Date: 20030117
Docket: IMM-980-00
Neutral citation: 2003 FCT 42
OTTAWA, ONTARIO, FRIDAY, THIS 17th DAY OF JANUARY, 2003
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
SHYAMA PRASAD
BANDYOPADHYAY
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of visa officer Julia Montgomery (the "Officer"), dated January 13, 2000, rendered under the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") wherein the Officer refused the applicant's application for permanent residence.
[2] The applicant, Dr. Shyama Prasad Bandyopadhyay, is a citizen of India. His first application for permanent residence in Canada, which listed his wife and their two sons as dependants, was refused on July 10, 1999. On August 11, 1999, Sharlow J. granted a motion for a consent judgment that the decision of the visa officer on the first application be set aside and that the application for permanent residence be referred to a different visa officer for redetermination.
[3] The applicant's file was then transferred to the Canadian High Commission in London, England. The applicant and his wife attended an interview on October 5, 1999. For reasons of procedural fairness, the applicant was assessed as of August 6, 1996, the date of his original application for permanent residence.
[4] The Officer assessed the applicant in the Community Organization Worker (CCDO 2331-114) occupation and awarded the following units of assessment:
FACTOR: UNITS AWARDED:
Age 08
Occupational Demand 05
Specific Vocational Preparation/
Education and Training Factor 18
Experience 00
Arranged Employment 00
Demographic Factor 08
Education 15
English 09
French 00
Bonus (Close Relative in Canada) 00
Personal Suitability 05
TOTAL 68
[5] The Officer determined that the applicant did not have the professional qualifications or the requisite work experience for a Community Organization Worker. As a result, the applicant did not meet the requirements of subsection 11(1) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations"), which would permit her to issue an immigrant visa despite the award of zero units of assessment for the experience factor. The Officer then assessed the applicant as an Administrative Officer (CCDO 1179-182), even though she determined that the applicant's job description did not cover the main duties of that occupation. Once again, the applicant failed to obtain sufficient units of assessment to qualify for an immigrant visa. The Officer also considered the occupation which appeared to most closely fit the applicant's job description, that of Medical Health Officer (CCDO 1119-186). Since there was zero occupational demand for that occupation, subsection 11(2) of the Regulations prohibited the issuance of an immigrant visa based on that occupation. Finally, the Officer assessed the Applicant against the job description contained in the National Occupational Classification system for Administrative Officer (NOC 1221.0). This occupation has a demand of 1 and an education and training factor of 7. As a result, the applicant did not receive the required number of units of assessment.
[6] This application for judicial review raises three issues. Did the Officer err in law:
1) by failing to provide reasons for the personal suitability assessment?
2) by considering irrelevant factors in the personal suitability assessment? or
3) by failing to assess the applicant under the Community and Social Services Workers Occupation (NOC 4212)?
1. Did the Officer err in law by failing to provide reasons for the personal suitability assessment?
[7] The applicant submits that it was incumbent upon the Officer to explain why the applicant had received five units of assessment for personal suitability. The applicant alleges in this regard that the Officer made no effort to explain how personal suitability had been tabulated in relation to the qualities of initiative, motivation, adaptability or other qualities.
[8] The applicant cites Zheng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 31 (T.D.) (QL), where O'Keefe J. made the following statement at paragraph 16 regarding the provision of reasons for the personal suitability assessment:
It is my opinion that what would be required, as was decided in Baker [v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817], to constitute reasons, would be the notes of the visa officer or his letter to the applicant addressing the various issues. ... As I have already stated the notes and letter of the visa officer in this case do not mention what he considered in arriving at a total of five (5) points for personal suitability. If the notes or the letter to the applicant listed the factors considered in arriving at the total of five (5) points then it would not be the role of this Court to second guess the visa officer unless the reasons were unreasonable. Barring unreasonableness it is not the role of the Court to substitute its opinion for the opinion of the visa officer.
(my emphasis)
[9] In this case, the Officer's CAIPS notes mention the factors that she considered in arriving at her assessment for personal suitability. Although the CAIPS notes do not contain a specific heading for personal suitability, it is apparent from those notes that the Officer considered the following factors in her personal suitability assessment: the applicant's efforts to contact Canadian health recruitment agencies, his wife's occupation, the initial enquiries made by his eldest son to the University of Windsor, the funds available to the applicant, the fact that it would be virtually impossible for the applicant to practice medicine in Canada, the possibility that the applicant's age would be a factor in his ability to find suitable employment in Canada and the relevance of his health care experience in West Bengal to the health care needs in Alberta.
[10] It is apparent from the Officer's notes which factors she considered in awarding five units of assessment for personal suitability; as a result, the decision of the Officer cannot be quashed on this ground.
2. Did the Officer err in law by considering irrelevant factors in the personal suitability assessment?
[11] As mentioned earlier, the Officer awarded five points for personal suitability; the maximum that can be awarded is ten points. In this regard, the applicant submits that the Officer erred in considering the applicant's age as a barrier to his procuring employment in his specified field in Canada. Her CAIPS notes indicate that she considered that his age "would probably be a factor in finding suitable employment in their area of expertise". Moreover, the applicant's age was only one of the several factors that she took into consideration in assessing his personal suitability.
[12] An application to be admitted to Canada as an immigrant involves a discretionary decision on the part of the visa officer who is required to make that decision on the basis of the factors listed in Column I of Schedule I of the Regulations. If that statutory discretion has been exercised in good faith and, where required, in a manner consistent with the principles of natural justice or procedural fairness, and if reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, then this Court should not intervene (To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 at para. 3 (C.A.) (QL), applying to a visa officer the comments made by McIntyre J. in Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8).
[13] The number of units of assessment awarded for personal suitability is within the discretion of the Officer (Schedule I to the Regulations, Column I, Factor 9). In Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1080 (T.D.) (QL), Dubé J. held, at paragraph 6, that the factors outlined in Schedule I to the Regulations may be considered in the assessment of personal suitability insofar as those factors "elucidate the applicant's adaptability, motivation, initiative, resourcefulness and similar qualities." This passage was cited with approval by Dawson J. in Anwer v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1172 at para. 10 (T.D.) (QL). The age of the applicant is a Schedule I factor. At the time of the interview, the applicant was 48 years old. In my view, the Officer was entitled to consider the impact of the applicant's age when assessing his ability to become economically established in Canada. While the applicant's age certainly would not prevent him from obtaining employment in his field in Canada, it may make it more difficult for him to obtain that employment. As a result, the applicant's age was a relevant factor in terms of his ability to become economically established in Canada and the Officer did not err by considering his age as one of the factors in her personal suitability assessment.
3. Did the Officer err in law by failing to assess the applicant under the Community and Social Services Workers Occupation (NOC 4212)?
[14] The Officer assessed the applicant in the following three occupations: Community Organization Worker (CCDO 2331-114), Administrative Officer (CCDO 1179-882; NOC 1221.0) and Medical Health Officer (CCDO 1119-186). The applicant submits that the Officer erred by failing to assess him as a Community and Social Services Worker (NOC 4212), which was the successor to the CCDO occupation of Community Organization Worker.
[15] With respect to the assessment of the experience factor, Dawson J. recently addressed the appropriate standard of review in Dizon v. Canada (Minister of Citizenship and Immigration), 2002 FCT 115, [2002] F.C.J. No. 135 at para. 12 (T.D.) (QL)):
[t]he determination of whether an applicant has performed the duties of the intended occupation is a pure question of fact. Paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7 provides that findings of fact are reviewable if made in a perverse or capricious manner, or without regard to the material before the visa officer.
[16] The Officer's CAIPS notes indicate that she questioned the applicant about his work experience and addressed his lack of experience and training for the position of Community Social Organizer during the interview. These notes indicate that the applicant agreed that he did not have the requisite qualifications for that occupation and that he would be required to enhance his qualifications with a Social Work degree in order to work as a Community Organization Worker in Canada. The material in the Certified Tribunal Record indicates that, while the applicant has a very impressive educational background and extensive work experience, his education and experience do not relate to the occupation of Community Organization Worker. In my view, the Officer's conclusion on the applicant's lack of experience as a Community Organization Worker was not made in a perverse or capricious manner or without regard to the material before her.
[17] Furthermore, the applicant has failed to convince me that the result would have been any different had the Officer used the NOC description. According to NOC 4212, a Community and Social Services Worker "administers and implements a variety of social assistance programs and community services, and assists clients to deal with personal and social problems." According to the NOC description, a degree in social work, counselling or other social science discipline "is usually required" to obtain employment as a Community and Social Service Worker. The applicant does not have a degree in any of those disciplines. The NOC description also states that, in some cases, previous work experience in a social service environment may act as a "substitute" for the formal educational requirements.
[18] In order for the applicant's previous work experience to act as a substitute for the formal educational requirements, "there must be some persuasive reason for thinking that the applicant will be able to hold employment in the intended occupation despite the fact that the "usual" educational qualifications are not present" (Hara v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1395 at para. 6 (T.D.) (QL)). These comments of Reed J. in Hara, supra were adopted by Sharlow J. in Karathanos v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1528 (T.D.) (QL). In this context, Sharlow J. added, at paragraph 25, that the visa officer "should have considered [the Applicant's] education, training and experience in its entirety with a view to determining whether it was the approximate equivalent of a master's degree in archival studies, library science or history".
[19] It is apparent here that the majority of the duties performed by the applicant as a medical officer and health administrator are administrative or managerial in nature and generally do not correspond to the duties of a Community and Social Services Worker, as listed in the NOC description. Although I am of the view that the Officer did not err in failing to assess the applicant as a Community and Social Services Worker, even if she was obligated to assess him in that occupation, there is no indication that it is an error of any consequence; based on the evidence on record, the applicant still would have received zero units of assessment for experience and would consequently be ineligible for an immigrant visa.
Conclusion
[20] For the above reasons, I have determined that this judicial review must fail. I find no special reason, in the exercise of discretion, to award costs to either party. In his Memorandum of Argument, the applicant alleged that counsel for the respondent was less than diligent in obtaining the dates for availability of the Officer for her cross-examination, and as such, has submitted that costs should be awarded to the applicant regardless of the outcome of this application. This issue was not addressed at the hearing. In any event, while there was some delay in scheduling the cross-examination of the Officer, the majority of this delay was due to the fact that the Officer was absent on bereavement leave after her husband passed away. No question of general importance to be certified has been proposed by counsel.
ORDER
The application for judicial review of the decision of the Officer, dated January 13, 2000, wherein the Officer refused the applicant's application for permanent residence is dismissed without costs.
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-980-00
STYLE OF CAUSE: SHYAMA PRASAD BANDYOPADHYAY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, JANUARY 13, 2003
REASONS FOR ORDER BY: MARTINEAU J.
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Mr. M. Max Chaudhary
Barrister & Solicitor
18 Wynford Drive
Suite 707
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent