Date: 20040324
Docket: IMM-1515-03
Citation: 2004 FC 440
Ottawa, Ontario, this 24th day of March, 2004
Present: The Honourable Justice James Russell
BETWEEN:
BASSAM FAWZI FRANCIS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of an officer ("Officer") at the Canadian Consulate General in Buffalo, New York dated February 3, 2003 ("Decision") refusing the application of Bassam Fawzi Francis ("Applicant") for permanent residence.
BACKGROUND
[2] The Applicant is a 31-year-old citizen of Lebanon. Between 1999 and 2002 he received three temporary employment authorizations to work as a baker for Royal Pita Bakery Inc. in Windsor, Ontario.
[3] The Applicant subsequently applied for permanent residence as a baker under National Occupational Classification ("NOC") 6252. He was assessed under the former Immigration Act and so required 70 units of assessment to be granted permanent residence.
[4] The Applicant was employed at the Kasr El-Delb Restaurant in Bikfaya, Lebanon from 1989 to November 1991. Subsequently, he was employed at Abou Fadi Bakery in Dora, Lebanon from January 1992 to October 1999. He entered Canada as a specialty pita bread baker under an Employment Authorization which was duly validated by Human Resource Development Canada. His employer was Edgar Francis, the owner of Royal Pita Inc., a company which specializes in the making of a variety of Middle Eastern pita breads, including stone oven baked pita bread.
[5] Edgar Francis is a city counsellor and lawyer in the City of Windsor. The Applicant notes that, despite the shared surname, there is no blood relation between the Applicant and Edgar Francis.
[6] On April 9, 2001, Safa Nissan Dawood purchased Royal Pita Bakery Inc. from Edgar Francis. The Applicant was retained as a specialty pita bread baker on a full-time basis, 40 hours per week, on the evening shift at a weekly salary of $360.00.
[7] The Applicant notes that he has all of his immediate family in Canada, and while in Canada he has lived with his parents. He notes that his parents bought a large home in order to accommodate him and his wife. In addition, his father signed an Affidavit of Support so that his son would not be a burden on any provincial or federal social assistance program.
[8] The Applicant also indicates that he has worked in Canada for three years and is fluent in English. He has become assimilated within Canadian culture and active within a Christian church as well as a respected member of his local community.
DECISION UNDER REVIEW
[9] The Applicant indicated on his application that he had arranged employment in Canada with "Fawzi Francis & Family and Royal Pita Baking Company," his "Father and Employer."
[10] Also on file in support of his application for permanent residence was a letter dated November 20, 2000, signed by "Fawzi Francis. Owner." This letter stated that the Applicant, "our son," had worked at the family bakery in Lebanon from 1992 to 1999. The letterhead indicates that the Applicant's father ran the "Abou Fadi Bakery" and the address was given as 3156 Suffolk St. Windsor, Ontario N8R 1P2.
[11] The Applicant submits that he requested the Field Operating Support System ("FOSS") notes related to his case through Mr. Tim Mayville, his counsellor at the time. The Applicant says there were several points of misunderstanding revealed in the FOSS notes. He notes that the FOSS notes indicate that the employer is the Applicant's father, Fawzi Francis. The Applicant says that, on the contrary, he immigrated to Canada under an Employment Authorization and the employer was Edgar Francis, the owner of Royal Pita Bakery Inc. Fawzi Francis never owned Royal Pita. The Applicant submits that he sent a letter to the Officer clarifying this point, along with substantiating affidavits from his employers.
[12] The Applicant submits that the FOSS notes also indicate that Royal Pita does not appear in the Yellow Pages, even though the bakery does indeed appear in that directory. The Applicant submitted numerous documents in support of his position. The FOSS notes indicated as follows:
... have attempted to verify employer of applicant - does not appear in yellow pages.
[13] The Applicant notes that, despite the fact that Client Authorizations and Termination of Current Representative notices were sent to the Officer, the Officer continued to correspond with Mr. Tim Mayville, the Applicant's former immigration counsellor. The Applicant notes that the letter of denial from the Officer was sent to Mr. Mayville and not the Applicant's current lawyer. Letters were also sent to the Officer asking him to confirm receipt of the twenty page submission sent to him. The Officer never confirmed receipt of these submissions.
[14] The Applicant notes that the CAIPS notes concerning his Application indicate the following:
... applicant granted POS discretion based on fact he would be working in his father's business - at interview it was apparent that his father never ran a bakery in Canada. It appeared to me and was explained to the applicant that this appeared to be a deliberate misrepresentation. Therefore, POS null and void.
