Date: 19981009
Docket: IMM-4058-97
BETWEEN:
AMTHULLAH IQBAL MUHAMMAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
EVANS J.
[1] This is an application pursuant to section 18.1 of the Federal Court Act for judicial review of a refusal by a visa officer to issue a visa to the applicant. The applicant requests that the visa officer's decision be set aside, and the respondent ordered to consider and process according to law the applicant's application for permanent residence in Canada.
A. The Facts
[2] The applicant, a citizen of Pakistan, applied to the Canadian High Commission in Colombo, Sri Lanka, in the assisted relative category. On his application form he stated that his intended occupation in Canada to be "Minicomputer/Microcomputer Specialist 2183-158", which corresponds to an occupation in the Canadian Classification and Dictionary of Occupations (CCDO), the job classification system then used by the respondent. A letter written on behalf of the applicant by a firm of immigration consultants stated that the applicant was currently employed by an oil company in Oman as a senior technical assistant, working as a member of a team on a project to computerize oil and gas well data on a new Oracle-based system ('WICON'), so that data can be collected from different application programmers. The applicant has a B.Sc. in physics, a diploma in electrical engineering and an M.Sc. in engineering, and has attended a training course in "Basic AutoCAD', that is, computer assisted drawing.
[3] The applicant was interviewed by the visa officer, Mr. Nectoux, on May 5, 1997. The visa officer was particularly concerned to question the applicant about his current employment in order to determine whether his work experience was relevant to his intended occupation in Canada. In his affidavit, the applicant stated that he told Mr. Nectoux that he was responsible for the material section of the 'WICON' computerization project, and that his job was to "review and correct the data coded by my colleagues and myself", and that "the software packages that we code are implemented by us as the company requires". The applicant told the visa officer that he also had experience using AutoCAD for drawing sketches of the materials for particular oil wells and fields.
[4] During the interview, the visa officer spoke in French on the telephone to a colleague about the applicant's employment, and did not disclose to the applicant, who, as the visa officer was aware, has no knowledge of French, what was said. The visa officer stated in his affidavit that he asked his colleague, who had considerable experience in the computer field, including with oil companies, whether she was familiar with the systems being used by the applicant, or with other developments in computer equipment that might have changed the duties of "minicomputer/ microcomputer specialist" from those described in the CCDO. He stated that she told him that she was not aware of those particular systems, and that to the best of her knowledge, the existing CCDO/NOC classifications were still relevant, and should be applied to assess the applicant's experience.
[5] After the interview, the immigration consultants employed by the applicant wrote a letter, dated May 8, 1997, to the Canadian High Commission in Colombo in an attempt to clear up any misunderstanding that the visa officer may have had about the nature of the applicant's experience and its relevance to his intended occupation. Accordingly, the letter emphasized the applicant's educational and professional qualifications, and that the assignments of the team at the oil company, of which the applicant is a senior member, include "addition and modification of the system and development of future computerized automation of the well information." The letter also stated that "even if assessed under NOC 2163.0 [computer programmer], Mr. Muhammad scored 73 units of assessment, before awarding points for personal suitability." The letter also raised a concern about the telephone conversation between the visa officer and his colleague, suggesting that, "in all fairness", the applicant should have been given an opportunity to address the other officer if she "was indeed an expert in the field".
B. The Visa Officer's Decision
[6] In a letter dated July 22, 1997 the visa officer advised the applicant that his application had been rejected, because he had awarded the applicant 0 units of assessment for experience, and section 11(1) of the Immigration Regulations, 1978 provides that an immigrant visa shall not be issued to a person in the class in which the applicant had applied if the applicant is awarded no units of assessment for the factor set out in item 3 in Column 1 of Schedule 1, that is "Experience'.
[7] The visa officer stated that the description of his duties that the applicant gave at the interview indicated that he was primarily concerned with "data entry and treatment", the analysis of data to make sure that it was compatible with the new system, and any necessary conversion of the data. This experience, the letter stated, was not relevant for the applicant's intended occupation, which the CCDO describes as requiring a person to do one or more of the following: "evaluate, implement, code, test or modify externally supplied or internally developed mini/microcomputer hardware and software." In the CAIPS notes that the officer made at the time of the interview, he had concluded: "closer to computer operator or computer aided draughtsman but would fail on points for both of these professions," because of insufficient labour demand.
