Date: 20030123
Docket: IMM-1712-01
Neutral citation: 2003 FCT 70
Toronto, Ontario, Thursday, the 23rd day of January, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
SHAHID SALEEM
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Shahid Saleem (the "Applicant") seeks judicial review of the decision of Visa Officer Greg Binder (the "Visa Officer"). In his decision dated February 19, 2001, the Visa Officer refused the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of Pakistan, applied for permanent residence in Canada in April 1997, under the independent skilled worker category. He described his intended occupation as "Aircraft Mechanic". His application was refused by a visa officer on June 14, 1999, without an interview. The Applicant sought judicial review of this decision and upon the consent of the Respondent, his application was reopened and the Applicant discontinued his proceedings before this Court.
[3] The Applicant attended an interview at the Canadian High Commission in Islamabad, Pakistan, on February 19, 2001. The Visa Officer questioned him about his work experience and requested a letter from his current employer since the Applicant had only provided letters from 1997. The Visa Officer asked the Applicant to read the notice of interview letter out loud and to explain his understanding of the direction in this notice that he bring a current letter of employment and job description to his interview. The Visa Officer claims that this is how he tested the Applicant's reading ability in English.
[4] The Visa Officer had his assistant call Schön Air to confirm the Applicant's employment there. He then discovered that the Applicant had been laid off in July 2000 and had not worked with that company since that time. The Applicant said he had not understood the question concerning his employment, that he did not understand the difference between "are you working" and "have you worked". For this reason, the Visa Officer reassessed the Applicant's English language ability from "fluent" to "well" and reduced the Applicant's self-assessment from nine units to six.
[5] The refusal letter issued to the Applicant, dated February 19, 2001, states that he was assessed as an aircraft mechanic, listed in the National Occupation Classification ("NOC") under code 7315.1. The letter sets out the following units of assessment:
Age 10
Occupational Factor 01
S.V.P. 15
Experience 06
Demographic Factor 08
Education 10
English 06
French 00
Bonus 05
Suitability 05
Total 66
[6] The Applicant argues that the Visa Officer erred in law in assessing his education. Further, he argues that the Visa Officer breached the duty of fairness by not advising him of concerns regarding his education. He also argues that the Visa Officer erred in assessing his language skills. Finally, upon the hearing of this application, the Applicant submitted that the Visa Officer erred in the award of five units for personal suitability.
[7] On the question of education, the Applicant says that he should have received thirteen units instead of ten. He bases this argument upon the admission by the Visa Officer in cross-examination upon his affidavit that the Applicant held a secondary school diploma which "may lead to entrance to university in the country of study" and that the Applicant had completed an apprenticeship certificate program that required completion of a secondary school diploma.
[8] Second, the Applicant argue that the Visa Officer did not give him the opportunity to respond to any concerns that he may have had concerning his educational qualifications. The Applicant takes the position that the Visa Officer had a duty to provide him with the opportunity to disabuse him of concerns.
[9] Next, the Applicant submits that the Visa Officer did not follow the Immigration Policy Manual, Overseas Processing, Chapter OP-5, Appendix "A", "Language Assessment Guide", in assessing his language ability. The Visa Officer assessed the Applicant's reading ability simply by asking the Applicant to read the interview letter and comment on its meaning. Moreover, the Visa Officer did not test the Applicant's writing ability and so made his finding on that point in the absence of any evidence.
[10] Finally, the Applicant argues that the Visa Officer erred by failing to consider the documentary evidence in assessing the units available for personal suitability. In this regard, the Applicant says that the Visa Officer only looked at his offer of employment in Canada in terms of arranged employment and not in terms of personal suitability. The Applicant says this was an error since the existence of the job offer demonstrates initiative relative to successful establishment in Canada.
[11] The Respondent takes the position that the Visa Officer committed no reviewable error in assessing either the Applicant's education or language skills. Concerning the education assessment, the Respondent says that the Applicant presented the Visa Officer with a letter from a former employer indicating that he had passed the company apprenticeship program. The Respondent says that the Applicant was correctly awarded ten units for education as his secondary school education had the potential to lead to university admission and accordingly, the Applicant met the criteria described as Factor 1(1)(b)(ii) of Schedule I. The Respondent argues that there was no evidence that this company apprenticeship program constituted one year of full time classroom study "at a college, trade school or other post secondary institution", as required for the award of thirteen units pursuant to Factor 1(1)(c)(ii).