[15] The Officer awarded the Applicant zero points for experience.
[16] Upon first review of the file, it became apparent that the Applicant would not obtain sufficient units of assessment to meet the immigration selection criteria for the occupation of Baker, NOC 6252. Based on the information noted above, and on the initial understanding that the Applicant was to be employed by his father in Canada, the Applicant was initially recommended positive discretion.
[17] The Officer reviewed the application for permanent residence and noted that the Applicant had received a diploma in furniture carpentry. As a result, the Officer called an interview to properly assess the Applicant's qualifications and experience as a baker.
[18] Prior to the interview and in response to an inquiry by a local federal Member of Parliament, the Officer attempted to contact the Applicant but had difficulty in locating him either at home or at work. Royal Pita Bakery initially told the Officer that the Applicant did not work there, but subsequently said that he did. The Officer spoke to the Applicant on November 19, 2001, and the Applicant appeared not to know much about his place of employment, including the telephone number of his employer.
[19] In March and April of 2002, the Officer received submissions from counsel for the Applicant which included letters of support and information regarding the Applicant's relationship with Royal Pita Bakery. Counsel explained that the Applicant's father and employer, Royal Pita Bakery, were not one and the same.
[20] The Officer convoked an interview with the Applicant on June13, 2002 and asked him whether Royal Pita was a business that belonged to the Applicant's family. The Applicant stated that his father had never owned or worked at Royal Pita and that it was not a family business. The Officer also asked the Applicant if his father had employed him. He stated that he had never told anyone that he was employed in Canada by his father. He stated that any error regarding the ownership of Royal Pita was likely due to the fact that the owner of Royal Pita was also named Francis, although he was unrelated to the Applicant.
[21] The Officer produced the letter of support signed by the Applicant's father on November 20, 2000, which stated that the Applicant had worked for him as a baker. The Officer pointed out the letterhead (Abou Fadi Bakery) and the address (3156 Suffolk St., Windsor, Ontario N8R 1P2) and asked the Applicant to explain if this meant that he was working at his father's bakery in Windsor. The Applicant was unable to respond.
[22] When the Officer asked why he received such a low salary from his employment at Royal Pita for the year 2000, the Applicant responded that Royal Pita had only employed him part-time because business had been slow. The Officer noted that the Applicant was brought to Canada on a temporary employment authorization to train other people in pita bread making and that it was unusual that Royal Pita would have made such efforts only to employ him part-time.
[23] The Officer also asked the Applicant several questions about pita bread making. The Applicant's answers were vague and imprecise.
[24] At the conclusion of the interview, the Officer informed the Applicant that he was not satisfied that he had the required qualifications and experience as a baker. The Officer also informed the Applicant that he was concerned that he may have misrepresented the facts on his application to enter and remain in Canada. The Officer told the Applicant that he was particularly concerned that his application for permanent residence had been recommended for positive discretion on the basis that the Applicant was employed by his father in a family business when this was not the case.
[25] The Officer provided the Applicant with an opportunity to submit further information to clarify the facts of his case and respond to his concerns. The Officer did not receive any further information regarding the Applicant's qualifications or experience. The Officer was still not satisfied that the Applicant had the required qualifications and experience as a baker. The Officer also remained unsatisfied that the Applicant had not misrepresented himself. The Applicant was therefore not awarded any units of assessment for experience in the occupation of baker and for personal suitability and the application was refused.
ISSUES
[26] The Applicant raises the following issues:
Did the Officer err in law when he gave the Applicant 0 points for Arranged Employment when the Applicant has three Validated Employment Authorizations from Human Resource Development Canada?
Did the Officer err in his application of section 11(1) of the Immigration Regulations in not awarding the Applicant any points for "experience" when the Applicant has over a decade of experience as a baker?
Did the Officer err in law when he found that the Applicant did not have the required qualification of a baker because he misconstrued and ignored evidence and made erroneous findings of fact without regard to the evidence before him and in failing to properly understand the evidence?
Did the Officer err in his application Schedule 1 of the Immigration Regulations wherein the 9 factors in selection are set out in that his assessment of the Applicant's units is erroneous?
ARGUMENTS
Applicant
[27] The Applicant notes that he was granted three employment authorizations from Human Resource Development Canada. The first employment authorization was valid from November 4, 1999 to August 11, 2000, the second employment authorization was valid from August 10, 2000 to August 15, 2002, and the third employment authorization was valid from September 27, 2001 to September 27, 2002. The Applicant was admitted to Canada under the Employment Authorization and worked as a baker for Royal Pita Bakery Inc.
