Date: 20040116
Docket: IMM-2680-02
Citation: 2004 FC 64
Ottawa, Ontario, this 16th day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
HALA NEHME
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
MacKAY J.
[1] This is an application for judicial review pursuant to s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act"), in relation to the decision of a visa officer, rendered April 10, 2002, refusing the applicant's application for permanent residence, without an interview. The refusal was based on the visa officer's assessment of the applicant with only 57 points, less than the 70 points required for acceptance. In that assessment, no points were awarded for experience in her intended occupation, and none were awarded for the occupational factor.
[2] The applicant seeks an order quashing the decision of the visa officer and directing the respondent to process the applicant's application for permanent residence in a favorable manner, or in the alternative, that the application be reconsidered by a different visa officer.
[3] The applicant is a 34-year old woman, a citizen of Lebanon who applied for permanent residency in the independent category under the employment classification, NOC 6233, Retail Merchandiser. She has a Bachelor's degree in Information - Public Relations and Advertising. She indicated on her application that she is fluent in English and French. In 1994, her husband had opened a slipper manufacturing business, known as Extrafoot. The applicant claims she has worked as a retail merchandiser for Extrafoot ever since it was opened.
[4] In July 2000, her husband moved to Kuwait, where he remains, working as an electronics salesman. In his absence, the applicant became solely responsible for Extrafoot.
[5] With her application on February 28, 2002, she included letters from retailers indicating past business dealings with Extrafoot, as well as receipts indicating purchases by Extrafoot from wholesale suppliers. These receipts were all dated after her husband had moved to Kuwait leaving the applicant to run the entire business.
[6] The refusal letter from the visa officer, dated April 10, 2002, indicated that the application had been refused because only 57 points were assessed. In part the letter read:
With respect to my assessment of Occupational Factor, I concluded on the evidence on your application that you have not performed a substantial number of the main duties of a Retail Merchandiser nor have you performed the essential duties of that occupation. There is no evidence on your application that you have every [sic] been employed as a buyer of merchandise for resale by the retail or wholesale trade or that you have been responsible for the merchandising operation of a retail establishment. The evidence on your file demonstrates that you are employed in a slipper factory (owned by your husband) and are concerned with the sale of product to retail and/or wholesale establishments.
I have also not awarded to you any units of assessment for Experience. This is because you have not even performed some of the duties of Retail Merchandiser as required by the National Occupational Classification..
[7] Upon receipt of the refusal letter, the applicant's immigration consultant wrote to the visa officer requesting reconsideration of the decision, and that the applicant be granted an interview in relation to her application. In a letter dated May 14, 2002, the visa officer reiterated her conclusion that the applicant had insufficient experience to qualify her for permanent residence under the indicated NOC classification, and further that she was unable to consider new evidence.
[8] The applicant submits that, in accord with Baker v. Minister of Citizenship and Immigration (1999), 174 D.L.R. (4th) 193 (S.C.C.), the standard of reasonableness simpliciter should be applied when reviewing the visa officer's exercise of discretion.
[9] The applicant argues that the visa officer erred by not assessing her any points under the experience and occupational factors. More specifically, the applicant argues that the visa officer's decision was based on an erroneous understanding of the specific duties which must be performed by an applicant in order to qualify under an NOC category. Thus, she argues that the decision is unreasonable and warrants this Court's intervention. Moreover, she urges that visa officers should not expect applicants to have experience in every one of the main duties listed in a NOC category.
[10] Finally, the applicant submits that, by refusing to grant her an interview, the visa officer breached the duty of fairness owed to the applicant in failing to provide her with an opportunity to respond to concerns whether her experience fulfilled requirements as described in NOC 6233.
[11] The respondent argues that discretionary decisions of a visa officer, as this case was, should be assessed in regard to a patently unreasonable standard. In particular, the respondent submits that the visa officer explained her reasons sufficiently in the letter of refusal - that the applicant did not perform a number of the main duties listed for the NOC classification, specifically that the applicant had not been:
1. Employed as a buyer of merchandise for resale by retail or wholesale trade, or
2. Responsible for the merchandising operation of a retail establishment.
Analysis
[12] Section 8(1) of the Act imposes on the applicant the burden of establishing that her or his admission to Canada does not contravene the Act and its Regulations. A decision of a visa officer whether an applicant meets the NOC criteria is one of discretion, based on the visa officer's experience and familiarity with the NOC and immigration requirements generally.