[12] The Respondent further argues that the Visa Office was under no obligation to question the Applicant about the apprenticeship program because this was provided by the employer and there was no evidence that it was associated with a college, trade school or other post secondary institution.
[13] As for the language assessment, the Respondent argues that the Applicant did not understand the written instructions to bring certain documents to the interview and agreed with the Visa Officer's assessment of "well" rather than "fluent", and there is no basis for intervening with the conclusion reached by the Visa Officer. Relying on Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1060, [2001] F.C.J. No. 1470 (T.D.) (QL), the Respondent says that there is no absolute duty to administer a reading or writing test in order to determine the units to be awarded for language.
[14] Finally, the Respondent argues that the Visa Officer committed no error in the manner in which he assessed and awarded units for personal suitability. The Respondent submits that the assessment of this factor involves the exercise of discretion by the Visa Officer and in the absence of evidence that he considered irrelevant factors or failed to consider relevant evidence, his assessment should stand. The Respondent submits that the Visa Officer considered the Applicant's motivation in becoming successfully established in Canada and noted that his uncle had assisted the Applicant in obtaining the employment offer. The motivation of the uncle is not in issue but rather the motivation of the Applicant. The Respondent argues that the Visa Officer's assessment of personal suitability was reasonable, having regard to the evidence before him.
ANALYSIS
[15] The Applicant sought admission into Canada as a permanent resident pursuant to the Immigration Act, R.S.C. 1985, c. I-2, as amended, (the "Act"). As such, he was subject to section 8 of that Act which provides as follows:
| 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. (2) Every person seeking to come into Canada shall be presumed to be an immigrant until that person satisfies the immigration officer examining him or the adjudicator presiding at his inquiry that he is not an immigrant. |
|
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.
(2) Quiconque cherche à entrer au Canada est présumé être immigrant tant qu'il n'a pas convaincu du contraire l'agent d'immigration qui l'interroge ou l'arbitre qui mène l'enquête.
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[16] He applied in the capacity of an independent skilled worker. He was required to comply with Schedule I of the Regulations. This application for judicial review challenges the findings made by the Visa Officer concerning his education, English language ability and personal suitability.
[17] The Visa Officer awarded ten units for education and the Applicant says he ought to have been awarded thirteen units because he had completed an apprenticeship program. Sections 1(1)(b)(ii) and 1(1)(c)(ii) of Schedule I to the Regulations are relevant to the Applicant's submissions on this alleged error. These sections provide as follows:
=================================================================
Column I Column II Column III
Factors Criteria Maximum Units
------------------------------------
1. Education (1) Subject to subsections (2) to 16
(4), units of assessment shall be
awarded as follows:
...
(b) where a diploma from a secondary
school has been completed, the greater
number of the following applicable units:
...
(ii) in the case of a diploma that may
lead to entrance to university in the
country of study, ten units, and
...
(c) where a diploma or apprenticeship
certificate that requires at least one year of
full-time classroom study has been completed
at a college, trade school or other post-secondary
institution, the greater number of the following
applicable units:
...
(ii) in the case of a diploma or
apprenticeship certificate program
that requires completion of a secondary
school diploma referred to in subparagraph
(b)(ii) as a condition of admission,
thirteen units;
=================================================================
Colonne I Colonne II Colonne III
Facteurs Critères Nombre maximal
de points
------------------------------------
_1. Études (1) Sous réserve des paragraphes (2) à
(4), des points d'appréciation sont attribués
selon le barème suivant_: 16
...
b) lorsqu'un diplôme d'études
secondaires a été obtenu, le plus
élevé des nombres de points
applicables suivants_:
...
(ii) si le diplôme rend le
titulaire admissible à des
études universitaires dans
le pays où il a été obtenu,
10 points,
...
c) lorsqu'un diplôme ou un certificat
d'apprentissage d'un collège, d'une
école de métiers ou de tout autre
établissement postsecondaire, qui
comporte au moins un an d'études à
temps plein en salle de cours, a été obtenu,
le plus élevé des nombres de points
applicables suivants_:
...