[28] The Applicant says that he should have received 10 units for Arranged Employment rather than the 0 units that the Officer gave him. These additional 10 units would have raised his score to 70 rather than 60, the required points at the time of the application were 70. The Applicant submits that the Officer ignored this important part of his case, despite ample evidence before him, including two affidavits from the employers themselves, Edgar Francis, a well-respected City Counsellor in Windsor and a lawyer himself, and from Safa Dawood. The Officer thereby erred in law and committed a reviewable error.
[29] In addition, the Applicant submits that he has more than a decade of experience as a baker. The Applicant worked at Kasr El-Delb Restaurant in Bikfaya, Lebanon from February 1990 to November 1991. Subsequently, he worked as a baker at his father's bakery in Dora, Lebanon from January 1992 to October 1999. Finally, from April 1999 to September 2002, the Applicant had an Employment Authorization as a baker at Royal Pita Bakery Inc. Overall the Applicant had approximately twelve years experience as a baker. However, the Officer awarded him 0 units for experience. The Applicant says he should have received 6 units for experience because, under the Employment Training Factor or ETF, 15 points are awarded for a baker, and 6 points are awarded for experience. The Applicant submits that the Officer erred in law in misconstruing evidence, in misinterpreting evidence properly before him, in making erroneous findings of fact without regard to the evidence before him and in failing to properly understand the evidence.
[30] Further, the Applicant submits that he should have received 1 unit under the "Occupation Factor" rather than the 0 units that the Officer assessed.
[31] The Applicant was awarded 0 points under "Personal Suitability". However, the Applicant submits that he demonstrated adaptability to the Canadian way of life in that he worked in Canada for three years as a responsible, dependable, honest and reliable baker. His employer, Safa Dawood, was ready and able to hire him on a permanent basis because he was extremely pleased with the Applicant's work ethic and professional performance. The Applicant submits that he exhibited motivation learning the English language while he worked in Canada. Also, he worked extremely hard and never collected any government assistance. The Applicant also submits that he demonstrated initiative and resourcefulness in that he became financially independent and, in fact, assisted his parents financially and otherwise. For example, he assisted his parents with landscaping and gardening.
[32] The Applicant lived with his parents and one sister, Samar. His intention was to bring over his wife from Lebanon so that they could all live together. The Applicant's family is tight-knit. The parents and three of their children are Canadian Citizens. Two of them, Rita and Samar, reside in Canada, and one son, Fadi, resides in the USA The Applicant is the only remaining child left in Lebanon. The Applicant has a great deal of support in terms of family. The maximum number of units of assessment under Personal suitability is 10. The Applicant received 0. Clearly, the Applicant should have been awarded some units under this category and the fact that none were awarded indicates an inherent unfairness in this case.
[33] The Applicant submits that the CAIPS notes reveal that none of the March 21, 2002 submissions were ever read or reviewed by the Officer. The Applicant says that, for example, the CAIPS notes indicate as follows:
In addition, applicant granted positive discretion based on fact he would be working in his father's business. At interview it was apparent that his father never ran a baker in Canada. It appeared to me and was explained to the applicant that this appeared to be deliberate misrepresentation. Therefore, positive discretion null and void.
[34] The Applicant says that, clearly, none of the submissions or affidavits were read in this case because they clarified the misunderstanding on the part of Immigration officials that the Applicant's father ran a bakery in Canada when, in fact, he did not. The Applicant himself stated in his affidavit that his father never ran a bakery in Canada. Edgar Francis, the Applicant's first employer, stated the same in his affidavit. The Applicant was not attempting to misrepresent his case. On the contrary, the Officer made erroneous findings of fact without regard to the evidence before him.
[35] In sum, the Applicant says there is ample evidence that he was treated unfairly and without regard to relevant documentary evidence.
Respondent
Experience and Arranged Employment Properly Considered
[36] The Respondent submits that, unless the Applicant can demonstrate that the Officer ignored relevant evidence or considered irrelevant factors, the Officer's Decision is subject to a high level of deference.
[37] The Respondent notes that the Officer's CAIPS notes, his affidavit, and the Certified Tribunal Record clearly reveal that the Officer took all of the evidence into account and that it was reasonably open to him to accord little weight to the Applicant's evidence, including the letters of support since they do not speak to the duties that the Applicant was required to perform. This was a relevant inquiry (Kianfer v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1061).