[8] The visa officer had awarded the applicant 5 units of assessment, out of a possible 10, under item 9, "Personal Suitability". In his affidavit, Mr. Nectoux explained this assessment on the ground that the applicant had not demonstrated initiative "as he failed to make personal attempts to obtain information regarding the labour markets and potential employers in Canada" (emphasis added). It should be noted here that the applicant's immigration consultants had attached to their letter of May 8, 1998, photocopied clippings from Canadian newspapers, and other sources, advertising jobs that seemed to call for persons with the applicant's experience, especially as analysts or developers with Oracle-based systems.
C. The Issues
[9] The applicant raised two concerns about the visa officer's assessment of his experience. The first concerned the procedural fairness of the decision-making process, namely, the officer's consultation with his colleague, the content of which was not disclosed to the applicant so that he could respond. The second was the visa officer's failure to assess the relevance of his experience for the related occupation of computer programmer (NOC 2163.0).
[10] In addition, the applicant alleges that the visa officer erred in law in his assessment of the applicant under item 9, "Personal Suitability". More particularly, he argued that the visa officer was estopped from counting against the applicant the fact that his agents, the immigration consultants, rather than the applicant himself, had gathered information about job opportunities in Canada for persons with the applicant's experience. Moreover, he submitted, when assessing an applicant's "initiative" under "personal suitability", a visa officer should not require that the applicant had personally made enquiries about the labour market, as opposed to engaging a firm to do this on his behalf.
D. Analysis
| Issue 1: Did the visa officer act in breach of the duty of procedural fairness when he discussed with a colleague, in a language that he knew that the applicant did not understand, the applicant's experience, without subsequently disclosing to the applicant what was said and offering the applicant an opportunity to respond? |
[11] It is well established that, in assessing applications, visa officers are subject to the duty of fairness, and that it is a breach of their duty for a visa officer to base a decision on extrinsic evidence on which the applicant has had no opportunity to comment: see, for example, Shah v. Canada (Minister of Employment and Immigration) (1994), 29 Imm. L.R. (2d) 82 (F.C.A.), which concerned an application for a visa on humanitarian and compassionate grounds under section 114(2) of the Immigration Act, a decision-making context which, because of its highly discretionary nature, is regarded as attracting fewer procedural duties than those applicable to a visa officer when assessing an independent applicant or an assisted relative, as in the present case.
[12] A major difficulty with the applicant's submission, however, is that there is no evidence that, as a result of the telephone conversation, the officer obtained information about the applicant, or the relevance of his work experience to the job classification, that he used to make his decision. In his affidavit, Mr. Nectoux states, in effect, that he was merely double-checking with an officer, whom he knew to be knowledgeable in the area of computers and the oil industry, to see whether she had additional information that would be of assistance. She said that she did not, and advised the visa officer to apply the existing job classifications, thus confirming a result that he stated that he had already reached.
[13] The fact that the other officer was not familiar with the system with which the applicant was working was not "extrinsic evidence" that the visa officer was obliged to disclose. In the circumstances, it was not prejudicial to the applicant, and it is difficult to see what the applicant could usefully have said in response if the conversation had been disclosed to him.
[14] Counsel for the applicant, Mr. Chaudhary, suggested that what the officer said might have created an unfavourable impression in the visa officer's mind, in that he might have inferred from the fact that a person with the computer experience of the other officer was not familiar with the particular system reflected adversely on the credibility or the quality of the professional experience of the applicant. On the facts of this case, I am satisfied that this did not happen. Not only did the visa officer testify that what the other officer told him merely confirmed him in a decision that he had already made, but also it was of the most tangential relevance to the issues in dispute, namely the "fit" of the applicant's experience to the relevant job description in the CCDO. Accordingly, I reject the argument that the visa officer breached the duty of procedural fairness by not disclosing to the applicant the content of the telephone conversation so that he could respond to it.
| Issue 2: Was the visa officer in breach of his legal duty when he failed to assess the applicant's experience for the occupation of computer programmer? |
[15] The first way in which the applicant put his point was by saying that visa officers are under a legal duty to assess applicants in the occupation for which they request to be assessed (see, for example, Uy v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 172 (F.C.A.); Issaeva v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 1679 (F.C.T.D.; December 18, 1996)). Although the applicant did not originally designate "computer programmer' as an intended occupation, there was an implied request to this effect in the letter of May 8, 1997 written on behalf of the applicant by the immigration consultants after they had debriefed the applicant immediately following his interview with Mr. Nectoux. In that letter, the consultants had said: "Even if assessed under NOC 2163.0 [the classification for computer programmers], Mr. Muhammad scores 73 units of assessment, before awarding points for personal suitability".
