Date: 20000707
Docket: IMM-2145-99
BETWEEN:
SLAVKO RALIC
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant in this case seeks judicial review of a decision of a visa officer, based at the Canadian Consulate General in Detroit, who refused his application to immigrate to Canada under the "assisted relative" and Family Business Offer Program. The decision of the visa officer was made on March 24, 1999 and was received by counsel for the applicant on April 8, 1999.
[2] The applicant is a citizen of Yugoslavia. He applied to immigrate to Canada under the Family Business Offer Program. He received an offer of employment from his brother-in-law, who owns and operates a number of commercial buildings in the Toronto area. In September 1997, the applicant, by his counsel, made an application to the Department of Citizenship and Immigration Business Immigration Unit. Within a month, the applicant's offer of employment from his brother-in-law was approved. The letter from the Department to the brother-in-law, dated October 21, 1997 included the following:
| We have determined that your family business appears viable and your job offer is bona fide. It is the responsibility of the Visa Post to assess your relatives [sic] ability to satisfy the job requirements. They will make the final decision and process your relatives [sic] immigrant visa if his/her application for permanent residence is approved. |
The application was forwarded to the visa office at Detroit for assessment.
[3] On March 23, 1999 the applicant attended an interview with the visa officer at the Canadian Consulate General in Detroit. By letter dated March 24, 1999, the applicant was informed that his application had been denied. The letter informed the applicant that he was required to obtain 65 units of assessment under the Assisted Relative category, but had obtained only 53, assigned in relation to various factors as follows:
| Age |
10 |
| Occupational Demand |
01 |
| Educational Training Factor |
05 |
| Experience |
04 |
| Arranged Employment |
10 |
| Demographic Factor |
08 |
| Education |
10 |
| English |
00 |
| French |
00 |
| Personal Suitability |
05 |
| Total |
53 |
[4] The decision set out in the letter, including the basis for it, is the subject of this application for judicial review. The applicant argues that the visa officer made a number of errors: (i) by assessing the applicant under the independent category rather than under the Family Business Offer Guidelines of the Department, (ii) by considering irrelevant and extraneous factors, (iii) by making erroneous findings of fact, (iv) by erring in not assessing the applicant in an alternative occupation, and (v) by erring in the assessment of the applicant's abilities in English and French. Finally, it is argued that the visa officer erred in her evaluation of the applicant's personal suitability.
(A) Application of "Independent" Category instead of Family Business Offer Guidelines
[5] The applicant argues that the visa officer erred by considering the applicant under the "Independent" category of immigrant, as set out in the Immigration Regulations, 1978,1 rather than under the Family Business Offer Guidelines. Having reviewed the certified tribunal record, it is my opinion that the visa officer did not consider the applicant as an independent applicant, but rather he was considered in the category of assisted relative. The letter of March 24, 1999 states as much:
| Pursuant to section 8(1) and 10(1) of the Immigration Regulations, 1978, immigrants in the Assisted Relative category shall be assessed on the basis of education, vocational preparation, experience, occupational demand, arranged employment or designated occupation, Canadian demographic factors, age, knowledge of English and French languages and, on the basis of an interview, personal suitability. |
[6] It is said by the applicant that the visa officer should not have used the independent category, as was indicated by her reliance on the selection criteria and the usual point system used for independent applicants. The applicant argues that the Family Business Guidelines do not require the use of the point system. With respect, I disagree. The Immigration Policy Manual relied upon by the applicant sets out the objectives and procedures associated with this category of immigrant.