[13] On this point, Justice Evans in Madan v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1198 at para.24, commented :
In any event, visa officers should be afforded considerable discretion in determining whether an applicant satisfies the requirements for a given occupation, including their interpretation of the provision of the NOC. They have a familiarity with and understanding of this document that is at least equal to, and will often exceed, that of the reviewing court.
[14] The particular expertise of the visa officer dictates a deferential approach when reviewing a visa officer's decision. Indeed, as it was pointed out by Justice Pinard. in Chalaby v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 66, at para. 4:
The Supreme Court of Canada's judgment in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, did not change the applicable standard of review with respect to decisions regarding immigrant visas. As has been clearly established by the Federal Court of Appeal in Chiu Chee To v. Minister of Employment and Immigration, [1996] F.C.J. No. 696, (May 22, 1996), A-172-93, the appropriate standard of review for discretionary decisions of visa officers with respect to immigration applications is the same as that enunciated by the Supreme Court of Canada in Maple Lodge Farms v. Government of Canada, [1982] 12 S.C.R. 2. . . .
In view of the latter case, this Court should only intervene if the visa officer exercised her discretion in bad faith, or if the visa officer breached the principles of natural justice, or if she reached her decision by relying upon irrelevant considerations or without taking into account significant evidence.
[15] The visa officer, according to her comments in her CAIPS notes and to statements in her affidavit, indicates that she considered all the evidence submitted by the applicant with her application in relation to the proposed NOC criteria. The visa officer concluded that while the applicant may have had experience in some of the duties listed for the occupation, she did not have experience in buying merchandise for resale to retail or wholesalers or in buying products for resale by the retail or wholesale trade; rather, her experience in purchase and sale of products was in a manufacturing context.
[16] The visa officer concluded the applicant's experience was concerned with the sale of product of her factory to retail and/or wholesale establishments. In general terms, the applicant's experience was considered as an aspect of manufacturing. The NOC in question was read by the visa officer as concerned with the purchase and re-sale of ready-for-sale items by retailers or whole-salers.
[17] Whether or not an applicant meets the requirements contained in the NOC requires a weighing of the evidence with respect to the applicant's experience and training, a discretionary task undertaken by the visa officer alone. The decision is a determination of mixed fact and law and the appropriate standard of review is reasonableness simpliciter. I am not persuaded the decision in this case, in light of the applicant's application, was unreasonable. I am not persuaded that there is a basis to re-weigh the visa officer's assessment of the evidence. In my opinion that assessment was reasonable.
[18] With regard to the alleged breach of the duty to act fairly, it is important to note that the visa officer had no positive obligation to provide the applicant with an opportunity to address any concerns the visa officer may have in considering an application. The onus to demonstrate that an application meets requirements for a visa lies with the applicant. As noted by Justice Evans in Madan, supra:
It is well established that it is the responsibility of a visa applicant to put before the officer all the material necessary for a favourable decision to be made. Hence, visa officers are under no general legal duty to ask for clarification or for additional information before rejecting a visa application on the ground that the material submitted was insufficient to satisfy the officer that the applicant had met the relevant selection criteria.
[19] In Parmar v. Canada (Minister of Citizenship and Immigration),[1997] F.C.J. No. 1532, at para. 36, I commented that:
Procedural fairness does not oblige a visa officer, in weighing evidence provided by an applicant, . . . to accord an applicant a 'running score' or a penultimate comment on his 'score'. I would add to this position the view [. . .] that there is no requirement for notice of an officer's concerns where these arise directly from the Act and Regulations that the officer is bound to follow in his or her assessment of the applicant.
[20] In my opinion, in this case there was no obligation for the visa officer to convoke an interview for applicant who was assessed less than 60 units during the paper pre-screening process. The visa officer did not breach any duty of fairness by not providing an interview.
[21] When this application was heard it was urged on behalf of Ms. Nehme, for the first time, that the visa officer also breached a duty of fairness owed to her in the processing of her application, by failing to assess her application with respect to an alternate occupational classification , NOC 1225, Purchasing Agents and Officers. The respondent urged this issue, raised without notice, should not be considered , but the Court directed that the parties have an opportunity to provide written submissions on the issue. This was done.