[16] This statement was made at the end of a paragraph of the letter in which the consultants had urged the visa officer to look again at the nature of his employment, which would confirm the consultants' assessment that the applicant's experience and job title fitted him very well for his intended occupation of "mini/microcomputer specialist". An examination of the job description of a computer programmer (NOC 2163.0) reveals that the tasks associated with it involved a smaller range of duties than those in NOC 2162, "Computer Systems Analysts", which is the equivalent of CCDO 2183-158, "Mini/microcomputer Specialist".
[17] I am unable to construe the reference in this letter as a request to the visa officer to assess the applicant's experience for the occupation of "Computer Programmer". Rather, the writer of the letter seems to have made the reference for the rhetorical purpose of supporting the contention that the applicant's experience fitted him for the tasks of his intended occupation, by demonstrating that they would easily have qualified him for the different, but related occupation of computer programmer.
[18] Mr. Chaudhary submitted in the alternative that, even if the applicant did not request that his experience be assessed for the occupation of computer programmer, the visa officer was under a legal duty to do so. He relied on a decision by Mackay, J. in Parmar v. Canada (Minister of Citizenship and Immigration) (IMM-3177-96; F.C.T.D.; November 12, 1997), in which he stated that, even if an applicant had not represented that she or he was qualified for occupations other than those that she or he had identified:
| In my view, the visa officer must consider the applicant's whole work experience, and the occupations inherent in it, and must provide the applicant with an opportunity to submit evidence of his or her qualifications. |
However, as counsel for the respondent pointed out, MacKay J. also went on to say in the next sentence that:
| Where there is no evidence presented of alternate or inherent occupations, the officer does not err in failing to consider other occupations than those which the applicant has requested. |
[19] The relevant question therefore is whether the applicant had provided sufficient evidence in his application, at the interview and in the subsequent correspondence from the immigration consultants, to show that the occupation of computer programmer as described in NOC 2163 was "inherent" in the applicant's work experience. One of the sources of difficulty with this visa application is the lack of clarity and specificity with which the applicant described the duties that he performed in the course of his employment. A letter from the applicant's employer might have clarified matters. However, while the visa officer is not permitted to adopt a passive posture in processing an application, at the end of the day it is the responsibility of the applicant to present to the visa officer complete information about his experience in a manner that is readily comprehensible.
[20] NOC 2163 includes in its description of the duties of computer programmers the responsibility to
| "write computer programs or software packages by coding instructions and algorithms into machine readable form." |
In his affidavit the applicant stated that he told the visa officer at the interview that his work included coding the material section of the program, and coding data.
[21] It is not at all clear that these tasks correspond to the description quoted above of the duties of a computer programmer: coding data in order to transfer it to another database is not the same as coding instructions and algorithms into machine readable form. The applicant also stated that to "the software packages that are code(d) are implemented by us as the company requires". I must confess to finding this description quite mystifying, and counsel was unable to shed much light on what it meant.
[22] The immigration consultants also mentioned in their letter that the applicant's work included "addition and modification of the software", a task which does correspond to one of the duties attributed by NOC 2163 to computer programmers. It is possible that the CCDO's description of some occupations, especially those related to information technology, were outdated. However, until changed, they are binding in law on visa officers, and on this Court: Haughton v. Canada (Minister of Citizenship and Immigration), [1996] F.C.T. No. 421 (IMM-1310-95; F.C.T.D.; November 29, 1996).
[23] Despite the contention to the contrary by counsel for the Minister, Ms. Hendriks, I am prepared to assume that the visa officer is under a duty to consider material elucidating the experience of the applicant submitted after the interview, but before the decision letter refusing the visa has been written, and that the consultants' letter should therefore have been taken into account when the visa officer was determining whether the applicant was qualified to obtain employment as a computer programmer was inherent in the totality of his work experience. I am also willing for the purpose of this decision to infer from the visa officer's letter of decision and affidavit that he did not assess the relevance of the applicant's experience for the occupation of computer programmer.
[24] Nonetheless, I have concluded that the visa officer did not err when he failed to assess the applicant under NOC 2163. The explanations provided by the applicant of the nature of his duties was simply too vague and lacking in clarity to trigger a duty in the visa officer to make an assessment for an occupation other than that expressly designated by the applicant. As I have already indicated, visa applicants have the burden of presenting relevant information about the nature of their employment duties fully and clearly. It would be quite inappropriate in my view to require visa officers to try to work out, on the basis of an incomplete, vague or difficult-to-comprehend description, what non-designated occupations were "inherent" in the applicant's experience.
[25] In my opinion, therefore, the visa officer did not err in law in failing to assess the applicant for any occupation other than that for which he had applied, namely that of "mini/microcomputer specialist" (CCDO 2183-158), and its NOC equivalent, 2162. It should also be noted that the visa officer did assess the applicant for two other occupations, CAD draughtsperson and computer operator, and found that there was not enough labour market demand to give him sufficient points.
