Date: 20040914
Docket: IMM-3780-03
Ottawa, Ontario, this 14th day of September, 2004
Present: The Honourable Justice James Russell
BETWEEN:
SIHAM GEDEON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under s. 72(1) of the Immigration and Refugee Protection Act, 2001, c. 27 ("IRPA") for judicial review of a decision made by a Visa Officer at the Canadian Embassy, Immigration Section in Damascus, Syria on February 9, 2003 ("Decision"), which refused Siham Gedeon's application for permanent residence in Canada.
BACKGROUND
[2] The Applicant is a citizen of Lebanon. Acting on her own behalf, and with the support of her family in Canada, she submitted an application for permanent residence to Canada under the selection standards established by the former Immigration Act, R.S.C. 1985, c. I-2, as amended and related Immigration Regulations. She applied as a Technical Sales Specialist as defined in the National Occupational Classification ("NOC) Category 6221 published by the Minister of Human Resources Development.
[3] In 1991 the Applicant commenced work with her current employer, Nabhan Trading Hardware and Tools, initially as a secretary and administrative assistant and then, beginning in 1994, as a Technical Sales Specialist. In this position she solicits and meets with new clients to sell the technical products manufactured and sold by her employer.
[4] At the time of her application and interview, the Applicant submitted a letter of experience and reference confirming her job as a Technical Sales Specialist in Lebanon with Nabhan Trading Hardware and Tools.
[5] The Applicant has three brothers, a sister and a mother who are Canadian Citizens and who live in Toronto. One of her brothers owns a business in Canada called Advance Fasteners Inc., at which company another of the Applicant's brothers works in a management capacity. This company is engaged in the manufacture and wholesale trade of fasteners, such as screws, nuts and bolts in Ontario, Quebec and throughout North America.
[6] Based on the Applicant's education and work experience, as well as her close family relationship, the Applicant's brothers offered her a position with their firm as a Technical Sales Person. Subject to her obtaining landed immigrant status, she accepted this offer of employment. The same offer of employment was submitted to Canadian Immigration under the Family Business Sponsorship Program and approved under that Program.
[7] The Applicant and Advance Fasteners advised the Canadian Embassy in Damascus that a family business job offer had been made to the Applicant and accepted by Canada Immigration.
[8] The Applicant is fluent in Arabic and French and has a good working knowledge of English. Advance Fasteners was aware of her language abilities at the time the job offer was submitted to, and accepted by, Canada Immigration.
[9] Advance Fasteners has customers in Quebec and New Brunswick, as well as in all other Provinces of Canada and the rest of North America. It wishes to expand its markets internationally into other areas, some of which will be French and Arab speaking.
[10] The Applicant is the last remaining immediate family member living in Lebanon. Her four siblings and her mother permanently reside in Toronto and are Canadian Citizens. The Applicant is a widow and a single mother of three children, all of whom speak French fluently and have a good, albeit not yet fluent, knowledge and ability in English.
[11] In addition to her job offer from Advance Fasteners, the Applicant has over half a million Canadian dollars in cash and assets available to help her settle in Canada. She produced documents to this effect at her interview. This amount is substantially greater than the $30,000.00 amount referred to by the Visa Officer. The Applicant has been to Canada twice to visit her family and she is familiar with Canada.
[12] On or about February 9, 2003, the Applicant and her family travelled to Damascus to attend an interview with the Visa Officer. She took all of her documents with her to the interview, including the letter of employment from Nabhan Trading Hardware and Tools, the acceptance of the family business job offer made by Advance Fasteners, and evidence of her assets and funds available for settlement. However, she says the Visa Officer did not request or provide an opportunity for review of this documentation. She says the Visa Officer was dismissive, provided the Applicant with the wrong forms to sign and, despite her protests, advised her that he felt she would be a drain on her brother's company and would not succeed in Canada.
DECISION UNDER REVIEW
[13] The application for permanent resident status was refused by letter dated February 9, 2003, but with a named document dated July 1, 2002. The reasons for the refusal as set out in the refusal letter were that the Applicant had "obtained insufficient units of assessment to qualify for immigration to Canada, the minimum requirement being 70 points":
.... You have not presented me with any information that would satisfy me that you have the adaptability, motivation, initiative or resourcefulness to successfully settle in Canada. I have assessed you with zero points for this category. I was able to determine that you do not have experience and as a consequence you have been awarded zero points for experience and consequently zero points for occupation.
You told me at the interview that you wanted to immigrate to Canada to be with your family and for your children to continue their education. I am not satisfied that you are going to settle in Canada and work. I believe that you intend to enter Canada solely for the purpose of obtaining permanent residence for your children.
Subsection 9(4) of the Immigration Act provides that:
Where a visa officer is satisfied that it would not be contrary to the Act or regulations to grant landing or entry to an applicant, that officer may issue a visa if, in his or her opinion, that applicant meets the requirements of the Act and regulations.
You do not meet the requirements of the Act and regulations, as stated above and your application is therefore refused.