[22] After consideration of the written submissions, I am not persuaded that there was any breach of the duty of fairness by the visa officer. Her responsibility to consider an alternate occupational classification to that proposed by an applicant for permanent residence, recognized in Li v. Canada (Minister of Employment and Immigration), (1990) 9 Imm.L.R. (2d) 263 (F.C.T.D.), does not require assessment of the applicant's experience against the education and occupational duties of all classifications within the NOC. Rather it extends only to those either proposed as alternates by the applicant, or those which any knowledgeable observer would recognize from the application submitted. At a minimum, an alternate occupational classification must be closely related the classification originally proposed.
[23] As Rouleau J. stated in Moksud v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 73 at paras. 16 and 17:
It is noteworthy that Li, by itself, does not stand for the overarching proposition that there is a responsibility on the part of the visa officer to assess alternate occupations inherent in the applicant's work experience. What Li actually stands for is that such a duty exists when applicants request it in their application.[. . .]
It has also long been held by the Court that visa officers have no duty to assess an applicant in alternative occupations unless the applicant has put them forward (See: Hajariwala v. Minister of Employment and Immigration et al. (1988), 23 F.T.R. 241); Khoja v. M.C.I., [1997] F.C.J. No. 39, IMM-998-96, January 3, 1997, (F.C.T.D.); Uy v. M.E.I., [1991] 2 C.F. 201 (F.C.A.); Gaffney v. M.C.I., (1991) 12 Imm. L.R. (2d) 185 (F.C.A.); Tolentino v. M.C.I., [1995] F.C.J. No. 907, IMM-1614-94, June 14, 1995, (F.C.T.D.); Yen Ngoc Quach v. M.C.I., [2000] F.C.J. No. 55, IMM-3071-98, January 21, 2000, (F.C.T.D.); Hassan v. M.C.I., [1999] F.C.J. No. 2012, IMM-218-99, December 17, 1999, (F.C.T.D.); Mahrez v. M.C.I., (1998) 46 Imm. L.R. (2d) 132, (F.C.T.D.)). Note: there are some discrepancies, though. See, for an example: Saggu v. M.C.I., (1994) 87 F.T.R. 137 (F.C.T.D.).
[24] Here, the alternative classification urged at the hearing of this application was not proposed to the visa officer for her consideration. There is no basis to conclude that the alternative proposed in the case at bar is so closely related to that proposed initially, that it would be readily recognized by a knowledgeable observer as one that should be assessed.
[25] In the written submissions provided subsequent to the hearing, the applicant raises yet another new issue and argues that the visa officer should be directed toconsider, pursuant to s-s 76(3) of the Immigration and Refugee Protection Regulations ( "IRPA Regs."), the likelihood of her ability to become economically established in Canada despite her failure to obtain the required points required for acceptance as a permanent resident in the skilled worker class. In my view, this section gives the visa officer the discretion to consider likelihood of an applicant's ability to become economically established in Canada, but the visa officer is not bound to do so, particularly where no request for such consideration is made with the application. The discretion vested under that provision is for the visa officer, and there is no basis for the Court to order that it be exercised. Thus, unless such exceptional discretion is exercised by the visa officer, the applicant is subject to s-s. 75(3) of the IRPA Regs, which states that the failure to meet the requirements for acceptance as a permanent resident dispenses with any necessity for the visa officer to make any further assessment.
Conclusion
[26] For these reasons, I am satisfied that this is not a case for the Court to intervene. Accordingly, I dismiss the application for judicial review.
ORDER
[27] IT IS ORDERED that the application for judicial review is dismissed
"W. Andrew MacKay"
J.F.C.
Ottawa, Ontario
January 16, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2680-02
STYLE OF CAUSE: HALA NEHME
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: Monday, April 28, 2003
REASONS FOR ORDER OF MacKAY J.
DATED: Friday, January 16, 2004
APPEARANCES:
Roderick Rogers
FOR APPLICANT
Melissa Cameron
FOR RESPONDENT
SOLICITORS OF RECORD:
Stewart McKelvey Stirling Scales
Halifax, Nova Scotia
FOR APPLICANT
Morris Rosenberg, Q.C.
Attorney General of Canada
FOR RESPONDENT