Date: 20020816
Docket: IMM-1397-01
Neutral citation: 2002 FCT 884
BETWEEN:
EL WALEED HAMED,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicant challenges, by way of judicial review, the decision of a visa officer denying him permanent residence in Canada, as an independent, in the intended occupation Economist Researcher (NOC 4162).
[2] Mr. Hamed was born in 1963 and is a citizen of Sudan. He obtained a Bachelor of Economics degree from Cairo University in 1988. He has a sister who lives in Canada. From August 1, 1991 until February 10, 1997, he was employed by the Bank of Sudan in the banking control and financial management section. In 1997, he went to work as a sales supervisor for a trading company dealing in motor vehicles.
[3] The applicant was interviewed by the visa officer on November 11, 2000 and by correspondence dated January 27, 2001, the visa officer informed Mr. Hamed that his application had been refused on the basis that he had failed to obtain any units of assessment for the experience factor in Schedule I to the Immigration Regulation, 1978, SOR/78-172, as amended (the Regulations). Subsection 11(1) of the Regulations operates as a bar to the issuance of a visa where an applicant fails to obtain any units of assessment with respect to experience. The application was additionally refused because the applicant obtained only 68 units of assessment. The minimum requirement is 70 units.
[4] The applicant poses two questions as allegations of error:
(1) Was the officer's finding that the applicant could not be awarded any points for experience as an Economist Researcher made without regard to the evidence?
(2) Did the officer err in awarding the applicant zero points in the experience factor despite having awarded the applicant full occupational demand units in the occupation factor for economist researcher?
Although the applicant's written submission also alleged an error with respect to the assessment of personal suitability, counsel abandoned this argument at the hearing.
Question One
[5] Regarding the units of assessment awarded for the experience factor, the applicant makes two arguments. First, he submits that the visa officer's decision contains a direct quotation from the "lead statement" in the NOC 4162 description therefore, the officer placed special weight on the statement. The "lead statement" is intended to serve as a brief overall description and should not be given any special weight. Relying on Hussain v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 203, the applicant submits that it is the duty of the visa officer to assess an applicant in accordance with the whole description of the occupation and this includes particular reference to the duties set out in the NOC description under the heading "Main Duties". Second, the applicant argues that the letter from the Bank of Sudan dated November 18, 2000 constitutes evidence that some of the duties performed by the applicant correlate to some of the NOC duties. In the written submission, he stated that the duties he performed, while employed at the bank, corresponded to 3 of the 10 duties listed in the NOC but that number was reduced to 2 at the hearing. The applicant argues that the visa officer was required to ascertain whether he had performed all or some of the duties specified in the NOC description. The reference to "all or some signifies that applicants will perform more than one but not necessarily all, and not just the 'lead statement' description, as set out in the officer's refusal letter".
[6] The respondent submits that in Lim v. Canada (Minister of Employment and Immigration) (1991), 121 N.R. 241 (F.C.A.), it was determined that whether an applicant is really qualified for an occupation listed in the NOC is a pure question of fact entirely within the mandate of the visa officer to resolve. The fact that the officer quoted the "lead statement" in his refusal letter does not imply the officer placed significant weight on that description. Rather, the officer was summarizing his position that the applicant had not performed a substantial number of the duties of an Economist Researcher. Additionally, the wording contained in the "lead statement" is also the precise wording contained in the first main duty listed in the NOC 4162. Relying on Farooqui v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 306, the respondent states that visa officers have the discretion to interpret the NOC giving greater weight to certain duties and responsibilities. The fact that not all of the duties in a NOC description need to be performed does not mean that the applicant's ability to perform some are not essential to an occupational assessment of his or her application. While the applicant asserts that the letter from the Bank of Sudan is demonstrative of the duties he performed, the respondent submits that visa officers have discretion when it comes to interpreting the occupation requirements as set out in the NOC. In this respect, the respondent cites Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262, wherein Evans, J., as he then was, stated that visa officers should be afforded considerable discretion both in determining whether an applicant satisfies the requirements for a given occupation and in interpreting the provisions of the NOC. Visa officers have a familiarity with and understanding of this document that is at least equal to, and will often exceed, that of a reviewing court.
[7] The visa officer deposes, in his affidavit, that he asked the applicant to describe his work experience. Mr. Hamed related that he worked as an economist for the Bank of Sudan for more than 6 years. He presented a letter from the bank which stated that he worked in banking control and financial administration as an inspector officer. When the visa officer drew the job description to the applicant's attention, he stated that as an inspector officer, his duties were to do economic research and write reports on the forecast of the economy for the bank. The officer asked if the applicant had any examples of his work but he did not. The applicant then presented the visa officer with his curriculum vitae that stated that he had been a member and reporter for a technical study committee during the course of his employment with the bank. At the interview, the applicant failed to provide any examples from his work experience demonstrating that he had performed the main duties of an Economist Researcher. Because the visa officer was not satisfied that the applicant had the required experience, he requested a detailed letter from his previous employer describing the duties performed and also some examples of reports or research papers completed during the course of his employment with the bank. The applicant did provide the letter from the bank. The letter did not mention that the applicant did economic research and the officer noted that the description of the applicant's duties, as contained in the letter, were identical, verbatim, to the duties listed in the curriculum vitae provided by the applicant one week before the letter was drafted. The applicant did not provide sample reports or research papers as requested by the visa officer. The visa officer stated that he "could not come to the conclusion that [the applicant] had at least one year of experience as an Economist Researcher" and he refused the application.
[8] I am not persuaded that the visa officer erred in his finding with respect to the units of assessment for the experience factor. It is clear, when regard is had to the refusal letter, the CAIPS (Computer Assisted Immigration Processing System) notes and the visa officer's affidavit, that the reason the application was denied was because the officer was not satisfied, on the evidence, that the applicant had performed the job duties which he said, in his curriculum vitae, that he performed. Specifically, his employment title was inspector officer; neither of the two letters from the bank indicated that the applicant worked in economic research; although requested to provide samples of the reports or research that he claimed to have completed, he did not do so; his duties at the bank, as delineated in the second letter, were identical to the duties the applicant himself listed on his curriculum vitae, prepared in advance of the letter. As stated earlier, the applicant himself was able to suggest performance of only 2 of 10 duties delineated in the NOC.
[9] The onus is on an applicant to satisfy the visa officer of the merits of the application. Here, when the applicant failed to so satisfy the officer at the interview, he was provided an opportunity to submit further documents. The applicant failed to produce the requested sample reports or papers. It is for the visa officer to assess the evidence and determine the weight to be assigned to it. I agree with Dawson, in Farooqui, supra, that a visa officer is entitled to conclude on a fair, broad reading of the whole of the [NOC] description that an individual does not have experience in the particular occupation. On the evidence before him, the determination made by the officer was entirely reasonable.
Question Two
[10] The applicant's second ground for review is that the visa officer erred in awarding the applicant zero points in the experience factor despite having awarded him one unit in the occupational demand factor for Economist Researcher. The applicant relies on the decision of Sharlow, J., as she then was, in Dauz v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 288, as the foundation for his argument as well as its application in Osman v. Canada (Minister of Citizenship and Immigration) (2000), 181 F.T.R. 304 and Kopyl v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 105. In Dauz, the visa officer's awarding zero units for the experience factor, after having awarded some units for the occupational demand factor, was found to be perverse on the basis that the award of any units with respect to the occupational demand factor recognized some experience in the occupation. If some experience was recognized, an applicant could not then obtain zero units for the experience factor.
[11] The respondent submits that the cases cited by the applicant are distinguishable. Here, the visa officer concedes that he made an error. Having concluded that the applicant did not have any experience in his intended occupation, the officer should have given the applicant zero points for the occupation factor. The visa officer deposes, in his affidavit, that the CAIPS automatically assigns points for occupational demand based on the NOC code entered. The officer forgot to change the number from one to zero in accordance with the guidelines provided in Operations Memorandum OP 00-16. The respondent submits that this error, readily admitted by the visa officer, is the distinguishing factor which renders the cases cited by the applicant inapplicable. Alternatively, the respondent argues that if the Court concludes that there was a reviewable error, then the error committed was not material to the decision to refuse to issue the visa and therefore the Court should decline to quash the visa officer's decision. The respondent relies on Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48 (F.C.A.) in support of the alternative argument and notes that all of the decisions relied upon by the applicant were decided prior to Patel.
[12] Regarding the respondent's submission, I consider that the law is settled, on the basis of the aforementioned cases, that where a visa officer awards any unit(s) of assessment in the occupational demand factor and zero units of assessment in the experience factor, there is a reviewable error. The respondent has not persuaded me differently. However, that does not resolve the respondent's alternative argument.
[13] In each of the cases referred to, there was uncertainty regarding the visa officer's assessment of the experience factor. In each case, the justice rendering the decision was not satisfied that the visa officer's assessment of the experience factor was reasonable. In Dauz, there was evidence before the visa officer that the applicant had some relevant experience in the intended occupation. In Kopyl, the Court was urged to conclude that the visa officer properly determined that the applicant had no relevant experience despite the fact that no affidavit was submitted by the visa officer. In Osman, Reed, J. was not impressed by the submission describing the automatic assignment of units for occupational demand by the CAIPS. However, in Osman, there was also an issue relating to the educational requirement as well as an admission by the visa officer that the applicant did have experience in the intended occupation.
[14] Here, having carefully reviewed the documentation contained in the records as well as the submissions of counsel, I have concluded that the assessment regarding experience was reasonable. Because subsection 11(1) precludes visa officers from issuing visas to applicants who fail to earn at least one point in the experience factor, the applicant cannot obtain a visa. Hence, even though there is a reviewable error on the face of the decision, the error is not material to the result.
[15] Having found that the error, albeit reviewable, was not material to the decision to refuse to issue the visa, I find that this is a suitable case for declining to quash the visa officer's decision. The application for judicial review is therefore dismissed.
[16] Counsel did not suggest a question for certification therefore no question is certified pursuant to subsection 83(1) of the Immigration Act.
__________________________________
Judge
Ottawa, Ontario
August 16, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1397-01
STYLE OF CAUSE: EL WALEED HAMED v. MCI
DATE OF HEARING: August 13, 2002
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: THE HON. MADAM JUSTICE LAYDEN-STEVENSON
DATED: August 16, 2002
APPEARANCES BY: Ms. Meerai Cho Barrister & Solicitor
Toronto, Ontario
For the Applicant/Appellant
Mr. Marcel Larouche
Department of Justice
Toronto, Ontario
For the Respondent
SOLICITORS OF RECORD: Harvey Savage
Barrister & Solicitor
Toronto, Ontario
For the Applicant
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario
For the Respondent