[14] The Applicant points out that, contrary to the assessment of job skills outlined in the letter of refusal, including the Visa Officer's reference to the Applicant not having the necessary job experience, the reasons for refusal outlined in the CAIPS notes acknowledge that the Applicant has been working as a Technical Sales Specialist with Nabhan Trading Hardware and Tools since 1994. The notes expressly state that she "started to work in 1991 as a Secretary and Admin Assistant. Then in 1994 she went on to become special tech sales. Basically what she does is hardware tool sales. Working for a company in the hardware business."
[15] The Visa Officer also acknowledged that she had been in Canada on two occasions, that she had money available for settlement (even though he noted the wrong amount) and that she was fluent in French and had a good but not fluent ability in English.
[16] The Visa Officer's refusal, according to the CAIPS notes, appears to be based almost entirely on the Visa Officer's view that she did not have the ability to perform in her prospective job with her brother's business because of her lack of ability in the English language, her "only" having been in Canada twice, and her lack of knowledge of the Canadian business market.
[17] The Applicant, after having received a copy of the Visa Officer's refusal letter, retained and instructed her solicitor to apply for judicial review based on the Applicant's view that the Visa Officer had wrongly assessed her work experience and occupational factors, her arranged employment factor and/or her personal suitability/adaptability factor. The Visa Officer had also disregarded her almost ten years of experience as a technical sales specialist, her bona fide offer of employment to work in Canada in the almost exact field of her current employment with her brother's business under the Family Business Sponsorship Program. What is more, the Visa Officer had failed to consider her suitability and adaptability on her previous two trips to Canada, the money and job available to her for settlement and her extensive immediate family in Canada who have all successfully immigrated to Canada.
ISSUES
[18] The Applicant raises the following issues:
Did the Visa Officer fail to properly assess the Applicant's application for permanent residence by:
a. improperly interpreting the Immigration Act, Immigration Regulations and NOC in assessing "0" for occupational factor and "0" for experience;
b. improperly considering prospective employment in assessing "0" for occupational factor and "0" for experience as opposed to past and existing occupation and experience;
c. improperly using the occupational factor and experience factors as a means to exercise negative discretion or to effect a desired decision based on bias;
d. improperly interpreting the Immigration Act and Immigration Regulations by refusing to consider or give weight to the family business sponsorship under the arranged employment and family bonus factors;
e. improperly interpreting the Immigration Act and Immigration Regulations by refusing to consider or give weight, in assessing personal suitability, to inter alia the Applicant's previous trips to Canada, monies available for settlement, close remaining relatives in Canada, language abilities in each of Arabic, French and English, family business job offer; and/or
f. improperly interpreting the Immigration Act, Immigration Regulations and NOC by failing to observe a principal of natural justice, procedural fairness, or other procedure that he was required by law to observe and by erring in law in making the decision?
[19] The Applicant submits the following additional or ancillary issues in her Further Memorandum of Law and Argument:
a. Did the Visa Officer breach procedural fairness by not advising the Applicant of his concerns regarding her employment experience and providing her and/or her employer with an opportunity to disabuse the Visa Officer of his concerns?
b. Was the Visa Officer's determination that the Applicant did not have the requisite employment experience to render any units of assessment for occupation or employment experience under the NOC patently unreasonable, unfair and/or without basis at law or fact, in particular based upon the evidence before the Visa Officer?
c. Did the Visa Officer exceed his jurisdiction by incorporating considerations on language and customer base when considering the suitability of the Applicant for her proposed employment in Canada?
d. Did the Visa Officer exceed his jurisdiction by incorporating considerations outside of those stipulated in the National Occupations Classification List when determining whether or not the Applicant met the occupational and employment experience requirements?
e. Was the Visa Officer's assessment of "0" for personal suitability an error in law or patently unreasonable, unfair and/or without basis in fact or law given the substantial connection of the Applicant to Canada in the form of mother, three brothers, previous trips to Canada, arranged employment in Canada and money in a bank in Canada?
f. Was the Visa Officer's assessment that the Applicant was not an intending immigrant but rather a carrier parent an error in law or patently unreasonable, unfair and/or without basis in fact or law given the substantial connection of the Applicant to Canada in the form of mother, three brothers, previous trips to Canada, arranged employment in Canada and money in a bank in Canada?
ARGUMENTS
Applicant
Generally
[20] The Applicant says that, for the purpose of determining whether an immigrant will be able to become successfully established in Canada, a visa officer must assess the immigrant on the basis of the factors listed in Column I of Schedule I of the Immigration Regulations.
[21] The nine factors listed in Column I of Schedule I of the Immigration Regulations include Education, Education and Training, Experience, Occupational Factor, Arranged Employment, Demographic Factor, Age, Knowledge of English and French, and Personal Suitability.
[22] A visa officer may issue an immigrant visa to an immigrant if the immigrant is awarded at least 70 units of assessment (Immigration Regulations, s. 9(1)(b)(I)).
[23] A visa officer may further give points for Arranged Employment and bonus points for family in Canada and approved applications under the Family Business Sponsorship Program.
[24] The NOC is the tool specified in Schedule I of the Immigration Regulations for Education and Training, Experience and Occupation Factor. The NOC is comprised of two components. One component is the NOC itself, which contains the Occupational Descriptions for a particular occupation, including the main duties and employment requirements. The second component is the Career Handbook, which is the counselling component and provides the Employment and Training Indicator rating used to determine the Education and Training Factor specified under Factor 2 of Schedule I (Immigration Regulations, Schedule I.)