(ii) si le programme d'études
menant à un tel diplôme ou
certificat exige un diplôme
d'études secondaires visé au
sous-alinéa b)(ii), 13 points;
[18] I agree with the Applicant's submission that the Visa Officer admitted on cross-examination that he ought to have awarded thirteen units of assessment because the Applicant had completed an apprenticeship program. The Visa Officer had awarded ten units. While the Visa Officer, on cross examination, seemed to second guess his award of ten units, I am not persuaded that the Visa Officer committed an error when he assessed the Applicant's education at ten units. Furthermore, I am not persuaded that the Visa Officer was correct in the admission he made upon cross-examination.
[19] The evidence shows that the Applicant had indeed completed a two year apprenticeship program. However, there is no evidence to show that this apprenticeship was conducted under the auspices of a college, trade school or other post secondary institution. The record contains the certificate that was issued by Schön Air but there was nothing on this certificate to show that the apprenticeship was anything other than a program provided by the Applicant's employer.
[20] There was no positive duty upon the Visa Officer to further explore the nature of this apprenticeship program with the Applicant. It was up to the Applicant, in making his application, to produce the evidence to support his case. The record contains a letter from counsel for the Applicant in which counsel described the apprenticeship program as meeting the requirements of section 1(1)(c)(ii) of Schedule I, but there is no independent evidence to back up that assertion.
[21] The evidence supports the Visa Officer's assessment that the Applicant held a secondary school diploma, thereby meeting the requirements of section 1(1)(b)(ii) of Schedule I and qualifying for the award of ten units.
[22] While the evidence in the record suggests that the Visa Officer had very little experience in assessing applications for permanent residence in Canada and did not wholly understand the assessment of educational qualifications, I am not satisfied that the lack of experience and apparent misunderstanding led to an unreasonable result. The evidence presented by the Applicant only supported the award of ten units and whether the Visa Officer reached that conclusion by luck rather than design, the result remains the same. The Applicant had not established that he is entitled to an award of thirteen units and accordingly, I see no basis for intervening with the Visa Officer's assessment in this regard.
[23] As for the argument advanced concerning an improper assessment of the English language ability, including a failure to conduct a writing test, the Applicant has failed to establish that the Visa Officer committed a material error. According to the record, the Applicant agreed with the downward assessment of his English language ability from "fluent" to "well". It appears that this adjustment occurred as the result of the Applicant's difficulty in understanding the question posed by the Visa Officer concerning his current employment. Having agreed with the Visa Officer about the lower assessment of his English language comprehension ability, I do not think it is now open to the Applicant to challenge that finding.
[24] I agree that the Visa Officer made a finding about the Applicant's writing ability without evidence relating to that ability. However, this is not a material error. Having regard to the decision of the Federal Court of Appeal in Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48 (F.C.A.), the commission of a non-material error is insufficient to justify judicial intervention in a discretionary decision of a visa officer.
[25] Finally, I turn to the argument advanced concerning the assessment of the Applicant's personal suitability. It is well established that assessment of this factor involves the exercise of discretion by a Visa Officer. In the absence of evidence that the Visa Officer failed to consider relevant evidence or considered extraneous material, there is no basis for intervention. In this regard, I refer to Gill v. Canada (M.C.I.) (1996), 34 Imm. L.R. (2d) 127 (F.C.T.D.) where it was held that visa officer's conclusions on personal suitability are entitled to considerable deference from the Court. There is no basis for intervening on this ground.
[26] In the result, this application for judicial review is dismissed. There is no question for certification arising.
ORDER
The application for judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET NO.: IMM-1712-01
STYLE OF CAUSE: SHAHID SALEEM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, JANUARY 16, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: THURSDAY, JANUARY 23, 2003
APPEARANCES BY: Mr. Fernand A. Majid
Mr. J. Kayani
For the Applicant
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD: Fernand A. Majid
J. Kayani
Barristers & Solicitors
53 Village Centre Place
Suite 100
Mississauga, Ontario
L4Z 1V9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030123
Docket: IMM-1712-01
BETWEEN:
SHAHID SALEEM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER