Date: 20021024
Docket: IMM-6443-00
Neutral citation: 2002 FCT 1102
Ottawa, Ontario, this 24th day of October, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
SABIHA RANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of a visa officer, Sara Trillo (the "visa officer"). The visa officer issued a decision denying the applicant her application for permanent residence in Canada.
FACTS
[2] The applicant was born in Pakistan in 1974 and is a citizen of that country. On
January 13, 2000, she filed an application for permanent residence in Canada through the Canadian Consulate General in Buffalo, New York. On November 2, 2000, the applicant met the visa officer at the office of the Canadian Consulate General in New York.
[3] At their meeting the applicant provided the visa officer documents serving as evidence of her work experience and education. She stated that she was a permanent resident of the United States, but that her husband was the only person in that country related to her, and she did not know his whereabouts. The applicant also has a son, who was born in Canada in April 2000.
[4] The visa officer stated in her affidavit that at their meeting, she noted that the applicant had trouble understanding and speaking English. The applicant also produced two letters of reference from the same employer, attesting to employment during identical time periods, with only the name of the position changed and minor variations in dates. The applicant's intended occupation, for the purposes of her evaluation as an independent immigrant, was "Legal Assistant". Her skills and previous work experience were therefore evaluated relative to the National Occupational Classification (NOC) description of that line of work.
[5] The visa officer also asked the claimant how she balanced two jobs with full-time study. The applicant replied, effectively, that since her study time was limited to evenings at the university, her daytime hours were available for work. The visa officer also asked about the steps that the applicant has taken in order to gauge the employment market and seek a job in her field in order to determine personal suitability.
DECISION AT ISSUE
[6] The total points awarded to the applicant were as follows:
Factor Units
Age 10
Occupational Demand 01
Specific Vocational Preparation 15
Experience 00
Demographic Factor 08
Education 15
English 06
French 00
Bonus 05
Personal Suitability 01
Total 61
[7] The total was short of the 70 points that the applicant required to meet the requirement laid out in the Immigration Regulations, 1978 (the "Regulations"), as outlined below in the section titled "Relevant Statutory Provisions".
[8] The decision was formally communicated to the applicant in a letter dated November 6, 2000. The visa officer pointed out that the applicant did not have the minimum of one year of experience in her intended occupation. This is required in order to receive any units of assessment, or points, for experience in that field.
[9] The visa officer also stated that the letters of recommendation offered by the applicant as proof of her employment experience were not acceptable. They were rejected because of the discrepancies mentioned above, for which the applicant could not provide a valid explanation when asked. The visa officer concluded her letter by noting that the reasons for refusing the applicant had been explained to her at the interview.
RELEVANT STATUTORY PROVISIONS
[10] Under the Regulations, which were in force at the time that the decision of the visa officer was made, the selection criteria for immigrants were laid out in sections 8 and 11:
| 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant:
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
[...]
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in Column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor.
[...]
11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) 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 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; or
(b) is qualified for and is prepared to engage in employment in a designated occupation. |
8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint:
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
[...]
(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à-vis de ce facteur. [...]
11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant :
a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou
b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire. |
|
|
|
|
|
[11] The respondent, in the submissions of counsel, made reference to sections 6(1) and 8(1) of the Immigration Act, R.S.C. 1985, ch. I-2 (the "Act"), which text is reproduced below:
6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations.
[...]
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure.
[...]
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
ISSUES
[12] The present application raises the following issues:
1. Did the visa officer make a reasonable determination in deciding that the applicant did not have the necessary work experience to be assessed as a legal assistant?
2. Did the visa officer fail to observe procedural fairness by failing to notify the applicant of the concerns of the visa officer?
SUBMISSIONS
Applicant - Reasonableness of the determination that the experience was insufficient
[13] The visa officer did not properly examine the issues of experience or occupational factors in assessing the application. Had she done so, the applicant would have scored sufficient points to be able to obtain the visa. The visa officer did not advise the applicant regarding the requirement for experience or occupational factor credits as a legal assistant.
[14] Furthermore, documentary evidence was produced to prove experience as a legal assistant, and expert evidence could have been produced if requested to compare the qualifications of the applicant to those gained from similar work in Canada. The visa officer acted in bad faith by not asking questions relative to the areas that caused concern for the visa officer, by not allowing the applicant to disabuse the officer of any mistaken impressions and by relying on facts that did not exist in making the decision.
Procedural Fairness
[15] The visa officer must give the applicant the opportunity to satisfy that officer of the visa considerations and let the applicant know the officer's immediate impressions so that mistakes and misunderstandings can be corrected, so that the opinion of the visa officer can be refuted. The visa officer violated procedural fairness by not doing so in this case.
[16] The visa officer based her decision on stated facts that the applicant had not established herself to be proficient in English. Had the applicant been asked, evidence in this regard could have been pointed out to the respondent.
Respondent - Scheme of the Immigration Legislation
[17] It is up to the applicant to establish to the satisfaction of the visa officer that the applicant will be able to become successfully established in Canada. Sections 6(1) and 8(1) of the Act establish this requirement.
Reasonableness of the determination that the experience was insufficient
[18] The visa officer properly assessed the applicant as required by s. 8(1) or the Regulations, by applying the factors listed in Column I of Schedule I of the Regulations. The applicant failed to meet the criteria set out in the Regulations and therefore the visa officer did not err in law in refusing the application for permanent residence.
[19] As stated in Lim v. Canada (Minister of Citizenship and Immigration) (1991), 12 Imm. L.R. (2d) 161 (F.C.A.), an individual's qualification for a profession is a pure question of fact. Such a determination is within the mandate of the visa officer. As long as the refusal letter clearly shows that the visa officer considered the proper question and came to the conclusion that it is not unreasonable, the Court should not interfere.
[20] The applicant cannot argue that if the visa officer had awarded the points for occupational factor that should have been awarded, enough points would have been scored for the visa to be issued. The occupational factor score is non-discretionary and, in the case of the applicant, one is the maximum number of points available for a legal assistant.
[21] It is not up to the respondent to guess where the proof is that the applicant alleges was not considered by the visa officer. She did not specify in her submissions what proof she was referring to, except to say that there was proof of her experience which the visa officer did not consider.
[22] The visa officer maintained CAIPS notes during the interview. These notes support the submission that, contrary to the submissions of the applicant, the visa officer did consider the information provided in making her discretionary decisions with respect to the experience factor. There has been no error in this regard.
[23] The applicant failed to tell the visa officer that her work at the law firm where she claims to have gained experience as a legal assistant began with clerical tasks then progressed to those of a legal assistant. Furthermore, the duties listed under NOC 2411.1 ("Legal Assistant") are the duties against which the tasks of the applicant were measured. The applicant did not satisfy the visa officer that she had performed any of those duties. Even if she had performed those duties, she had performed them for less than one year; therefore, she could not have been awarded points in any event, for credit is only given for an entire year of experience, not for a part of a year.
Procedural Fairness
[24] The onus is on the applicant to satisfy the visa officer of the required information. The visa officer is not required to go on a fishing expedition to extract information from the applicant. The evidence does not support the applicant's claim that the visa officer did not inform her of the officer's concerns about the experience of the applicant.
[25] The CAIPS notes indicate that the visa officer gave the claimant ample opportunity to disabuse her of any mistaken impressions. The refusal letter issued four days after the interview indicated that the reasons for the applicant's refusal were explained to her at the interview.
[26] The respondent cites Yu v. Canada (Minister of Employment and Immigration) (1990), 36 F.T.R. 296 (F.C.T.D.), in which the Court affirmed that the process is not unfair simply because the visa officer does not stress to the applicant all concerns that she may have with respect to what the Act and the Regulations require her to evaluate. The applicant can access the Act and the Regulations, and it is up to her to establish that she meets the criteria that must be met for a visa to be issued.
[27] The Respondent concludes by noting that the version of events advanced by the visa officer is based on her CAIPS notes, which she made during the interview, whereas the applicant swore her affidavit "some months" after the interview. It was sworn on February 5, 2001, three months following their meeting.
ANALYSIS
[28] A review of the factors for which units of assessment were awarded - or not awarded, shows that there are no bases on which this Court could intervene. Before embarking on a factor by factor analysis of the determinations made by the visa officer, it should be noted that courts generally show a large measure of deference with regard to the decisions of visa officers.
[29] The Federal Court of Appeal considered the review of a visa officer in To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (F.C.A.) (QL). In the decision, that Court quoted the statement of the Supreme Court of Canada in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at pages 7 and 8:
[...] It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, were required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. [...]
[30] Reed J. expressed the view in Liu v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 251, (F.C.T.D.), [2000] F.C.J. No. 219 (T.D.) (QL), at paragraph 20, that the decision of the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, did not alter this rule:
I do not read the Baker decision as making a fundamental change in the applicable standard of review. The majority decision in that case stated that one applies a pragmatic and functional approach when deciding the standard of review to be used in any given case, an approach that had been articulated in several previous Supreme Court decisions. This approach leads to the weighing of a number of different factors. [...]
[31] In the case at bar, the visa officer made a very reasonable decision with regard to the evidence advanced by the applicant. The visa officer noted that the statements by the applicant seemed incoherent, and that the applicant needed some assistance and encouragement to get her to elaborate. For example, the visa officer was understandably confused as to how the applicant could go to school full-time, work full-time as a teacher and study law full-time. The applicant responded, after such prodding, that she attended to each of these commitments at different periods of the day. The reticence of the applicant gave rise to a reasonable suspicion on the part of the visa officer with respect to the credibility of the applicant. The visa officer was therefore entitled to draw a negative inference from this justifiably perceived lack of credibility.