[25] Under the Occupational Factor, Factor 4, an applicant shall be awarded units of assessment on the basis of employment opportunities in Canada in the occupation for which the applicant meets the employment requirements set out in the NOC and has performed a substantial number of the main duties as set out in the NOC, including the essential ones.
[26] Under the Experience Factor, Factor 3, an applicant shall be awarded units of assessment for experience in the occupation in which the applicant is assessed under the Occupational Factor.
[27] Under the Education and Training Factor, Factor 2, units of assessment are awarded for the amount of formal education and professional, vocational, apprenticeship, in-plant or on-the-job training specified in the NOC as being necessary to acquire the information, techniques and skills required for the occupation in which the applicant is assessed under Occupational Factor, Factor 4.
[28] Under Factor 5, Arranged Employment, ten units shall be awarded if, in the opinion of the visa officer: the applicant has arranged employment in Canada that offers reasonable prospects of continuity and wages and working conditions will not adversely affect employment opportunities for Canadian citizens or permanent residents in Canada; the person will likely be able to meet all applicable licensing and regulatory requirements related to the employment; or if the person is qualified for and is prepared to engage in employment in a designated occupation that offers reasonable prospects of continuity and wages.
[29] In refusing the Applicant's application the Visa Officer stated that he was not satisfied that the Applicant met the Canadian occupational requirements, nor that the Applicant had the required experience to work as a technical sales specialist in Canada as described in the NOC, notwithstanding the fact that the Applicant had a letter from her current employer and notwithstanding the notes in CAIPS that the Applicant had performed the job of Technical Sales Specialist since 1994. The Applicant submits that the Visa Officer failed in his interpretation of the NOC and the Immigration Regulations.
[30] The Applicant submits that she meets all of the Employment Requirements set out in NOC 6221 and in Volume 2 of the Career Handbook.
[31] The Applicant says the Visa Officer erred in refusing her application on the basis that she did not have the required Experience or Occupational Factor requirements and in assessing "0" for both factors. She says the Visa Officer erroneously ignored the fact that she had the requisite Occupation and Experience as set out in the NOC 6221 and, instead, based his Decision on his personal impression that the Applicant could not perform the job offered to her in Canada (as opposed to any job in Canada). The Applicant says that the test for assessment of Occupation and Experience is in relation to past occupation and experience and not prospective occupation and experience in Canada, the latter being a factor more correctly assessed under other categories of assessment.
[32] The Applicant submits that she meets the Educational, Experience and Occupational Factors set forth in the NOC and that the Visa Officer should have assessed her in the manner outlined below for Factor 3 - Experience, Factor 4 - Occupational Factor, Factor 5 - Arranged Employment, Factor 9 - Personal Suitability and Family Bonus.
Factor 3 - Experience
[33] Because the Visa Officer granted the Applicant 15 points for her Education and 17 for the Education and Training Factor, the Applicant says that the Visa Officer must have been satisfied that she had the required formal education and on-the-job training necessary to acquire the information, techniques and skills required for the occupation of a Technical Sales Specialist (Immigration Regulations, Schedule I, Factor 2, Criteria 1(e)(f)).
[34] The Applicant also says that 8 units of assessment should have been awarded for Experience. Units of assessment are to be awarded for Experience in the occupation in which the Applicant is assessed at two units for each year of experience, not exceeding four years, when the number of units awarded under Factor 2, Education and Training Factor, is 17.
[35] So the Applicant says that the Visa Officer erred by importing a higher standard into the Experience Factor than that specifically stated in the NOC and Career Handbook. The Visa Officer simply stated in his February 9, 2003 refusal letter that he was not satisfied that the Applicant had experience. There was no reference to the reasons for this assessment and the rejection of the letter from her employer. The refusal letter focussed on what the Visa Officer, in his opinion, felt would be her inability to adapt in Canada in the job offered to her by her brothers. The refusal letter assessed this lack of experience notwithstanding the recognition of her experience in the CAIPS notes and the letter of employment provided by the Applicant. The Applicant submits that a visa officer cannot add to the requirements of the NOC by assessing under the Factor of Experience (prospective ability in Canada) and by requiring the existence of corresponding Canadian experience.
[36] The Applicant says that the NOC was designed to give points for Education and Training, which are themselves deemed reflective of adaptability. The gaining of her experience in Lebanon, rather than Canada, is thus irrelevant. (Immigration Regulations, Schedule I, Factor 3 (see Paracha v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1282 (T.D.); Nakamine v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 3 (T.D.))
[37] The Applicant says her experience as a Technical Sales Specialist was gained through formal education and 10 years of experience working in that capacity in Lebanon. This entitles the Applicant to units of assessment in the Experience category. Any other determination would be unreasonable (see Nakamine, supra; Shen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 2031 (T.D.))
[38] In the submission of the Applicant, there is no evidence on the record to support the determination of the Visa Officer that she did not meet the Occupational and Employment requirements of NOC 6221 Technical Sales Specialist so as to earn points for Occupation and Experience.
