Date: 19990603
Docket: IMM-5115-98
BETWEEN:
| LUCIAN JUMATATE, Economic Director, presently residing at 17 Drumul Tabarei Str, apt. 23, sectoro 6, Bucharest, Roumania |
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION, c/o
Department of Justice, Guy-Favreau Complex, 200 René Lévesque
Blvd. West, East Tower, 5th Floor, Montreal, Quebec, H2Z 1X4
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application for judicial review with respect to a decision dated September 8, 1998, by Terry David Brown, Foreign Service Officer and Third Secretary at the Canadian Embassy in Bucharest, wherein he denied the applicant Lucian Jumatate"s application for permanent residence in Canada.
FACTS
[2] On January 30, 1998, the applicant filed an application for permanent residence to enter Canada under the independent immigration category. The application was filed with the Canadian Embassy in Bucharest, Roumania which acknowledged receipt on March 19, 1998.
[3] The applicant requested that his application be assessed under the following occupations:
- economist & economic policy researchers and analyst (NOC 4162.0)
- political scientist (NOC 4169.6)
- management consultants (NOC 1122.1)
[4] A letter from the Canadian Embassy dated May 14, 1998 signed by Second Secretary Mr. Gilles Perrault requested an assessment of the applicant"s credentials from the University of Toronto, as well as job descriptions from the Ministry of Defence since 1990.
[5] In a letter dated June 29, 1998, the applicant"s attorney, Mr. David Schwalb of Montreal, advised the Canadian Embassy that the request for assessment had been sent to the Comparative Education Services Department of the University of Toronto.
[6] In a letter dated September 8, 1998, signed by Terry Brown, Third Secretary, Immigration, the Canadian Embassy informed the applicant that it had made an assessment of his application and that the application was refused for not meeting the requirements.
[7] On September 9, 1998, the applicant"s attorney wrote to Terry Brown indicating that the assessment for the University of Toronto had recently been sent.
[8] On September 11, 1998, Terry Brown responded that he would consider the assessment if it made an impact on his decision.
[9] On September 17, 1998, the visa officer received, with a letter dated September 17, 1998, the assessment from the University of Toronto dated August 31, 1998.
[10] No further correspondence or communication from the Canadian Embassy was received by the applicant and a notice of application for judicial review was filed October 5, 1998.
Decision of the visa officer
[11] The letter by Terry Brown of September 8, 1998 provides the following information:
| ... You were assessed based on the requirements for economist (NOC: 4162.0). |
| You were awarded the following units of assessment: |
| Age 00 |
| Occupational factor 01 |
| ETF/S.V.P. 17 |
| Experience 00 |
| Demographic factor 08 |
| Education 15 |
| English 09 |
| French 06 |
| Bonus 00 |
| Personal suitability ?? |
| Total 56 |
| You should be aware that a minimum of 70 units are necessary to be eligible for immigration to Canada. |
| You have obtained insufficient units of assessment to qualify for immigration to Canada. Also, section 11(1) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of "experience in an occupation for which they are qualified and are prepared to follow in Canada", unless the immigrant 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. You do not meet the requirements with regard to the experience factor because your present and past work duties do not correspond to those of an economist according to the Canadian National Occupational Classification. Consequently, you do not have the necessary one year experience as an economist. You have also been assessed as a political scientist (NOC: 4169.6), management consultant (NOC: 1122.1) and publications manager (NOC: 0512), but you do not meet the immigration requirements in these occupations, either. Therefore, you come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, and your application has been refused. |
| ... |
| I have considered the use of positive discretion per Paragraph 11(3)(a) of the Immigration Regulations 1978. In my opinion the number of units of assessment awarded to you reflect your chances of you and your dependents of becoming successfully established in Canada. Therefore, in my opinion, the use of positive discretion does not apply in your case. |
[12] In his affidavit at paragraph 34, Terry Brown, speaking of the assessment received from the University of Toronto stated:
| This information did not move me to alter my decision because it remains that the applicant has no experience as an economist and no validated offer of employment as one. I did not reopen the file as the attorney requested. |
Points in issue
[13] As stated by counsel for respondent in her oral and written submissions, essentially, the applicant is challenging:
| - the fact that the decision was made on September 8, 1998 without further waiting for the Educational Assessments; |
| - the fact that the visa officer did not seek additional information from the applicant; |
| - the fact that the applicant was not granted an interview, tho which the applicant claims he had a "legitimate expectation"; |
| - the length of the experience of the visa officer; |
| - the amount of time the visa officer spent in reviewing on August 26, 1998 the file before making the decision; |
| - the fact that he found the applicant not to have experience in his intended occupations; |
| - the fact that the visa officer concluded not to exercise his discretion to apply the positive discretion referred to in paragraph 11(3)(a) of the Regulations. |
Submissions by the applicant
[14] The written and oral submissions of the applicant are very detailed - 12 pages, single spaced in their written form and approximately 1" hours in oral submissions. Therefore, I endeavoured to collect the most relevant submissions of the applicant.