| 1.35 FAMILY BUSINESS - PROCESSING OF JOB OFFERS TO RELATIVES (See also IS 1.18) |
| 1) Criteria |
| Offers of employment to relatives destined to Canadian family businesses will be considered to have met the consultative requirement set out in factor 5 of Schedule 12 to the Immigration Regulations provided they have been assessed under the following criteria: ... |
| [Subparagraphs (a) to (f) of s-s. 1.35(1) then describe criteria including: (i) the relationship of the prospective immigrant to the operator of the business within the family class or assisted relative class, the bona fides of the job offer with reasonable prospects of continuity, whether wages and working conditions are normal for the work in the area of the business, whether the business has a viable operating history for a minimum of one year, whether the job is one for which a relative is a logical and common sense choice for the position, and whether the prospective immigrant has experience and aptitudes to fill the position successfully.] |
[7] This Guideline in the Immigration Manual does not provide for deviation from the standard processing method required under the Regulations, rather it provides guidance for assessing one of the factors to be considered in relation to an application. A guideline or departmental policy cannot override a regulation or an Act of Parliament. The guideline does not purport to, nor could it, waive the requirements set out in the Immigration Regulations, 1978. It is my opinion that the visa officer was obliged, in accord with s-ss. 8(1), 10(1) and (2) and 10(1.1) of the Regulations, to follow the system for assessing points for various factors established in the Regulations and, therefore, she did not err by doing so. In addition, the applicant received ten points for factor 5 "Arranged Employment", a score assigned in accord with guideline 1.35 of the Family Business Guidelines.
(B) Consideration of extraneous and irrelevant factors
[8] The applicant argues that the visa officer erred by considering extraneous and irrelevant factors in making her decision. The applicant argues that the visa officer considered factors that were within the purview of, and already decided by, the CIC Business Unit. It is said that in light of the CAIPS notes made by the visa officer she considered: whether the applicant was vital to the business, the viability of the business, the bona fides of the job offer, the sufficiency of the salary offered, whether the business operator already has enough children to manage the business, and whether there are Canadians who could do the job.
[9] Under the guidelines, the factors listed above are properly among considerations of the Canadian Immigration Centre in Canada in assessing the job offer. They are not for the visa officer abroad to assess. In my opinion, any questioning of these factors by the visa officer, which her CAIPS notes are said to reflect, is not fatal to the decision for a number of reasons. First, the visa officer did not base her decision upon any of them. The visa officer did consider whether the applicant was vital to the business in her decision not to exercise positive discretion under subsection 11(3) of the Immigration Regulations, but only after the primary consideration of the applicant's application. Second, even if the visa officer did express reservations regarding the conclusions reached by the Business Immigration Unit, she did not reverse or attempt to circumvent them. Finally, whatever the visa officer considered in relation to the job offer, it was of no consequence. The visa officer assigned to the applicant full points for arranged employment and for experience. In my opinion, the visa officer's references to these factors relating to the job offer did not affect the fairness of the decision.
(C) Failure to Assess the Applicant as a Maintenance Supervisor
[10] It is also argued by the applicant that the visa officer erred by failing to assess him as a maintenance supervisor, as requested by the applicant. The visa officer's CAIPS notes refer to this request and the assessment by the visa officer:
| I POINT OUT THAT I SEE HIS POSITION AS ONE OF A MAINTENANCE SUPERVISOR, ONE THAT MANY PEOPLE IN CDA PERFORM AND THAT THE SALARY OFFERED TO HIM IS VERY LOW. HE STATES THAT WHEN HE LEARNS ENGLISH HE WILL SUPERVISE THE OFFICE CLEANING. HOW WITHOUT ENGLISH? NEPHEW WILL HELP. STAFF OF 5. ALL SPEAK ENGLISH |
In her affidavit, the visa officer states the following:
| In paragraph # 23 of his affidavit, the applicant states that I erred in not assessing him as a maintenance supervisor, building ( NOC 7219). The CAIPS notes, page 7 of the tribunal record indicate that I considered him under this occupation. However, this occupation is not in demand, and therefore, would not result in a successful application. I dispute the applicant's statement that he would have received 3 units of assessment for occupational factor under NOC 7219. That occupation does not appear on the General Occupations List which came into effect May 21, 1998 and under which the applicant was assessed. |
[11] The applicant argues that it is irrelevant to the Family Business Guidelines whether there are people in Canada who can or are prepared to do the job. The salary is said to be irrelevant, and in any event the visa officer in this case overlooked the provision of rent free accommodation that was part of the job offer. Further, occupational demand in factor 4 of Schedule I is said to be irrelevant in assessing an applicant seeking admission to accept a job under an approved Family Business Offer. The applicant submits that if he is accepted as having arranged employment under the Family Business Guidelines, whether the occupation is listed in the General Occupation Demand List should not be a consideration. With a job awaiting him in Canada, this factor it is urged, is irrelevant.