[39] Contrary to the contention of the Visa Officer in his affidavit that he questioned the Applicant on her duties with her current employer, there is no evidence on the record that such a line of questioning occurred. The Applicant's evidence expressly contradicts this contention. She states that no question on her occupation and duties occurred and the CAIPS notes do not support this line of questioning, or at least they do not support the conclusion that the Applicant did not hold the experience for the occupation applied for.
[40] The only reference to rejection of experience on the record is in the refusal letter itself, which simply states that "I was able to determine that you do not have experience and as a consequence you have been awarded zero points for experience and consequently zero points for occupation." The Visa Officer does not describe in this letter of refusal, nor indeed in his affidavit, how, or on what basis, he reached this determination. The Applicant submits that, in his affidavit, which was sworn more than one year following interview, the Visa Officer has erred in his recollection of what occurred at the interview or, alternatively, he has embellished his facts to support his conclusion and that, in fact, the Visa Officer did not make the determination of lack of qualification under NOC 6221 - Technical Sales Specialist - as alleged in his affidavit.
[41] Furthermore, the Applicant says there is no evidence on the record that the Visa Officer advised the Applicant of any concern regarding her experience and his intention to reject her experience and the reference letters supplied by her employer, and he gave the Applicant no opportunity to disabuse him of such concerns.
[42] Notwithstanding the existence of no fewer than two confirmation of employment and employment duties on the file, as well as third-party corroborative evidence from the proposed employer in Canada, there is no evidence on the record that the Visa Officer contacted the employer and inquired as to the duties of the Applicant in her long term employment.
[43] Furthermore, the Applicant says there is nothing on the record that provides a basis for the Visa Officer's rejection of the letters of reference and the Applicant's experience recorded in the letters and substantiated in numerous other places. The CAIPS notes expressly provide that the job reference letters were in order.
[44] The Applicant submits that the letters of reference provided by her employer do satisfy the criteria of NOC 6221 - Technical Sales Specialist.
[45] Based on the foregoing, the Applicant submits that the Visa Officer erred in law in awarding her "0" points of assessment for each of Occupation and Experience.
[46] Further, or in the alternative, the Applicant submits that the Visa Officer's finding that she did not have the requisite experience was patently unreasonable, unfair and/or unsupported by law, fact, or the evidence before him. In particular, the Applicant submits that the finding of the Visa Officer on the Applicant's work experience does not meet the test of reasonableness simpliciter set out in Muliadi v. Canada, [1986] 2 F.C. 205 for procedural fairness. The Visa Officer should have broken down the Applicant's duties to see what had, and what had not, been performed rather than rejecting all items of experience. The Visa Officer should have further verified the job reference letters and/or asked for clarification from the employer or Applicant (Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205; Cheng v. Canada (Minister of Citizenship and Immigration, [2001] F.C.J. No. 1872; Kapustynska v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 170; Kaushal v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 15; Rekhi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No 1587; Israfil v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 654; Sharma v. Canada, First Application Record; Chaudhary v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 764; Ayub v. Canada (Minister of Citizenship and Immigration), [2002]F.C.J. No. 1140; Janmohamed v. Canada (Minister of Citizenship and Immigration), [2001]F.C.J. No. 491).
[47] Still further, the Applicant submits that the Visa Officer breached his obligation of procedural fairness by not advising the Applicant and/or her employer of the Visa Officer's rejection of her work experience and her reference letters from her employer, and by not providing the Applicant with an opportunity to disabuse him of his concerns (Hamed v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1157 (T.D.) ; Kouhta v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1143 (T.D.); Ahmed v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 289 (T.D.); Rukmangathan v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 317 (T.D.); Parmar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1532 (T.D.); Islam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1985 (T.D.); Chou v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 819 (T.D.)).
[48] Finally, on this issue, the Applicant submits that the Visa Officer's refusal was rooted in his belief that she could not perform the job offered to her in Canada. This mistaken belief and opinion fundamentally affected the application in a negative way and was a breach of procedural fairness in that the Visa Officer did not advise the Applicant of his position on the job reference letters and did not give her an opportunity to clarify or support her position. Alternatively, Advance Fasteners was not given an opportunity to confirm or advise why it wished to hire the Applicant, notwithstanding her fluency in French as opposed to English.
Factor 4 - Occupational Factor
[49] The Applicant submits that units should be awarded under Factor 4, Occupational Demand, where: (a) the applicant meets the employment requirements for Canada as set out in the NOC; (b) the applicant has performed a substantial number of the main duties as set out in the NOC, including the essential ones; and (c) the applicant is prepared to follow the occupation in Canada.
[50] The Applicant submits that in assessing units for the Employment Requirements section for a Technical Sales Specialist, the Visa Officer should have used the NOC in the manner set forth in the NOC itself. The Introduction section of the NOC, at page ix, specifically explains how the Employment Requirements section is to be used:
Employment Requirements
This section describes the employment requirements for the unit group.
...
Some occupations have very definite employment requirements while for others, there is no consensus or there may exist a range of acceptable requirements. To reflect this variation in the labour market, this section describes employment requirements using the following terminology:
"...is required" (to indicate a definite requirement)
"...is usually required" (to indicate something that is usually, but not always required by employers)
"...may be required" (to indicate something that may be required by some employers, but on a less frequent basis).