[26] Issue 3:
| (a) Was the visa officer estopped from not awarding points for initiative under item 9, "Personal Suitability", because the applicant had used the services of immigration consultants to gather information about the labour market demand in Canada for his skills? |
| (b) Did the visa officer err in law in requiring as evidence of "initiative" that the applicant personally must have collected labour market information about the demand in Canada for his skills and experience? |
[27] Mr. Chaudhary argued that the visa officer was estopped from regarding as adverse to the applicant the fact that he had engaged immigration consultants to prepare his visa application, including the collection of advertisements designed to show that there were employment opportunities in Canada for persons with work experience similar to that of the applicant. The visa officer was obviously fully aware that consultants were acting on the applicant's behalf, and there is nothing in the statutory framework, or the published policy of the respondent, about the propriety or otherwise of using consultants in this context. It followed, Mr. Chaudhary submitted, that the visa officer was under a duty to advise the applicant that he would forfeit points under item 9 if he employed others to collect information that, were he a person of initiative, he would have collected for himself.
[28] I cannot accept this argument. I do not think that it can be said that it is a reasonable inference from the law and practice relating to the use of immigration consultants that applicants are not expected to take some positive steps to explore job opportunities in Canada that might be available to them. In this case, the consultants appear to have assembled the advertisements, not for the purpose of enabling the applicant to enquire about or to apply for any of the jobs being advertised, but merely as evidence to persuade the visa officer that the applicant's particular experience was in demand in the Canadian labour market.
[29] Thus, in the absence of any representation by the visa officer, whether express or implied, or by word or course of conduct, upon which the applicant relied, I see no basis for an argument that there was an estoppel. Moreover, I would reject any suggestion that the fact that an applicant had engaged immigration consultants to assist in a visa application was in itself evidence of initiative, resourcefulness or any other similar quality that will help the applicant to become successfully established in Canada. This would tend to prejudice those without the financial resources to engage immigration consultants, whose fees might increase even further if applicants were awarded units of assessment for hiring them. In addition, it would entrench even more deeply the notion that the allocation of immigrant visas is so thoroughly "bureaucratized' and "legalized' that individuals are unable to gain access to the process without the assistance of the 'immigration industry'.
[30] Finally, the applicant argued, the visa officer erred when he interpreted the "initiative" or "resourcefulness" prescribed under item 9 as qualities reflecting the personal suitability of the applicant to become successfully established in Canada as requiring that an applicant make "personal attempts" to explore employment opportunities in Canada. I can certainly imagine situations in which it would be unreasonable for a visa officer to refuse to give credit under item 9 simply because the applicant had engaged the assistance of an agent. For example, if the applicant had instructed the agent to circulate his résumé to employment agencies, or to collect information about suitable jobs and to submit the applicant's résumé and a covering letter as appropriate, it would be perverse for a visa officer to discount these efforts, simply because the applicant has not been personally and directly involved at each step in the process.
[31] However, I am not satisfied on the facts of this case that the visa officer erred in finding no evidence of initiative by the applicant of a kind that would assist him to become successfully established in Canada. As far as I can tell from the evidence, the applicant merely employed the consultants to assist in his visa application, and their collection of labour market information was solely for this purpose. There is no indication in the record of an attempt by the applicant, or by the agents on his behalf, to explore employment opportunities by contacting prospective employers or employment agencies to enquire about the applicant's prospects for employment.
[32] For these reasons I dismiss the application for judicial review.
ORDER
The Application for Judicial Review of the Decision by a visa officer dated July 22, 1998 refusing an immigrant visa to the Applicant is dismissed.
"John M. Evans"
Judge
TORONTO, ONTARIO
October 9, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4058-97
| STYLE OF CAUSE: AMTHULLAH IQBAL MUHAMMAD |
- and -
| THE MINISTER OF CITIZENSHIP & IMMIGRATION |
DATE OF HEARING: WEDNESDAY, OCTOBER 7, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: EVANS, J.
DATED: FRIDAY, OCTOBER 9, 1998
APPEARANCES:
Mr. Max Chaudhary
For the Applicant
Ms. Lori Hendriks
For the Respondent
SOLICITORS OF RECORD:
Chaudhary Law Office
| Barristers & Solicitors |
| 812-255 Duncan Mill Road |
| North York, Ontario |
| M3B 3H9 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981009
Docket: IMM-4058-97
Between:
| AMTHULLAH IQBAL MUHAMMAD |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP & IMMIGRATION |
Respondent
REASONS FOR ORDER
| AND ORDER |