[12] In my opinion, occupational demand is required to be assessed for any occupation other than that particularly described in an approved Family Business Offer. Neither the Family Business Guidelines nor the statute and regulations waive the requirement to evaluate the application under factor 4 (Occupational Factor) in Schedule I to the Regulations. Whatever may be argued as the logic of the procedural requirements, the requirement that the occupation be listed is not waived for applicants under the Family Business Guidelines. Section 8 of the Immigration Regulations, 1978, prescribes the application of Schedule I, including the assessment of factor 4, to all immigrants except for those in the family class, or Convention refugees seeking resettlement, or immigrants who intend to reside in Quebec.
[13] In my opinion the visa officer did consider the applicant as a maintenance supervisor sufficiently to recognize that the occupation was not included on the General Occupations List, effective May 21, 1997, applicable to the assessment of the applicant. Since it was not included on that list there were zero units of assessment to be assigned under factor 4. Those units are assigned by departmental processes and are not open to be varied by a visa officer. Unless, one unit is assigned to an occupation in factor 4, a visa officer may not approve an application for immigration to Canada.
(D) Language Factor
[14] The applicant argues that the visa officer erred in her assessment of his language ability. As shown above, the applicant received no points for either English or French. The error alleged by the applicant is that he was never tested at the interview with respect to his reading and writing abilities. The interview was conducted with an interpreter and the visa officer avers that the applicant was not able to answer a simple question, with yes or no, in English. There is no dispute that he demonstrated no ability in speaking English. Support for the conclusion regarding the applicant's other linguistic abilities is found in his application for permanent residence. Mr. Ralic indicated on his form that he could speak, read and write English only "with difficulty" in each case. The applicant's own statement is consistent with the points awarded, and in my opinion the visa officer made no error.
(E) Personal Suitability
[15] It is argued that the visa officer, in evaluating personal suitability, failed to take into account relevant considerations and considered irrelevant factors. It is said she did not consider the applicant's motivation, initiative, resourcefulness, adaptability which are said to be evidenced by his Family Business Job Offer approval, his professional occupation, education, work experience and the existence of a sister and brother-in-law in Canada who will help him become established. From the record, there is no evidence before the Court to suggest that the visa officer did not consider the above factors. The contrary is suggested in the letter dated March 24, 1999, which includes the following paragraph:
| The units of assessment awarded to you accurately reflect your chances to become successfully established in Canada. I took into account factors such as motivation, adaptability, resourcefulness and initiative. I have also taken into account the Family Business Offer that has been approved by the CIC Business Unit. |
[16] It is further said by the applicant that the visa officer "double counted" by considering his English ability as a factor in personal suitability. There is nothing in the record to indicate that the visa officer "double-counted" the applicant's comparative lack of ability in the use of English as a factor in assessing his personal suitability. She did apparently take into account, as an indication of lack of initiative, the applicant's failure to undertake any program to improve his ability in the use of English over some three years after the date he indicated he had decided to try to emigrate to Canada and before he applied to do so.
