Federal Court Decisions

Date: 20020212

Docket: IMM-4970-00

Neutral citation: 2002 FCT 154

BETWEEN:

                                                  SURINDERJIT SINGH SANDHAR

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MacKay J.

[1]                 In this application for judicial review the applicant seeks an order setting aside the decision of a visa officer of the Canadian High Commission in New Delhi, India, dated August 29, 2000, whereby the applicant's application for permanent residence in Canada was refused.

[2]                 The applicant's application for permanent residence was made pursuant to the guidelines for Family Business Applicants, within the assisted relative category of prospective immigrants. The family business job proposal submitted by the applicant's brother, the owner of a franchise restaurant operation in Canada, was approved by Canada Immigration. It concerned the job of an assistant manager responsible for the daily operations of the brother's restaurant, including human resources, purchasing, inventory control, finance and general administration.

[3]                 In his application for permanent residence the applicant indicated his intended occupation in Canada was that of an assistant manager. He was assessed by the visa officer in relation to the occupation of restaurant manager, which includes that of assistant manager, as described in NOC classification 0631. He was also assessed in the alternative occupation of farming supervisor (NOC 8253.1), an occupation more closely related to his experience.

[4]                 The applicant was interviewed by the visa officer on April 4, 2000 and contemporaneous notes were made at that time by the officer ("the CAIPS notes)". By a letter dated August 28, 2000 the applicant was advised that he did not meet the selection criteria in the occupation of restaurant manager, or in the alternative occupation of farming supervisor.

[5]                 In the refusal letter, the visa officer set out the units of assessment for various categories considered in relation to his application in respect to assistant manager of the restaurant. Among those categories the assessments for experience (00), English (02), and suitability (03), are questioned by submissions of the applicant, who also raises as an issue the perceived failure of the visa officer to consider exercising discretion pursuant to s-s. 11(3) of the Immigration Regulations, 1978 ("the Regulations").

[6]                 It is urged by the applicant that the visa officer failed to consider the objective of family reunification as stated in the guidelines for applications under the family business requirements set out in the immigration manual. Yet nowhere is this objective required to be, nor is it appropriately, weighed as a separate factor apart from those listed for assessment in Schedule I of the Regulations. Those factors are to be weighed for all applications abroad for permanent residence in Canada, and the objective of family reunification is fostered by requiring only 65 units of assessment for an assisted relative, rather than the 70 units required for those applying other than as family business applicants within the independent category.

[7]                 The applicant's affidavit indicates that the officer's assessment of the applicant's English language ability failed to take account of the likelihood of ready development of his English language capacity in light of his educational background, and also that pending that development the applicant's brother and his staff, who spoke Punjabi, would be available to work with him. In my view, those considerations were not open to the visa officer, whose responsibility includes assessing the applicant's language abilities, in reading, speaking and writing at least one of Canada's official languages, at the time the application for permanent residence is assessed. The visa officer made no reviewable error in awarding the applicant two units of assessment for his English abilities, having determined that he spoke and wrote English "with difficulty", but read it "well".

[8]                 It is urged for the applicant that the visa officer erred by failing to recognize that the applicant could perform the work of the offered job opportunity without restaurant-management experience. In my opinion the assessment of the officer did not fail to consider the applicant's general experience in relation to the job offered for in his letter of refusal, the officer notes specifically his assessment of the applicant's abilities generally in relation to the job offered, as follows:

...you must have in your work experience and aptitudes sufficient abilities to indicate that you could successfully fill the position being offered. You do not have any directly related work experience and I have determined that you cannot reasonably be expected to acquire within a reasonable time period the skills required for the proposed job. ...

[9]                 That conclusion cannot be said to be unreasonable in light of the experience of the applicant, exclusively as a farmer running a small family farm, who did not claim by his application or at his interview to possess general experience as a manager. To suggest after the officer's refusal, that this conclusion ignored the applicant's experience in managing his farm, fails to accept that the officer's CAIPS notes include reference to the applicant's farm and his supervision of a small full-time staff and seasonal workers. The applicant's experience was considered, and in my opinion the officer's conclusion that it was unrelated to, and provided no transferable skills to perform, the sponsored job as an assistant manager of a restaurant in Canada was within the officer's discretion.

[10]            It is no answer to the officer's assessment to urge that the offered job was in a restaurant in a highly controlled franchise operation with specific methods of operation for which the applicant would receive training if he were admitted to Canada. There is no evidence that information was before the visa officer, but even if it were, his task was to assess the applicant at the time the application was considered, not as his qualifications might be after some period of training and experience following his arrival in Canada. For the same reasons, the fact that the sponsoring brother in Canada had no prior restaurant experience before acquiring his restaurant franchise is irrelevant to the officer's assessment of the applicant seeking permanent residency in Canada as a permanent resident as a family business applicant.

[11]            The visa officer did assess the applicant's personal suitability, setting out in his letter of refusal that:

After reviewing this matter closely at interview, you have not satisfied me that you possess qualities such as adaptability, motivation, initiative and resourcefulness to the extent that your personal suitability to become successfully established in Canada warranted awarding higher units of assessment for this factor than the units of assessment (03) I have awarded you.

I am not persuaded that this assessment can be said to be patently unreasonable in light of the evidence presented by the applicant and his interview as it is reflected in the officer's CAIPS notes.

[12]            I am not persuaded, as the applicant submits, that the visa officer erred by failing to consider exercising the discretion provided under s-s. 11(3) of the Regulations. The exercise of this special discretion provides for positive support of an applicant where the visa officer concludes, for reasons to be approved by a senior officer, that the units of assessment do not fairly and fully reflect the likelihood of the applicant's ready establishment in Canada.

[13]            The applicant did not request with his application that discretion be exercised (see Lam v. M.C.I. (1998), 152 F.T.R. 316 at 317-318). While it is within the visa officer's discretion to act pursuant to s-s. 11(3) without a request by the applicant, there is no duty to do so. Moreover, in this case the CAIPS notes of the officer made at the time of the applicant's interview, indicate clearly, in my view, that the visa officer implicitly concluded this was not a case for the exercise of special discretion. Those notes are reflected, in part, in the letter of refusal, as follows:

At your interview you described your present occupation as farming. You also told me that you have always been a farmer. This establishes that you have not been involved in any other occupation except farming, whether it was on your own family land or on land taken by you or your family on lease from other farmers. You did not claim nor do you possess any experience as a manager. In addition, you do not possess any skills, education or training which can be transferred to perform job of an Assistant Manager/Manager of a restaurant in Canada.

You do not possess the level of fluency in the English language as has been claimed in your application form. You understand and speak English with difficulty although you have slightly less difficulty in reading English.

Conclusion:

[14]            In my opinion no ground is established that would warrant intervention of the Court. Thus, this application for judicial review is dismissed by separate Order.

                                                                                                                                                                       (signed) W. Andrew MacKay

                                                                                                              ___________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

February 12, 2002.