National Occupational Classification, page ix
[51] The Applicant says she meets the first part of the test because the Visa Officer was satisfied that she had met the required Educational Requirements as found in Factor 1, of Schedule 1 of the Immigration Regulations.
[52] The second aspect of Factor 4 requires an applicant to have performed a substantial number of the main duties as set out in the NOC. The Applicant states in her affidavit that she had been working as a Technical Sales Specialist for 10 years and that her main duties included meeting with prospective and existing customers of her current employer with a view to selling the employer's technical products. The Visa Officer's letter of refusal and CAIPS notes clearly indicate a heavy reliance on the Visa Officer's personal view of the unlikelihood of the Applicant's success in her prospective job with Advance Fasteners in Canada, primarily due to her French as opposed to English language ability. This personal view was formed without any kind of effort by the Visa Officer to enquire of the prospective employer in Canada, and without regard for the information provided by the Applicant. The Visa Officer gave no apparent weight to the desire and decision of the Canadian employer to employ the Applicant, the approval of the job offer by Canada Immigration, the close relation of the job in Lebanon currently held by the Applicant to her prospective job in Canada, the existence of clients of the Canadian firm based in Quebec, or to the requirement that an Applicant need only know one official language (the Applicant having fluent ability in French and good ability in English). The Applicant submits that the Visa Officer erred in using prospective adaptability in assessing the Occupational Requirement and erred in giving no units of assessment to the Applicant for the Occupational Requirement, notwithstanding the apparent recognition of the Visa Officer in the CAIPS notes that the Applicant had been working as a Technical Sales Specialist.
[53] Moreover, the Applicant says that Visa Officer imported his own assumptions and beliefs rather than questioning the Applicant about her job and reviewing her documents (Haughton v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 421 (T.D.)).
[54] The third aspect of Factor 4 is that an applicant should be prepared to follow the occupation in Canada. The Applicant has been offered employment in Canada to work as a Technical Sales Specialist at her brothers' business and she has accepted the offer on a preliminary basis. This information was relayed to the Visa Officer prior to the interview, first informally by the Applicant and then by providing copies of the formal application under the Family Business Sponsorship Program (Singh v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1742 (T.D.)).
[55] For these reasons, the Applicant says she met each of the three prongs of Factor 4: she met the employment requirements; she had completed a substantial number of the main duties; and she provided evidence to the Visa Officer of her intention to follow the occupation in Canada by providing information about her job offer.
Factor 5 - Arranged Employment
[56] Under this Factor, the Applicant submits that ten units should be awarded to an applicant if, in the visa officer's opinion:
(a) the applicant has arranged employment in Canada that offers reasonable prospects of continuity and wages and working conditions sufficient to attract and retain employment for Canadian citizens or permanent residents;
(b) employment of the person in Canada will not adversely affect employment opportunities for Canadian citizens or permanent residents in Canada; and
(c) the person will likely be able to meet all applicable licensing and regulatory requirements related to the employment.
[57] Alternatively:
(a) the person must be qualified for and prepared to engage in employment in a designated occupation;
(b) the employment must offer reasonable prospects of continuity and wages and working conditions sufficient to attract and retain in employment for Canadian citizens or permanent residents; and
(c) the person will likely be able to meet all applicable licensing and regulatory requirements related to the employment.
[58] The Immigration Manual lists the criteria to be considered when offers of employment to family members are at issue. The Applicant says that the Visa Officer failed to take the majority of these factors into consideration when assessing whether the Applicant could reasonably be expected to acquire, within a reasonable time period, the skill demanded by the job which the Applicant had been offered, namely a Technical Sales Specialist. In particular, the Applicant submits that the Visa Officer focussed too extensively on her lesser ability in English and gave too little, or no, weight to, among other considerations, the approval of the family business job offer, the existence of French speaking clients for the Canadian firm, the related field of business to the Applicant's existing employment in Lebanon, the Applicant's good language abilities in English and fluent abilities in French, the existence of the Applicant's entire immediate family in Canada, and the Applicant's previous travel to Canada.
[59] The Applicant submits that the Visa Officer erred in law and failed to follow natural justice and procedural fairness in consciously deciding not to give any weight to the Family Business Job Offer before making his decision on the Applicant's application, whether in the form of units of assessment for Arranged Employment and/or alternatively in the form of units of assessment for Personal Suitability.
[60] Without limitation, the Applicant submits that the Visa Officer's apparent penalizing of the Applicant for lack of fluency in English, despite fluency in French, violates the provisions of the Canadian Charter of Rights and Freedom.
Factor 9 - Personal Suitability
[61] In determining the appropriate units of assessment under the Personal Suitability Factor, a visa officer is mandated by section 8 and Schedule 1 of the Immigration Regulations to assess an applicant's suitability to become successfully established in Canada based upon adaptability, motivation, initiative, resourcefulness and other similar qualities. The Applicant submits that the Visa Officer erred by failing to take into account, or by giving too little weight, to her substantial family ties to Canada, her substantial funds and assets available for settlement, her job offer, her abilities in both official languages, and her previous trips to Canada.
[62] The Applicant says that (in granting the Applicant zero units of assessment for this Factor) the Visa Officer took into consideration what the Visa Officer considered to be the Applicant's inability to perform at the job she had been offered, as opposed to her inability to perform in the general labour market. As the family business job offer is a separate factor to be considered, and in fact was considered by the Visa Officer, it is erroneous to consider this factor again as part of the criterion for Personal Suitability (Arora v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 845 (T.D.) Mou v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 108 (T.D.); Ho v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1845 (T.D.)).
[63] The Applicant further submits that the granting of zero units of assessment to the Applicant for this Factor was patently unreasonably and indicative of undue negative bias, given the existence of all the positive factors in her favour.
[64] The Applicant submits that, as a result of taking into account factors that had already been considered in other categories, the Visa Officer granted 0 units for Personal Suitability, which was patently unreasonable, unfair and/or unsupported by law or fact or the evidence before him (Ayub, supra, and Janmohamed, supra).
[65] The Applicant further submits that the Visa Officer's finding that she is not an intending immigrant but is, rather, a carrier parent is also patently unreasonable, unfair, and/or unsupported by law, fact, or the evidence before him.
[66] The Applicant says that the Visa Officer erred in law by imposing his own criteria outside of the criteria contained in the NOC, the Immigration Act and related Regulations in reaching the conclusions that he did.
[67] The Applicant also says that the Visa Officer erred in law and in fact in awarding "0" units for Personal Suitability in that, in light of her work experience, family in Canada, money and assets available for settlement and job offer in Canada, the Visa Officer could not in an "economic sense" reasonably determine or conclude that the Applicant could not become successfully established in Canada. Chen v. Canada (Minister of Employment and Immigration), [1995] 1 S.C.R. 725.
[68] Finally, on this issue, the Applicant says that the Visa Officer erred in law by double counting rejection of the family business job offer when considering Personal Suitability. The Visa Officer's concern about Personal Suitability appears to derive primarily from what he considered to be a "misfit" for the job proposed in Canada.
The Evidence
[69] The Applicant bases each of her submissions on the clear evidence before the Visa Officer and on the record that:
a. the Applicant had previously visited Canada twice;
b. the Applicant has financial resources of over one half million Canadian dollars available to her, both in the form of bank deposits in Canada and in Lebanon, and in the form of realizable assets in Lebanon;
c. the Applicant is a widow with all other immediate family members aside from her dependent children residing in Canada, including her mother and three brothers;
d. the self-employment of each of her brothers in viable business concerns;
e. the Applicant's fluency in French and abilities in English;
f. the Applicant's stated intention to reside and work in Canada;
g. the stated intention of the Applicant's children to move to and live in Canada;
h. the availability of a job for the Applicant in Canada, approved by Human Resources Canada;
i. the Visa Officer's rejection of the job offer provided by the Applicant's brother's company Advanced Fasteners, notwithstanding repeated confirmation by that firm of its intention to employ the Applicant and the receipt by that firm of approval of Human Resources Canada for same as a family business job offer;
j. the Visa Officer's imposition of his own views of what the job with Advance Fasteners would require, in particular his views that such a job would require immediate fluency in English and past experience with large firm customers.
[70] In short, the Applicant says that any reasonable person would have determined that she had every intention of immigrating to, and remain in, Canada.
Language
[71] The Applicant reiterates that the Visa Officer erred in law by double counting "English" under each of the categories for Language, Personal Suitability and Arranged Employment.
[72] The Applicant further states that the Visa Officer's emphasis on English language skills over French for the City of Toronto is contrary to the Immigration Act, accompanying Regulations and the Charter of Rights and Freedom.
Requisite Units of Assessment
[73] The Applicant submits that, as an Assisted Relative with a Family Business Job Offer, the requisite pass mark is 70 and not 65 as submitted by the Visa Officer. In addition, the Applicant says she is entitled to receive 10 points for her job offer from Advanced Fasteners (Overseas Processing Manual, Chapter 5, Pass marks- Bonus points and Appendix B- Family Business Applicants).
Respondent
Preliminary Submission
[74] The Applicant has asked that the Visa Officer's affidavit be given little weight due to the fact that it was not tested by cross-examination. In making this argument, the Applicant has made statements but has not filed a further affidavit. As such, the Respondent submits that these unsupported assertions are not properly before the Court and should be disregarded. While the Respondent could respond in detail to these submissions, no substantive response will be provided given that the Applicant's evidence is not properly before the Court. Also, the Visa Officer's affidavit should be afforded full weight.
Standard of Review
[75] The jurisdiction of a visa officer to issue an immigrant visa is purely administrative in nature. It is also a discretionary one.
[76] The appropriate standard of review for discretionary decisions of visa officers with respect to immigrant applications is still the one enunciated by the Supreme Court of Canada in Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 where 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 same 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.
Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at p. 7 - 8
See also
Abbas v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1949 (T.D.); Chou v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1766 (T.D.); Burdziak v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1742 (T.D.)
Lai v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1451 (T.D.); Milovanova v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1353 (T.D.)
Madan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1198 (T.D.)