[15] Counsel submits that the applicant was denied his full opportunity to express his educational background, totality and applicability of his work experience, and his ability to successfully establish himself in Canada.
[16] Counsel submits that the officer did not review the file in a complete and proper manner and in fact made a premature decision on the file even though he was not in receipt of the expected and requested assessment, an assessment that was in the process of being obtained and that he was aware of.
[17] The letter of May 14, 1998, from Mr. Gilles Perrault concludes by stating that "if we have not received any communication from you or your consultant within three months we will assess your application with the documents currently on file" (emphasis added).
[18] In fact, there had been some communication from the consultant for the applicant and this was on June 29, 1998 stating that the assessment had indeed been applied for and there was no response at that time, the communication complying with Mr. Perrault"s letter of May 14,1998. There were also documents of job descriptions sent.
[19] The officer, Terry Brown, states at paragraph 7 of his affidavit that "the three months were unequivocally to run from that date", i.e. May 14, 1998 (emphasis added).
[20] There is no indication in Mr. Perrault"s notation that the three months were to be "unequivocal" and therefore the present officer, Terry Brown, submitted his own interpretation on Mr. Perrault"s notation effectively denying the applicant the right to have a full review of his file at this initial and very crucial stage.
[21] Furthermore, the implication that can be drawn from the previous officer"s request was that the interview was to be determined from the educational assessment rather than an examination of the applicant"s professional work experience.
[22] There arises a reasonable and legitimate expectation that the applicant would be allowed to not only present fully his application but that an interview would be determined predicated on the receipt and evaluation of the educational assessment.
[23] The doctrine of legitimate expectation cannot create substantive rights, rather it creates procedural rights and thus it is applicable to the case at bar since the applicant"s procedural rights were ignored or denied.
[24] The officer acting in an administrative capacity has a duty of fairness, which duty includes the obligation to consider all of the evidence.
[25] The officer, Terry Brown, made no effort to contact the consultant, the University of Toronto Comparative Education Service nor the applicant in order to find out when the assessment might reasonably be expected to be made and submitted.
[26] It is submitted that on the one hand the officer believed the applicant to be honest in describing his functions and extensive working experience and yet he is simultaneously trying to shoe-horn the applicant into a job description conversant with the standard descriptions under the NOC.
[27] The officer, by his own admission, spent maybe half an hour reviewing this incomplete file and yet it was unusual; this is a file that begs for a further and fairer examination in light of the foregoing.
[28] The assessment from the University of Toronto, Comparative Education Service, dated August 31, 1998, states that the licentiate of Mr. Jumatate was "comparable to the standard required for a four-year bachelor"s degree and it might go somewhat beyond, but the extent to which his diploma might exceed the level of a bachelor"s degree in economics and organization administration in this country could be determined only by a detailed examination of his academic courses in terms of requirements of a particular Canadian university".