[32] The visa officer was also justified in questioning the authenticity of the letters of reference tendered by the applicant. It is not plausible that a single employer would issue two letters of reference for substantially similar work, with one stating that the employment period was from June 15, 1998 onward and the other stating that the employment relationship began on June 16, 1998.
[33] If the credibility of the letters of reference were the difference between the acceptance and rejection of the applicant's claim for permanent residence, the argument could be made that an extraneous or irrelevant considerations were behind the decision of the visa officer. However, what the doubts that these letters raise as to their authenticity illustrate is that they are part of a more general pattern of doubtful oral and documentary evidence emanating from the applicant. Given these considerations, it was open to the visa officer to make the assessments that she made regarding work experience, the occupational factor and personal suitability.
[34] Notwithstanding the stated suspicions of the visa officer, it cannot be said that her credibility findings with respect to some documents and answers to questions coloured her entire review of the claim of the applicant. In a number of instances, the visa officer resolved the benefit of her doubts in favour of the applicant. Despite some concerns about the authenticity of the applicant's certificates offered as evidence of her education, the visa officer awarded the maximum number of units available for that level of education. The genuineness of the education documents was not as clearly questionable as that of the letters of reference, and the visa officer made a sound gesture of goodwill in awarding as many units of assessment for education as her discretionary power allowed.
[35] One unit was awarded for the occupational factor. It was given on account of the applicant being qualified for that occupation, and which was awarded notwithstanding a lack of a full year of experience. Other than that, there are no other factors for which the visa officer could have offered the generous evaluation that she allowed for the education component. In her affidavit, she explains clearly why her discretion to award points for each factor was limited in light of what the applicant was unable to demonstrate.
[36] With regard to procedural fairness, two issues arose. One is whether the visa officer should have made an attempt to seek out other related occupations for which the applicant may have been qualified and evaluate her with respect to those qualifications, even if she did not request consideration for those occupations. The other is whether the visa officer should have informed the applicant of the factors of which she remained unconvinced in order to give the applicant a chance to rectify her story prior to the end of the interview.
[37] In answer to the question regarding the search by a visa officer for related fields under which an applicant may be considered, this Court has held that the onus is on the applicant to satisfy the visa officer of his or her entitlement to the visa. It is up to the applicant to satisfy the pertinent information, and the visa officer is not required to conduct a probing, extensive search either to prod the applicant to reveal information that would assist the visa officer in determining whether the applicant qualifies in his intended occupation.
[38] This view is supported by the decision of this Court in Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (F.C.T.D.), in which Jerome A.C.J. made the following remarks at paragraph 7:
It is also important to emphasize that the Immigration Act, 1976 in section 6 requires that those seeking landing in Canada must satisfy an immigration officer that they meet the selection standards set out in the Immigration Regulations, 1978. It is clearly, therefore, the responsibility of the applicant to produce all relevant information which may assist his application. The extent to which immigration officers may wish to offer assistance, counselling or advice may be a matter of individual preference or even a matter of departmental policy from time to time, but it is not an obligation that is imposed upon the officers by the Act or the Regulations.
[39] Similarly, this Court noted in Yu, supra:
In my view, there is no ground for arguing unfairness in the process merely because the visa officer at an interview of the applicant does not stress all of the concerns he may have that arise directly from the Act and regulations that he is bound to follow in his assessment of an application. The Act and regulations pertinent to admission are available to applicants whose task is to establish to the satisfaction of the visa officer that they meet the criteria set out and that their admission to Canada would not be contrary to the Act.
[40] It is noted that, as in the present case, the applicant in Yu submitted that if she had been asked, she would have given the information that the visa officer required. However, inherent in the remarks quoted above is the widely recognized maxim that ignorance of the law is not an excuse. The applicant could have accessed the Act and the Regulations and, either on her own or with the assistance of counsel, reviewed it in order to understand what is required of her, and prepare valid evidence to meet that burden. It was not up to the visa officer to tell her whether or not she had met that burden, or even what degree of progress she was making in that direction. The applicant knows her own life experiences and qualifications better than the visa officer did before having met her. It is therefore incumbent upon the applicant to bring forward her best case.
[41] The process by which the claim of the applicant was considered was conducted in accordance with the principles of procedural fairness. In addition, the visa officer's decision cannot be held to have been made in bad faith, without regard to relevant considerations, or with undue consideration of irrelevant factors. This is not a case where the Court can or should intervene in a decision of a visa officer.
[42] For these reasons, this application is dismissed. Counsel did not suggest a question for certification. No question is certified.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No question is certified.
________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6443-00
STYLE OF CAUSE : SABIHA RANI and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : October 3, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE BEAUDRY
DATED : October 24, 2002
APPEARANCES :
Helen P. Luzius FOR THE APPLICANT
Amina Riaz
Department of Justice FOR THE RESPONDENT
SOLICITORS OF RECORD :
Helen P. Luzius FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario