Date: 20010417
Docket: IMM-3145-99
Neutral Citation: 2001 FCT332
BETWEEN:
KHALED KHATTAB,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[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"), heard in Toronto on August 21, 2000, brought by the applicant, Mr. Khaled Khattab, in relation to the decision of a Visa Officer rendered May 17, 1999, at the Canadian Embassy in Cairo, Egypt, refusing the applicant's application for permanent residence.
[2] The applicant seeks an Order quashing the May 17, 1999, decision of the visa officer and directing the application be re-considered by a different visa officer. The applicant also seeks costs on a solicitor-client basis.
Facts
[3] This application was initially refused by a visa officer in Cairo, Egypt, on May 22, 1996. On judicial review the Federal Court Trial Division determined that the visa officer had made a reviewable error in assessing the applicant under an occupational heading different from that for which he had applied, and had failed to inform the applicant of that basis for assessment. The application for permanent residence was then sent back for re-determination by a different visa officer at the Canadian Embassy in Cairo, Egypt. It is from the refusal on May 17, 1999, by the second visa officer of the application for permanent residence that this application now arises.
[4] The applicant was interviewed on August 2, 1998 with relation to the second consideration of his application.
[5] In rendering his decision, the visa officer relied on the Computer-Assisted Immigration Processing System ("CAIPS") for recording notes of his interview with the applicant. The applicant asserts that these notes are not an accurate reflection of what transpired at the interview.
[6] The principle issue on which the application for permanent residence was refused was that the applicant's claimed occupational duties were not considered to qualify within the description outlined in the Canadian Classification and Dictionary of Occupations ("CCDO"). That classification, at the time, was in the process of being replaced by the National Occupation Classification system under which the applicant was also assessed in accordance with the occupational categories deemed appropriate by the visa officer. The applicant made his application for permanent residence, under the independent category, on the occupational basis of a Manufacturer's Representative/Agent as included in the CCDO. It is the position of the visa officer that the duties of the applicant do not comply with the CCDO definition, as the applicant did not work on a strictly commission basis.
[7] At the time of the interview, the applicant claimed that he had been employed by the Olympic Group since 1992 on both a salary and commission basis as a Manufacturer's Agent. He was not listed as a registered employee with the Egyptian national employment programme until 1998. The documentation provided by the applicant, as he admitted, contained misleading information in that it was not an accurate reflection of the applicant's insurable earnings. The applicant explained this, and his lack of previous registration, by stating that it saved his employer money in not having to contribute to the programme, but that he had registered in 1998 to assist his immigration application.
[8] Prior to working for the Olympic Group, the applicant was self-employed between 1989 and 1992. During this time he said he had represented a number of companies in facilitating the sale of their products. It is from this period that the greatest controversy arises.
[9] As part of the documentation provided at the interview, the applicant submitted a list of all the companies, their addresses and the specific products he represented during the period of his self-employment as a Manufacturer's Agent. The visa officer undertook to confirm the applicant's employment and job descriptions. To assist in the confirmation process, the applicant presented numerous letters of reference but no employment contracts or pay stubs. There is disagreement as to whether an employment contract for the applicant's current position was offered and refused by the visa officer.
[10] In attempting to ascertain the veracity of the applicant's employment claims, the visa officer made a number of telephone inquiries and on-site visits. As a result of his inquiries, the visa officer believed that a number of the post-interview documents provided by the applicant were fabrications, particularly with respect to claims that the applicant had worked for two companies, Love Lofe and Johnson Wax. There was also some question whether the applicant had ever worked for Electronica Stores, as he originally claimed, since the initial information obtained by the visa officer contradicted the applicant's statements.
[11] The visa officer informed the applicant of his suspicions regarding the authenticity of the documents and information provided, and the applicant submitted further documentation and explanation in rebuttal.
[12] After approximately eight months of corresponding and providing further information, the applicant, through counsel in a letter dated May 5, 1999, expressed the concern that "a pattern of delay and questionable investigations" had prejudiced his right to the fair adjudication of his application. Thus, he requested a transfer of his application. On May 16, 1999, the transfer request was refused on the basis that the visa officer had concluded his investigation and was able to render a decision. By letter dated May 17, 1999, the visa officer informed the applicant that his application for permanent residence had been refused.
[13] The decision was based on the ground that the job descriptions provided by the applicant were not included within the designated CCDO classifications under which he had applied and no experience could then be attributed to the applicant during the assessment process. As a result, the applicant received insufficient units of assessment to qualify for immigration to Canada under s-s. 19(2)(d) of the Act. Moreover, the visa officer stated that because the applicant had submitted, what the visa officer believed to be falsified documents, this also brought him within the context of inadmissible persons under s-s. 19(2)(d) in conjunction with s-s. 9(3) of the Act. No argument in hearing this application was directed to the latter ground and it is not dealt with in these Reasons.
Submissions of the Applicant
[14] The applicant asserts that he has always been employed, either as an employee or a self-employed agent, as a Manufacturer's Representative/Agent. He submits that where he was not compensated strictly by way of commission or a pre-determined percentage of a discount price, he was remunerated on a combined basis of salary and commission.
[15] It is asserted on behalf of the applicant that the visa officer committed a reviewable error in failing to give credence to the applicant's documentary evidence that was tendered in response to the allegations of falsified documentation. This is especially so where the findings of the visa officer are in direct contradiction to the recollections of the applicant and the documentation provided. Therefore, the findings of the visa officer are inconsistent with the evidence before him.
[16] Furthermore, the argument was made that the applicant is the "last remaining family member" in Egypt and, therefore, his application should be considered on humanitarian and compassionate grounds. It was urged during argument that the visa officer applied the wrong test and relied on irrelevant considerations in reaching the conclusion that the applicant could not be considered with respect to that policy.
[17] Moreover, the applicant submits the visa officer was under an obligation to transfer the application when requested prior to rendering the decision. It is the applicant's position that this obligation was clear considering the concerns regarding delay and prejudice that had been expressed.
[18] The applicant seeks an Order quashing the decision to refuse the applicant's application for permanent residency and sending the application back for re-determination by another visa officer.
Submissions of the Respondent
[19] Based on the affidavit of the visa officer, the respondent submits that the primary reason for refusing the applicant's application for permanent residency centres on the inability to meet all the requirements under the CCDO for a Manufacturer's Representative/Agent.
[20] The visa officer asserts that his statutory discretion was exercised in good faith and in accordance with the principles of natural justice. It is urged, therefore, the decision to refuse the applicant should be given deference on judicial review.
[21] With respect to the issue of falsified documentation, the respondent urges that the visa officer's extensive efforts to verify the applicant's letters of reference and the discrepancies discovered support the conclusion that the documentation was not reliable. Nor was an error committed in concluding that the applicant had failed to explain or account for these discrepancies. Moreover, no error was committed in ascertaining that the applicant's employment failed to meet the requirements of the CCDO.
[22] The respondent submits that consideration as the "last remaining family member" only applies to those dependent family members who do not satisfy the strict definition of family set out in the Family Class Regulations. It is the position of the respondent that even if the applicant might qualify on those grounds, the visa officer correctly assessed the primary consideration with respect to this policy, that is whether the applicant has considerable difficulty in meeting financial or emotional needs without the support and assistance of the family unit that migrated to Canada.
[23] The respondent seeks an Order dismissing this application.
Analysis
[24] In light of the guiding decisions of Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, it is recognized that discretionary decisions of immigration officials ought to be afforded considerable deference on judicial review.
[25] The Federal Court of Appeal, in To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, determined that the appropriate standard of review for discretionary decisions of visa officers in relation to immigration applications is the same as that outlined by the Supreme Court of Canada in Maple Lodge Farms, supra. At pages 7-8 of Maple Lodge Farms, supra, Justice McIntyre stated:
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, where 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.
[26] I am of the same opinion as Madam Justice Reed in Liu v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 251 (T.D.), where she states: "I do not read the Baker decision as making a fundamental change in the applicable standard of review," at least in relation to administrative discretionary decisions. Further, Madam Justice Reed commented at paragraph 21:
Throughout the Baker decision, there are passages that indicate that the immigration officer's decision must be reasonable, that the officer must exercise his discretion in a reasonable manner, with consideration given to the particular circumstances of the case.
[27] In Baker, supra, Madam Justice L'Heureux-Dubé, for the Supreme Court of Canada, elaborated the application of the standard of review appropriate in cases of discretionary decisions. In part, she wrote, at pages 55-56:
... the pragmatic and functional approach takes into account considerations such as the expertise of the tribunal, the nature of the decision being made, and the language of the provision and surrounding legislation. It includes factors such as whether a decision is "polycentric" and the intention revealed by the statutory language. The amount of choice left by Parliament to the administrative decision-maker and the nature of the decision being made are also important considerations in the analysis. The spectrum of standards of review can incorporate the principle that ... the legislature has demonstrated its intention to leave greater choices to decision-makers than in others, but that a court must intervene where such a decision is outside the scope of the power accorded by Parliament.
... The pragmatic and functional approach can take into account the fact that the more discretion that is left to a decision-maker, the more reluctant courts should be to interfere with the manner in which decision-makers have made choices among various options. However, though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.
[28] With respect to the application of the CCDO, I am of the opinion that the strict adherence to the description of the occupation of Manufacturer's Representative/Agent relied on by the visa officer, on which the applicant was primarily refused, is an error of law. The visa officer maintained that the duties performed by the applicant during the course of his employment, in conjunction with the lack commission remuneration, failed to satisfy the requirements described by the CCDO for the considered occupation. It has been established, however, that a strict application of the requirements that adversely affect an applicant's assessment may fetter the visa officer's discretion, which is to be exercised reasonably in the interpretation of the CCDO descriptions.
[29] As was stated by Mr. Justice Cullen in Muntean v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 12 at para. 18 (T.D.):
I agree with the applicant that job descriptions in the CCDO should be broadly construed and that an applicant need not perform all of the tasks in the description to qualify in a particular occupational category. If a visa officer mechanically adhered to the CCDO descriptions and demanded that an applicant has performed each described job duty, it could be said that the visa officer would be fettering his or her discretion.
This position was cited with approval by both Mr. Justice McKeown in Nunes v. Minister of Citizenship and Immigration, (April 9, 1997), IMM-2749-96, whereby he held that a visa officer need not strictly adhere to the occupational definition contained in the CCDO, and by Mr. Justice Muldoon in Braganza v. Canada (Minister of Citizenship and Immigration) (1998), 146 F.T.R. 239 (T.D.).
[30] It is noted that the description contained in the CCDO states that a Manufacturer's Agent works "on a commission basis," however there is nothing to indicate that this is the exclusive form of compensation acceptable for the occupation. The CCDO description itself reads:
Sells single, allied, diversified or multi-line products, on commission basis, to wholesale, retail and other establishments for one or more foreign or domestic manufacturers:
Performs duties described in the definition for Unit Group 5133, COMMERCIAL TRAVELLERS. Specializes in selling products as agent for manufacturing companies. Visits manufacturers to persuade them to sell their products through his services. Co-ordinates sales program for products handled.
May prepare advertising brochures and other literature. May be designated according to type of products sold; for example, Food Broker.
[31] In the May 17, 1999, letter of refusal, the visa officer states that "the definition specifies [Manufacturer's Agent] is a free lance individual who is not an employee but represents one or more manufacturers strictly on a commission basis." In my opinion, by narrowly interpreting the description set out in the CCDO, and requiring that the applicant be remunerated exclusively by commission earnings to qualify within the classification of a Manufacturer's Representative/Agent, the visa officer fettered his discretion and committed a reviewable error.
[32] The applicant has presented a number of documents that support his claim that he often worked for combined remuneration based on both salary and commission. The visa officer assigned little value to the documents presented to rebut the negative inferences he had drawn from his independent inquiries.
[33] With respect to the allegation of falsified documents, I find that the visa officer exercised his discretion in contradiction to the principle enunciated by Mr. Justice Campbell in Lun v. Canada (Minister of Citizenship and Immigration) (1998), 41 Imm. L.R. (2d) 300 (T.D.). In that decision, Campbell J. held that a visa officer must reach a decision based on all the material available. It is apparent from the tribunal record that the visa officer not only failed to give credence to the explanations offered for the discrepancies he had perceived in the applicant's employment record and the supporting documents submitted on corporate letterhead, he also failed to acknowledge that the applicant had been offered a position as a Product Representative in Canada. No reference was made to that offer in assessing the applicant's eligibility under the CCDO, although he had provided the letter of offer as evidence of that opportunity in Canada.
[34] There is no indication in either the refusal letter or the visa officer's affidavit that the job offer or all positive letters of reference were considered in the final determination. This is especially reflected in correspondence from the visa officer to the applicant which stated:
I believe the documents from [Love Lofe and Johnson Wax] are false, in that you have never been employed by the above companies. You were advised of this by letter dated 25 March 1999 and you were allowed a period of six weeks in which to submit further evidence to substantiate your alleged work history. To date you have provided no documentation which would change my opinion that the documents do not relate to your employment.
Further evidence was supplied by the representatives of Love Lofe and Johnson Wax by letters dated April 28, 1999, and May 4, 1999, respectively, which were received by the visa office, but this was not referred to by the visa officer. In the circumstances, I am persuaded that the visa officer's decision was made without full consideration of all the available relevant evidence.
[35] The "last remaining family member" is a humanitarian and compassionate policy that the applicant urges ought to have been considered. In its memorandum of fact and law the respondent states that "the primary consideration is, and continues to be, that the Immigrant has considerable difficulty in meeting his/her financial or emotional needs without the support and assistance of the family unit who is migrating to, or is already in, Canada." The policy is intended to benefit dependent family members, and is not limited to dependent minor children. In this case the visa officer found that the applicant was not without support of members of his extended family in Egypt, even if his immediate family had all emigrated to Canada.
[36] With reference to the failure, upon request, to transfer the applicant's file because of the lengthy delay in obtaining a decision, I note that the precedent on which the respondent relies, Krachenko v. Minister of Citizenship and Immigration (February 19, 1999), IMM-642-98, is not applicable. The decision of Mr. Justice Blais in Krachenko concerned the jurisdiction of the Federal Court Trial Division to order that a closed file be transferred and reopened with a direction to reassess the applicant. The Court found it did not have jurisdiction to do so. The circumstances there were, in my view, different from this case.
[37] While the applicant raises the issues of failure to consider him as the "last remaining family member" in Egypt, and the failure to transfer his file after he had requested this, there is no need to resolve the differences between the parties over these issues, since I determine this application on other grounds.
Conclusion
[38] In consideration of the standard of review enunciated in Maple Lodge Farms, supra, and after considering the submissions of both the applicant and the respondent, I find that the visa officer committed reviewable error. In failing to consider all the relevant evidence, namely the rebuttal documentation that had been submitted to meet his concerns, the officer erred in law. In applying the CCDO classification in a manner that fettered his discretion by requiring that the remuneration of a Manufacturer's Agent be based exclusively on commission earnings, the visa officer rendered an unreasonable decision.
Order
[39] The application is allowed. The decision of the visa officer to refuse the applicant's application for permanent residence under the independent class as a Manufacturer's Representative/Agent is set aside, and is sent back for reconsideration by a different visa officer, on the basis of the documentary evidence already submitted by the applicant, and an interview as the visa officer may determine is appropriate.
[40] Under the Federal Court Immigration Rules, 1993, Rule 22, costs are not awarded in immigration cases in the absence of special reasons. No such reasons exist here and no costs are awarded.
(Signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
April 17, 2001