[29] The officer exhibited no curiosity to discover whether the courses taken would conform to a higher level in a Canadian university. It is completely apparent that the applicant"s academic credentials were of an appropriate and indeed advanced level and would lend themselves to the applicant being called to interview as per Mr. Perrault"s request and notation. This was not done by the present officer and effectively denied the applicant an expectation to present himself for an interview.
[30] Even though the officer received the assessment for the applicant"s educational equivalence on September 2, 1998 he had made his decision on August 26, 1998 with no revision of the file and no incorporation whatsoever of the assessment. In making his decision before that information was presented, the officer had committed a breach of the duty of fairness.
[31] Counsel submits that the officer had no real experience especially not with the documentation and general backgrounds of Roumanian nationals intending to emigrate to Canada. The officer extrapolated and distilled the meaning of economist from the NOC descriptive passages (4162 NOC) into three words describing economist, namely the function of "research, analysis and forecasting", or in his words, an essentially correct summary (page 37 of the cross-examination). At page 38, the officer states that an applicant can perform more than these functions and that he could perform some or all of the duties described in the NOC description.
[32] It is submitted that the applicant did perform some of the duties, that it is impossible to quantify the "time" spent on them and that his is the wrong test, and that the officer should have called the client to interview to determine, if he so saw fit, the actual duties performed, the amount and the time spent.
[33] It appears obvious that thirty minutes is insufficient to paper screen a file and that there is an inconsistency in the analysis of occupations.
[34] The officer clearly fettered his discretion by limiting the scope of review of this file and had definitely made up his mind prior to the reception of requested important documents which would have had serious bearing on the evaluation of the applicant"s applications.
[35] He further limited his discretion and ignored his obligations by refusing to apply any positive discretion when it is clear that this should have been done and by a senior officer.
[36] He did not properly examine "all the factors in the file" (impossible to do in thirty minutes) and specifically did not take into account the invitation given to the applicant from the University of York, his organizational skills at an international level, contributing to peacekeeping amongst other things, which would be a strong indicator that he could successfully establish himself in Canada.
[37] There is no indicator that the officer regarded Mr. Jumatate"s occupational aspirations; the very term that is used by the officer would lead one to assume that an individual"s "aspirations" could only be determined through a face to face interview, which was denied to the present applicant.
Submissions by the respondent
[38] Even though he had no obligation to do so, the visa officer gave the applicant the opportunity to complete his file. By letter dated May 14, 1998, the visa officer requested academic assessment and job descriptions; he gave the applicant three months to send the requested information. Therefore, the applicant had until August 14, 1998 to comply with the request.
[39] In his letter dated June 29, 1998, the applicant did not request more time to send the requested assessment of his diploma nor did he ask for an extension of time.
[40] The applicant failed to comply with the deadline of August 14, 1998 and the visa officer had no obligation to seek additional information.
[41] On August 26, 1998, almost two weeks after the date of August 14, 1998, the visa officer, who had not heard from the applicant, nor received a request for further delay, completed the paper screening and wrote his decision on September 8, 1998.
[42] Even at that late date, the applicant could have sent the academic assessment, dated August 31, 1998 and received at his representative"s office on September 4, 1998, since the refusal letter was only written and sent to the applicant on September 8, 1998. However, it is only on September 17, 1998 that the applicant finally did send the academic assessment. In such circumstances, it cannot be said that the visa officer failed to observe a principle of natural justice or procedural fairness or erred in law by not seeking additional information.
[43] A visa officer has no obligation to grant an applicant an interview when the applicant is awarded less than 60 units of assessment.
[44] It is therefore imperative that an applicant"s application be as complete and as persuasive as possible if he wishes to be called for an interview.
[45] Furthermore, contrary to what is stated in the applicant"s memorandum, there is nothing on record to suggest that the applicant was promised an interview. For that reason, this argument should be dismissed.
[46] The applicant had the burden of showing that he had the required experience in the occupations under which he was seeking his visa application to be assessed and mentioned in his visa application.
[47] The applicant filed job descriptions to show the duties he had performed. Based on those job descriptions and the description of the duties of the occupations under which the applicant asks his application to be assessed and found in the NOC, the visa officer concluded that virtually none of the duties in the job descriptions provided by the applicant met the requirements of those occupations found in the NOC.
[48] The applicant"s argument is that the visa officer erred in ignoring his extensive work experience and by relying instead on the NOC. The respondent submits that the elements of the NOC are binding. Therefore, NOC in assessing among other factors, the factor experience, the visa officer cannot disregard those elements and prefer other ones.
[49] Even if the applicant had extensive experience in various fields, the visa officer could not give him any unit of assessment for experience since the applicant"s evidence, in relation to his experience, did not show that it was acquired in the performance of the main duties described in the NOC for the occupations under which he asked his visa application to be assessed.
[50] The respondent submits that the visa officer, whose legal authority is not challenged, had had the necessary training to perform his duties, he had gained experience in Pretoria and in Bucharest before dealing with the applicant"s file and he has a good knowledge of the immigration policies, procedures and operations since he worked as a training assistant in Ottawa. Before going to Bucharest, he had discussed the general profile of the caseload of the applicants who were applying through the Bucharest office with a visa officer who was posted in Bucharest.
[51] Whether the decision of a visa officer should be set aside or not is not contingent on the length of the experience of the officer.
[52] The respondent submits that the amount of time spent on a file is not indicative of whether the decision should be set aside or not.
[53] For the reasons mentioned above, the applicant had no legitimate expectation to be called for an interview.
[54] Furthermore, the applicant was given the opportunity to present further evidence, his job descriptions and his academic assessment, all of which were considered by the visa officer.
[55] However, as explained by the visa officer, since the academic assessment had no impact on his decision, based on a lack of experience and of a validated offer of employment, and not lack of education and training, he did not reopen the file.
[56] The applicant argues that the visa officer contradicted himself by stating that it was the applicant"s experience which prompted him to look at the occupation of Publications Manager while he gave him zero unit of assessment for experience.
[57] The respondent submits that there is no contradiction and that even if it could be viewed as an error, it is not one that could be seen as having an impact on the decision since the applicant could not be issued a visa for that occupation which is not listed in the GOL and for which he was awarded zero units of assessment in regard to Occupational Factor.
ANALYSIS
[58] Addressing the issue of whether the visa officer made a premature decision by not waiting for the educational assessment which he knew was forthcoming, fault can and is attributed to the visa officer. Based on the facts, it appears that he knew that the information was forthcoming and that counsel for the applicant had not ignored the request of Mr. Perrault since he followed up with the Embassy as evidenced by his letter of June 29, 1998 stating that the assessment had been applied for and including documents relating to job descriptions.
[59] That being said, however, this obvious error by the visa officer is not determinative in the circumstances, since visa officer Terry Brown, stated in his affidavit that he would consider the assessment if it made an impact on the decision. When he received the assessment on September 17, 1998, it did not move him to alter his decision because it remained that the applicant has no experience as an economist and no validated offer of employment as one.
[60] Therefore, the educational assessment from the University of Toronto was considered by the visa officer and the fact is that it didn"t change the original decision. This issue alone does not warrant this Court to intervene on a conclusion of the officer that appears to be reasonable.
[61] Turning now to the issue of whether the visa officer should have pursued the applicant for further information, I believe that subsection 8(1) of the Immigration Act is quite clear on this point, it states:
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.
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.
[62] Gibson J. in Duan v. M.C.I. (18 December 1995), Calgary, IMM-1278-95 (F.C.T.D.) responded to such an argument as the one made by the applicant by stating:
Counsel argued that the visa officer should himself have reached out to obtain supplementary material against which the applicant"s training and work experience might have been more appropriately assessed. The onus to do so did not lie on the visa officer. Rather, the onus was on the applicant as reflected in subsection 8(1) of the Immigration Act quoted earlier.