[38] Moreover, the Respondent submits that simply because the Applicant was issued three employment authorizations, does not automatically demonstrate that he could perform the duties required under the NOC. The Applicant was formally trained as a carpenter. At the interview, the Applicant was unable to answer basic questions about pita bread making.
[39] It was open to the Officer to give little weight to the Applicant's assertion or his letters of support as it was questionable that he, in fact, baked bread for Royal Pita Bakery, let alone trained others in pita bread making. Previous employment authorizations, issued on a temporary basis may be relevant, but they are not determinative in granting permanent residence. This is particularly the case because the Officer is not permitted to look behind the employment authorizations or at the basis for which they were issued.
[40] The Respondent submits that Applicant has provided no evidence to demonstrate that the Officer ignored these authorizations or any other evidence. The Officer questioned the Applicant about the authorizations at the interview in the context of assessing his knowledge of pita bread making. It was also within the Officer's discretion to assess the Applicant's experience on the basis of his representations at the interview and to assign less weight to his written documentation.
[41] The Respondent further submits that the Applicant was also unable to resolve the Officer's concern regarding his arranged employment, particularly the letter of support from his father dated November 20, 2000. The Officer provided the Applicant with several opportunities to respond to his concerns. Based on all of the evidence before him, the Respondent submits that the Officer did not err by awarding the Applicant 0 units for experience and for arranged employment.
Personal Suitability Property Assessed
[42] The Applicant was awarded 0 units for personal suitability because the Officer concluded that he had misrepresented his qualifications. During the course of the interview, the Officer informed the Applicant that he was developing a negative impression of the Applicant as certain concerns arose. He provided an opportunity for the Applicant to respond to his concerns.
[43] The Officer did not rely on irrelevant factors or apply the wrong legal test when determining the Applicant's personal suitability. Personal suitability is a highly discretionary determination that is open to considerable deference. Unless the Decision is made without regard to the evidence, this Court should not intervene. The Applicant is unable to demonstrate that the Officer ignored any evidence whatsoever (Rudani v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1922 (T.D.)).
ANALYSIS
[44] This is a strange application. A review of the whole record reveals that there is significant evidence to support the Applicant's version of his past experience and anticipated success at integration into Canadian society as a baker.
[45] Mistakes have been made by the Applicant and his people during the progress of his application. One such mistake was entering "FAWZI FRANCIS & FAMILY AND ROYAL PITA BAKING COMPANY" in section 5 of his application and then "FATHER AND EMPLOYER" in section 6. It created the impression that his father employed him at the Royal Pita Bakery. The Applicant has gone to considerable lengths to clear up this false impression and says that it was the result of grammatical error in completing the form. Fawzi Francis is his father and Royal Pita is his employer. This sounds convincing, especially when read in conjunction with supporting affidavits that were prepared by those who know the Applicant in Canada.
[46] However, there is one matter that is not explained in the record and that caught the attention of the Officer. There is a letter on file dated November 20, 2000, which is written under the letterhead and gives the address of the Abou Fadi Bakery in Windsor, Ontario. The letter says "This is to confirm that Mr. Bassam Francis; our son; (sic) has worked for us at the family bakery mentioned above from 1992 through 1999." The letter is signed by the "owner" and his name is given as Fawzi Francis. Fawzi Francis is the Applicant's father.
[47] When the Applicant came to Canada in November 1999, he was employed by Royal Pita Bakery which was owned by Edgar Francis (no relation) and his brother Roger until it was purchased by Safa Nissan Dawood from the Francis brothers.
[48] Fawzi Francis has never been employed at the Royal Pita Bakery.
[49] In the Officer's affidavit filed in conjunction with this application, he says certain things that make this situation even more of a mystery:
3. The original assessment of the application was made on April 9, 2001 by the Case Analyst Elisa Tatro. I reviewed the CAIPS notes entered by Ms. Tatro, which stated that the Applicant was currently employed in Canada by his father's bakery. I also reviewed the CAIPS notes entered by the reviewing Visa Officer, Raymond Gabin on April 11, 2001, who noted that the Applicant's employer and father, Fawzi Francis, had come to Canada in 1996 and wished that his son work in the family's bakery in Canada, since he had worked for their bakery in Lebanon from 1992 to 1999.
4. It appeared that Ms. Tatro and Mr. Gabin based their assumption that the Applicant would work at his father's bakery in Canada on two material facts. First, the Applicant had indicated on his IMM 8 Application for Permanent Residence in Canada at question 5 that the following people would assist him after arrival: "Fawzi Francis & Family and Royal Pita Baking Company" and at question 6 of the same application form, that the relationship to the Applicant of the person named in question 5 is "Father and Employer." This information is contained at page 100 of the Certified Tribunal Record.
