof [experience] unless the immigrant ...

(a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience.

Analysis

     This issue caused me the greatest concern on behalf of the applicant for the following reason. The applicant's brother deposes that he is willing to hire the applicant primarily because he can trust him to supervise the research and development conducted by the company's employees, with an eye to preventing such employees from leaving the company and setting up competing businesses. There are other related duties, including training workers in the area of electronics, banking, and evaluating and directing workers. The brother deposes that, for the most part, the applicant need not be fluent in English in order to fulfil his duties. It is clear that the brother wants the applicant to come and work in the company.

     However, the regulatory test to be satisfied has two parts. The first part is that there must be a willing employer to hire the inexperienced person. The applicant satisfies this portion of the test. But the second part of the test requires that the visa officer must also be "satisfied that the person can perform the work required without experience." Both parts of the test must be satisfied to be in accordance with paragraph 11(1)(b) of the Immigration Regulations. The visa officer was not satisfied that the applicant could perform the work required without experience.

     If the applicant has no experience, he bears the onus to satisfy the visa officer that he can perform the work required without experience. The visa officer's decision is grounded in the evidence before her, and is, therefore, in accordance to the law. Despite the applicant's brother's stated wishes to have the applicant come to work for him, and the applicant's willingness to come to work for his bother, I can find no reason, in law, to interfere with the visa officer's decision on this point.

CONCLUSION

     The above points are dispositive of this case.

     Query: if the job offer in the family business had been simply for doing cash deposits at the bank and for working "around the clock" keeping an eye on the cash flowing through busy cash registers to ensure that there was no pilfering -- a position of trust for which a family member is most suitable -- would the result have been different for the applicant? The answer may well have been positive for the applicant. However, the job offer was for what seemed to be a more challenging, specialized position, and the visa officer concluded that the applicant would not be able to perform the duties of the position, and thus rejected the applicant's visa application.

     This case is troubling in the sense that there is a recognized policy of family re-unification in the Immigration Act, and this policy is to be born out through provisions such as the assisted relative and family business provisions, under which the applicant has applied for permanent residence. There is evidence, in this case, of the desire of the family to re-unite with the applicant in Canada, and to employ the applicant in the family business in a position of trust. The policy of family re-unification seems to be aimed specifically at such cases. However, despite the best wishes of the family and the applicant, the applicant must still overcome the statutory hurdle of satisfying the visa officer that he can perform the work offered without the experience that would normally be required. A negative finding in this regard seems to go against the policy of family re-unification. This requirement is, nevertheless, necessary to ensure that so-called "bogus" employment offers are not made, where there is no real intention that the applicant actually fill the offered position -- there is only an intention to get the applicant to Canada.

     Using this line of reasoning, it is possible to find fault in the visa officer's refusal to approve the applicant for permanent residence. However, it is not the job of this Court to substitute its decision for that of the visa officer. It is difficult to accept that the visa officer did not assess the applicant's experience, and whether he would be able to do the job without such experience. The record is clear that she did.

     Accordingly, this application for judicial review is dismissed.

OTTAWA, ONTARIO     

    

September 24, 1997.      J.F.C.C.

__________________

     ¹      Immigration Act, R.S.C. 1985, c. I-2, subsection 8(1).