[77] Moreover, the Federal Court of Appeal has pronounced on the specific issue of the standard of review for assessment of Experience. In Lim, the Court of Appeal held that whether or not an individual is qualified in a profession is a pure question of fact within the mandate of a visa officer to determine. As long as it is clear that the visa officer has directed his/her mind to the proper question and the conclusion was not patently unreasonable, the Federal Court will not interfere (Lim v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L. R. (2d) 161 (F.C.A.)).
Burden of Proof Belonging to the Applicant
[78] According to subsection 8(1) of the former Immigration Act, the burden of proving that one's admission would not be contrary to the Immigration Act and Regulations rests on a person seeking entry:
| 8. (1) Burden of proof - 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.
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8. (1) Charge de la preuve - II incombe a quiconque cherche a entrer au Canada de prouver qu'il en a le droit ou que le fait d'y etre admis ne contreviendrait pas a la presente loi ni a ses reglements.
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[79] Therefore, in all categories, an applicant must present all the relevant facts and documents to support his or her application. This Court has, on many occasions, confirmed the Respondent's arguments in this regard:
It is well established the onus is on the applicant to fully satisfy the visa officer of the existence of all of the positive ingredients in his or her application. Accordingly, provided the visa officer does not act unfairly, and/or makes an error of law apparent on the face of the record in arriving at his or her decision (such as considering extraneous criteria not contained in the CCDO definition), that decision is entitled to a significant amount of curial deference (see Hajariwala v. Canada, [1989] 2 F. C. 79 (F. C. T. D.)). "
Cai v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 55 (T.D.)
Rani v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1102 (T.D.)
[80] In the case at bar, the Respondent is of the opinion that the main issue involves a pure question of fact and the weighing of the evidence by the Visa Officer.
Assessment as a Technical Sales Specialist
[81] As indicated in his CAIPS notes and in his affidavit, based on the Applicant's answers at the interview, the Visa Officer could not conclude that the Applicant was a qualified Technical Sales Specialist, or that she had had any experience working as a Technical Sales Specialist.
1) Occupational Factor
[82] Schedule 1 of the Immigration Regulations, 1978 sets out the requirement that an applicant must perform the main duties set out in the NOC:
4. (1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation
...
(b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones;
[83] In order to be awarded points for Occupational Factor, an applicant must, therefore, have performed a substantial number of the main duties of the occupation, not merely some of the duties.(Wong v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1093 (T.D.); Elijah v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1437 (T.D.)).
[84] At the interview, the Applicant did not demonstrate that she had performed a substantial number of the main duties outlined for the occupation of Technical Sales Specialist. The Visa Officer is bound to apply the Immigration Regulations. Hence, the Visa Officer did not err in awarding 0 points for Occupational Factor.
2) Experience
[85] The Applicant has failed to point to any error made by the Visa Officer in assessing her Experience as a Technical Sales Specialist. The Visa Officer, as indicated in his CAIPS notes and affidavit, reviewed all of the information provided by the Applicant in support of her application before concluding that she did not have the requisite Experience as a Technical Sales Specialist. The fact that she had worked in a store selling goods was insufficient to show that she had experience in technical sales (Immigration Regulations, Schedule I, Factors 3 and 4; Madan v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 60 (T.D.); Verma v. Canada (Minister of Citizenship and Immigration) 2003 FCT 136 (T.D.); Patel v. Canada (Minister of Citizenship and Immigration) 2004 FC 435 (T.D.); Luthra v. Canada (Minister of Citizenship and Immigration) 2003 FCT 633; Malik v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1050 (T.D.).
3) No Error in Assessing Personal Suitability
[86] The Applicant has not shown any error of fact or law in the Visa Officer's assessment of Personal Suitability. There is no indication that the Visa Officer ignored evidence. Rather, on the evidence provided, he was of the view that the Applicant did not have the motivation, adaptability and initiative needed to acquire points for Personal Suitability. A high level of deference should be afforded to points assessment for this category (Kompanets v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 726 (T.D.); Ataullah v. Canada (Minister of Citizenship and Immigration) 2003 FC 936 (T.D.)).
4) No Breach of Natural Justice
[87] The Applicant has failed to demonstrate that the Visa Officer breached the principles of natural justice during the interview. The Visa Officer was not required to ask the Applicant any questions. The onus was on the Applicant to show that she satisfied the criteria for admission. The Visa Officer did not have any concern that required disclosure to the Applicant for comment (Yu v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 176 (F.C.T.D.); Parmar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1532 (T.D.) Asghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091 (T.D.)).
[88] With respect to the Applicant's argument that the CAIPS notes do not contain sufficient reasons to justify the Visa Officer's assessment regarding her experience, the Respondent submits that before alleging a deficiency of reasons the Applicant was obliged to request fuller reasons (Marine Atlantic Inc. v. Canadian Merchant Service Guild, [2000] F.C.J. No. 1217 (C.A.)).
ANALYSIS
[89] The Applicant has raised a range of issues and has asked the Court to review the Decision from several perspectives. However, the way the Visa Officer handled the assessment in relation to the Occupation and Experience factors is central to the Decision and determinative of this review.