5. Second, there was a letter on dated November 20, 2000 - found at page 119 of the Certified Tribunal Record - signed by "Fawzi Francis, Owner". This letter stated that the Applicant, "our son", had worked at the family bakery in Lebanon from 1992 to 1999. The letterhead indicates that the Applicant's father ran the "Abou Fadi Bakery" and the address was given as 3156 Suffolk St., Windsor, Ontario, N8R 1P2.
6. This information was presented to Paul Whelan, an immigration officer, who recommended positive discretion in consideration of the Applicant's application, since it was apparent that on first review, the Applicant did not obtain sufficient units of assessment to meet the immigration selection criteria.
...
13. At the interview, I asked whether Royal Pita was a business that belonged to the Applicant's family. The Applicant stated that his father had never owned or worked at Royal Pita and that it was not a family business. I also asked the Applicant if his father had employed him. He stated that he had never told anyone that he was employed in Canada by his father. He stated that any error regarding the ownership of Royal Pita was likely due to the fact that the owner of Royal Pita was also named Francis, although he was unrelated to the Applicant.
14. I showed the Applicant the letter of support signed by his father on November 20, 2000, which stated the applicant had worked for him as a baker. I pointed out the letterhead, "Abou Fadi Bakery", and the address, "3156 Suffolk St., Windsor, Ontario, N8R 1P2". I asked the Applicant to explain if this meant that he was working at his father's bakery in Windsor. The Applicant did not respond and appeared nervous. I also asked him to explain the entries at questions 5 and 6 of his IMM 8 Application for Permanent Residence in Canada. I asked him to explain what these entries meant. The Applicant again did not respond.
[50] At first blush, it might look as though there was some kind of deliberate misrepresentation being practised by the Applicant and/or his father. It is easy to see why immigration personnel formed the view that the Applicant would be working for his father in Canada as a baker.
[51] But the letter of November 20, 2000, says the Applicant was employed by his father at the Abou Fadi Bakery between 1992 and 1999 and these are the years when the Applicant was in Lebanon. And the Abou Fadi Bakery was in Lebanon. The difficulty is to explain why the letter of November 20, 2000, gives the address of the Abou Fadi Bakery as Windsor, Ontario. This matter is not explained directly in the materials submitted by the Applicant and it is easy to see why it made the Officer highly suspicious.
[52] If the family had wanted to create the impression that the Applicant would be working for his father at a bakery in Windsor, Ontario, when he came to Canada, it makes no sense that the letter of November 20, 2000, would say that he worked for his father between 1992 and 1999 (the years when he was in Lebanon) at the Abou Fadi Bakery which is in Lebanon. The mistake was not explaining to the Officer how the Windsor, Ontario address got into the letter. In fact, we still don't know.
[53] In my opinion, this mistake cost the Applicant the confidence of the Officer. Significant efforts were made to correct the impression that immigration officials had that the Applicant would be working for his father in Canada.
[54] It is true that, in the Decision, the Officer mentions other reasons why he doubted the Applicant had the experience as a baker that he claimed to have, but my review of the whole record suggests to me that the false impression created by the November 20, 2000, letter coloured everything and prevented the Officer from considering the other evidence before him on its merits. In fact, my conclusion is that an unfortunate mistake by Fawzi Francis in using a Windsor, Ontario address for a Lebanese company cost the Applicant his whole application.
This is unfortunate and to allow it to control the whole situation and prevent a young man from joining his family in Canada would be unfair and distinctly unCanadian.
[55] In legal terms, the mistake prevented the Officer (through no fault of the Officer) from considering the totality of the evidence and from considering highly relevant evidence when gauging the Applicant's experience, arranged employment and personal suitability.
[56] It would be unsafe to allow this Decision to stand because the mistake and its consequences render it patently unreasonable.
ORDER
THIS COURT ORDERS that:
1. This Application for judicial review is allowed and the matter is returned for reconsideration by a different officer.
2. There are no questions for certification.
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"James Russell" |
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JFC |
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1515-03
STYLE OF CAUSE: BASSAM FAWZI FRANCIS v. MCI
PLACE OF HEARING: Toronto, Ontraio
DATE OF HEARING: March 10, 2004
REASONS FOR ORDER: The Honourable Justice Russell
DATED: March 24, 2004
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor Windsor, Ontario |
FOR THE APPLICANT |
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Toronto, Ontario |
FOR THE RESPONDENT |