[63] Therefore, this argument by the applicant cannot stand and no reviewable error has been committed by the visa officer in that regard.
[64] Counsel for the applicant also contests the fact that the visa officer did not grant an interview to the applicant, and that by not doing so he denied the applicant a legitimate expectation. The answer to this argument is also found in the regulations as interpreted by the Court. In Mohammad v. M.C.I. (1995), 90 F.T.R. 310, Rothstein J. decided in a case where the applicant was seeking to enter Canada in the category of "assisted relative" that:
The applicant was awarded 54 units. Pursuant to s. 11.1(a)(ii) of the regulations, there was no requirement for the visa officer to conduct an interview with the applicant in the case at bar once it was determined he had failed to receive at least 55 units of assessment. As a result, the visa officer did not grant the applicant an interview, and denied his application.
[65] Since the present applicant was awarded a total of 56 units, there was no obligation under the law and no indication from the facts at hand to infer that the visa officer had led the applicant to believe that an interview would be granted.
[66] In the case Mokhtar Bendahmane v. M.E.I. (1989) 3 F.C. 16, at 31, Hugessen, J.A. explains:
| The applicable principle is sometimes called under the rubric of "reasonable expectation" or "legitimate expectation". It has a respectable history in administrative law and was most forcefully stated by the Privy Council in the case of Attorney-General of Hong Kong v. Ng Yuen Shiu1. In that case, Ng was an illegal immigrant to Hong Kong from Macau, one of several thousands. The government gave a public assurance that each illegal immigrant would be interviewed and each case treated on its merits. Notwithstanding this, Ng, whose illegal status was not in dispute was ordered deported without being given the opportunity to explain why discretion should be exercised in his favour on humanitarian and other grounds. The Privy Council held that in so acting the authorities had denied Ng"s reasonable expectations based upon the Government"s own statements. |
[67] I note no such undertaking by the visa officer and, therefore, the doctrine of legitimate expectation is not applicable in the case at bar since the interview is not a procedural right which would have been denied.
[68] The applicant further argued that the duty of the officer includes the obligation to consider all of the evidence. This is an accepted principle, but the facts of the case indicate that the visa officer did indeed consider all of the evidence, including the assessment from the University of Toronto, but the receipt of this information did not move him to alter his decision and reopen the file.
[69] Since the academic assessment relates to the Education and Training factor and that the decision of the visa officer was based on lack of experience and of a validated offer of employment, there is no reason to believe that the visa officer failed to consider it properly.
[70] The length of the experience of the visa officer and the amount of time the visa officer spent in reviewing, on August 26, 1998, the file before making the decision are not relevant considerations in reviewing a visa officer"s decision unless some obvious anomaly is brought forward, which is not the case in this instance.
[71] The applicant expresses doubt on whether a proper assessment of the applicant"s qualifications took place and contests the fact that the visa officer found the applicant not to have experience in his intended occupations.
[72] Given the evidence that was before the visa officer and the description of the duties of the occupations under which the applicant asked his application to be assessed and found in the NOC, I make mine the opinion of Pinard J. in Tang v. M.C.I., IMM-2071-98, January 5, 1999 where he states:
| In my opinion, given the evidence, the above CCDO definitions and the high level of deference accorded to visa officers to make factual determinations, it was not patently unreasonable for the visa officer to conclude that the applicant did not qualify to be an Executive Secretary (see Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R.2). The fact that the applicant met some of the requirements of Executive Secretary does not mean that she met all of the requirements (see Cai v. M.C.I. (January 17, 1997), IMM-883-96). |
[73] Therefore, this allegation must also be rejected.
CONCLUSION
[74] For all these reasons, this application for judicial review of the decision of the visa officer is dismissed.
[75] I would add that I attempted to review the jurisprudence which I believe might be relevant. Only that jurisprudence quoted above appears to me to be most relevant in light of the facts of the case at bar.
[76] Neither party had a question that they wished to have certified.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
June 3, 1999
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