[90] In his affidavit of April 22, 2004 (the interview was on or about February 9, 2003) the Visa Officer shows that he is very aware of how important his approach to the Applicant's employment history in Lebanon is:
I interviewed the applicant and discussed her employment history and experience with her. As indicated in the CAIPS notes, she told me that in 1994 she went from being a secretary and administrative assistant to being a special technical salesperson. I asked her what she did as a special technical salesperson. She described her work selling hardware tools. She was unable to demonstrate that she went beyond the level of administrative/clerical duties. I was prepared to accept that she had been a general sales clerk but not as described as technical sales. She claimed she had worked at selling tools and as is reflected in CAIPS, presented a letter to that effect but she was not able to demonstrate her experience further. Rather, she stuck to generalities of the sales job.
[91] So the Officer says that, as a result of the interview, he was able to ascertain and was willing to accept that she was a general sales clerk but not that she had the experience of a Technical Sales Specialist under NOC 6221. This was also the reason why he gave her zero for both Occupation and Experience.
[92] In her own affidavit, the Applicant says that she considered herself to be a Technical Sales Specialist in Lebanon and that the Officer did not pay sufficient attention to the evidence she presented in this regard.
[93] In the CAIPS notes, the Officer has the following to say on this issue:
She started to work in 1991 as a secretary and admin assistant. Then in 1994 she went on to become special tech sales. Basically what she does is hardware tool sales. Working for a company in the hardware business.
[94] So the CAIPS notes do not really articulate the clear distinction that the Officer makes in his affidavit between an administrative clerk and a special technical salesperson. As the Officer's affidavit demonstrates, a perfectly cogent explanation for a decision can be produced in a few lines and it is such a pity (bearing in mind the time and resources that a judicial review takes up) that the same cogent explanation could not have been included in the Decision itself.
[95] One crucial piece of evidence that the Applicant provided to the Officer concerning her past experience (and the parties agree this was before the Officer) was a letter from her Lebanese employer Nabhan Trading Hardware and Tools that confirmed the Applicant's 10 years of service with that company and described in some detail what her duties and experience had been during that time.
[96] That letter refers to the Applicant as a technical sales specialist and , in my opinion, describes the Applicant as having been responsible for duties that go a long way to satisfying the NOC 6221 criteria.
[97] This does not mean, of course, that the Officer was obliged to accept this letter and its contents. The purpose of the interview was to allow the Officer to satisfy himself that the Applicant actually had the background and experience that she and her employer said she had.
[98] The Officer, in the exercise of this discretion, was entitled to prefer what he learned at the interview to what the employer and the Applicant told him.
[99] But his final conclusion on this issue is so categorical - "I was able to determine that you do not have experience and as a consequence you have been awarded zero points for experience and consequently zero points for occupation" - , and so at odds with the information in the employer's letter that the Officer should have addressed this discrepancy and should have given the Applicant the opportunity to address his concerns in this regard. What is more, he should have dealt with it in his Decision.
[100] His affidavit makes it clear that the distinction between a general sales clerk and a special technical salesperson was absolutely crucial to the Decision he made. And yet he chose not to make this clear in the Decision or in the CAIPS notes. Matters of such importance should be dealt with in the Decision.
[101] Although the Applicant has the burden of proving that she qualifies to come to Canada, this does not relieve the Visa Officer of the duty to act fairly. This Court has stated on numerous occasions that, while a decision maker is not required to refer explicitly, or to analyse, every item before it in evidence that tends to negate a finding of fact, "much depends upon the relevancy and cogency of the evidence, and upon its importance to the ultimate decision on the fact to which the evidence relates," to borrow the words of Mr. Justice Rouleau in Toth v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1518 (T.D.).
[102] In the present case, the Officer should have dealt clearly in the Decision or the CAIPS notes with his reasons for rejecting the employer's description of the Applicant's experience and responsibilities in Lebanon and should have given the Applicant the opportunity to address the concerns he had in this regard. Not to do so was a reviewable error.
[103] Had this occurred it is not possible for the Court to say whether the Decision would have remained the same. For this reason the matter should be returned for reconsideration by a different officer who should allow the Applicant to provide details of her full relevant work background and experience in Lebanon and raise with her any concerns that it does not satisfy the relevant NOC category. The Officer should also consider whether the Applicant should receive additional units of assessment in the Experience and Occupation categories as well as in the Arranged Employment and Personal Suitability categories in light of anything learned as a result of the re-consideration.
[104] I am not saying that the end result will be any different from the conclusions reached in the Decision under review, but the Applicant and the Court need to know that the relevant evidence is duly considered and that the Applicant has been given an opportunity to address material concerns and discrepancies.
ORDER
THIS COURT ORDERS that
1. The Application for judicial review is allowed and the matter is returned for reconsideration by a different officer.
2. There is no question for certification.
"James Russell"
JFC
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3780-03
STYLE OF CAUSE: SIHAM GEDEON v. MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: June 15, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Russell
DATED: September 14, 2004
APPEARANCES BY: Ms. Charlotte Janssen
For the Applicant
Ms. Catherine Vasilaros
...................................
...................................
For the Respondent
SOLICITORS OF RECORD: Ms. Charlotte Janssen
Toronto, Ont.
For the Applicant
Ms. Catherine Vasilaros
Department of Justice Ontario Regional Office.
130 King St. W. Suite 3400, Box 36 Toronto,Ont.
M5X-1K6
For the Respondent