(F) Exercise of Discretion under 11(3) of the Immigration Regulations, 1978
[17] The applicant alleges that the visa officer erred in her decision not to apply positive discretion under subsection 11(3) of the Immigration Regulations, 1978. In her CAIPS notes, the visa officer wrote:
| I HAVE GIVEN HIM FULL POINTS FOR EXPERIENCE EVEN THOUGH I HAVE SOME RESERVATIONS ON HIS PAST EXPERIENCE. HOWEVER, THE POSITION OF PROPERTY MANAGER HE CAN FULFIL. BUT I WOULD NOT GO TO THE EXTENT OF RECOMMENDING POSITIVE DISCRETION. HE DOES NOT WARRANT. HAS NOT PROVIDED EVIDENCE THAT THE POINTS DO NOT ACCURATELY REFLECT HIS CHANCES OF SUCCESSFULLY ESTABLISHING, AND SINCE THE SISTER HAS 4 KIDS INVOLVED IN THE MANAGEMENT OF THE HOLDINGS, HE IS NOT A VITAL NEED TO THE SUCCESS OF THIS OPERATION. |
[18] Subsection 11(3) of the Regulations gives the visa officer discretion to overcome an applicant's deficiency in the total points assessed under Schedule I points if, in the visa officer's opinion, there are good reasons why the point total does not adequately reflect the ability of the immigrant and his dependents to become successfully established in Canada. In my opinion, from her CAIPS notes the visa officer referred to an irrelevant consideration, whether or not the applicant was vital to the success of the family business, in considering the decision regarding positive discretion. Despite this, it is clear the visa officer concluded that the applicant provided no evidence that the points assigned did not accurately reflect his chances of becoming successfully established in Canada. In my opinion, that was the basis of the visa officer's decision. On the evidence before her, I cannot conclude that the visa officer's decision was unreasonable.
Conclusion
[19] In my opinion, the visa officer did not commit any error that would warrant intervention by the Court. The applicant's application for permanent residence was evaluated in a manner consistent with the Family Business Guidelines and the Immigration Regulations, 1978. The principles of fairness were adhered to. The applicant was given the full benefit, in my opinion, of the Family Business Guidelines and the Assisted Relative category in the assessment of his application. Thus, this application for judicial review is dismissed.
Certified Questions
[20] The applicant has requested that the following questions be certified pursuant to subsection 83(1) of the Immigration Act3:
| 1. What criteria must a visa officer follow when assessing an applicant whom has obtained arranged employment pursuant to a family business job offer? The factors contained per the assisted relative category or those guidelines as stated in the immigration manual per arranged employment and family business job offers? |
| 2. In a family business job offer application, is the primary responsibility of the visa officer at interview as stated in the immigration manual and guidelines to 1) confirm the relationship factor between the applicant and relative in Canada and 2) if the prospective immigrant has in his/her work experience and aptitude sufficient abilities to indicate he/she could successfully fill the position offered? |
| 3. To qualify under the family business job offer guidelines must the applicant possess an occupation listed on the current General Occupations Demand list? Or is it similar to the self employed category where an occupation is chosen for administrative purposes only and for no regard to the demand of the occupation? |
| 4. If an applicant has arranged employment and would thus receive 10 points, is the applicant required to possess an occupation on the General Occupations Demand List? |
| 5. If an applicant has received an approved family business job offer in one occupation and the visa officer at interview concludes that the applicant is experienced in an alternative, but similar occupation, must the applicant obtain a new issued and approved family business job offer or must the visa officer assess the applicant in the alternative occupation per family business guidelines? |
[21] In my opinion, these questions reflect a common concern which in essence is this:
| Is an applicant for admission as a permanent resident, who plans to accept an approved family business offer assuring his or her employment, after having the benefit of the application of assisted relative provisions and the Family Business Offer Guidelines, required to meet the assessment established in accord with Schedule I of the Immigration Regulations, 1978, including the requirement of assessment under Factor 4 of Schedule I for any occupation other than that specified in the approved family business offer? |
[22] This last question I certify pursuant to s-s. 83(1) of the Act by the Order now issued which dismisses this application for judicial review.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
July 7, 2000.
__________________2 Factor 5 is the "Arranged Employment or Designated Occupation" factor.