Date: 19990223
Docket: IMM-188-98
BETWEEN:
SHAHID MOHAMMAD TAJAMMUL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN J.:
1 This is an application for judicial review of a decision dated December 22, 1997, of visa officer Marlene Edmond, Canadian Consulate General, New York City, New York, USA, wherein the applicant's application for permanent residence in Canada was refused.
FACTS
2 The applicant is a national of Pakistan and has been residing in the United States since 1995. In October 1996, the applicant applied to the Canadian Consulate in New York for permanent residence in Canada. Between 992 and 1995, the applicant worked with A.E.G., in Karachi, Pakistan, as an Electrical Wiring Inspector. From 1995 to the present, the applicant has been employed with Sunny General Waterproofing Company in Brooklyn, New York, as an Electrical Wiring Inspector.
3 On December 29th, 1997, the applicant received a letter from the Canadian Consulate General refusing his application for permanent residence to Canada.
DECISION OF THE VISA OFFICER
4 The visa officer's decision states:
I have now completed the assessment of your application and regret to inform you that you do not meet the requirements for immigration to Canada.
Pursuant to section 8(1) of the Immigration Regulations, 1978, independent applicants, the class in which you have applied, are assessed on the basis of education, vocational preparation, experience, occupational demand, arranged employment or designated occupation, Canadian demographic factors, age, knowledge of English and French languages and personal suitability.
You were assessed based on the requirements for Electrical Wiring Inspector (CCOD 8736-110). A breakdown of your assessment follows:
Age:10
Occupational Factor:05
S.V.P:18
Experience:00
A.R.E.:00
Demographic Factor:08
Education:13
English:06
French:00
Bonus:00
Personal Suitability:06
TOTAL:66
As indicated at the interview, you do not meet the requirements for your intended occupation in Canada. In my opinion, your job duties and work experience do not correspond to the duties of an Electrical Wiring Inspector as described in the CCDO (Canadian Classification and Dictionary of Occupations).
Furthermore, at your selection interview, you claimed to have worked in Pakistan as an Electrical Wiring Inspector right after completing your training at the age of 18. You could not provide much information about your duties and work experience in Pakistan.
You have stated on your application form (IMM8) that you have been working since December 1995 as an Electrical Wiring Inspector in New York. You admitted at the interview that you have no employment authorization and no license to work in the USA as an Electrical Wiring Inspector. You stated that you are Mr. Bhutta's helper.
As there is no credible evidence of your training or your employment experience, I concluded that you are not qualified as an Electrical Wiring Inspector. I awarded you zero unit for the factor of experience.
Section 11(1) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of experience. You, therefore come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, and your application has been refused.
APPLICANT'S ARGUMENTS
5 The applicant submits that he should have received 08 units of assessment instead of 00, having worked as an Electrical Wiring Inspector for a period of 5 years.
6 The applicant submits that he is entitled to 09 units of assessment for the English language instead of 06 since he speaks, writes and reads English fluently.
7 It is submitted that although the visa officer completed her assessment pursuant to the statute and determined that the applicant did qualify under the designated occupation, the visa officer erred in failing to provide the applicant with 08 points of assessment for the experience factor: Muliadi v. Canada (Minister of Employment and Immigration) [1986], 2 F.C. 205 (C.A.).
8 It is submitted that the purpose of the Immigration Act is to permit immigration, not to prevent it. It is therefore submitted that the visa officer's assessment of the applicant's language ability falls substantially below average and was made contrary to the evidence and in such a manner as not to permit the applicant to obtain the 70 points minimum. It is submitted that the manner in which the decision was made indicates that it was biassed: Hajariwala v. Canada (Minister of Employment and Immigration), (1988), 6 Imm.L.R. (2d) 222 (T.D.).
RESPONDENT'S ARGUMENTS
9 It is submitted that the visa officer did not err in denying the applicant points in the assessment of his experience. The visa officer carefully considered the applicant's documentation concerning his claimed work experience as an electrical wiring inspector. The documentation provided by the applicant gave no details concerning his actual duties and responsibilities at both Sunny General Waterproofing Co. and AEG Pakistan (Private) Limited. The applicant could not explain at the interview how he was able to perform the duties of electrical wiring inspector at AEG Pakistan (Private) Limited if he had not received his diploma until August 1992. In addition, from the applicant's own evidence at the interview, his work experience at Sunny General Waterproofing Co., was that of a "electrical helper" and not that of an "Electrical Wiring Inspector" as described in the CCDO. Accordingly, the visa officer was entitled to conclude the applicant's on-the-job training simply did not qualify him to perform the duties contemplated in the occupation of electrical wiring inspector as described in the CCDO.
10 The applicant relies upon Lim v. Canada (Minister of Citizenship and Immigration), (1991) 12 Imm. L.R. (2d) 161 (F.C.A.), and Thanh v. Canada (Minister of Citizenship and Immigration) (F.C.T.D., January 15, 1997, IMM-3054-96).
11 It is submitted that the applicant's allegations of "bias", "failure to consider evidence" and "contrary to the evidence" are without foundation. The applicant is essentially asking this Honourable Court to re-weigh the evidence and substitute a different assessment for the visa officer's face-to-face assessment of his language ability and suitability. It is submitted that this is not open to the Court on an application for judicial review. The visa officer thoroughly assessed the applicant's language ability, personal suitability and the totality of his circumstances in accordance with the broad discretion vested in her by the applicable legislation, which includes the responsibility for weighing evidence. The applicant's claimed ability in English means relatively little when contradicted by the visa officer's personal observations and objective evidence. With respect to the applicant's personal suitability, the visa officer considered several factors, and cannot be said to have failed to consider the evidence before her. It is submitted that the applicant has not demonstrated any error in the visa officer's exercise of her discretion. Gill v. Canada (Minister of Citizenship and Immigration) (F.C.T.D., Imm-1885-94).
12 The applicable legislative provisions vest a broad discretion in the visa officer which includes the responsibility of weighing the evidence before her. It is submitted that it is evident on a reading of the visa officer's affidavit, notes and refusal letter that she fully and fairly considered the applicant's application and that her inferences and conclusions enjoy the characteristics of both logic and reasonableness. The law is clear that in such cases, the Court should not interfere. Boulis v. Canada (Minister of Employment and Immigration) [1974] S.C.R. 875, Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2.
ANALYSIS
13 The standard of review regarding decisions of visa officers has been established:
In Chiu Chee To v. Canada (Minister of Employment and Immigration), the Federal Court of Appeal held that the appropriate standard of review of the discretionary decisions of visa officers with respect to immigrant applications was the same as that enumerated in Maple Lodge Farms Ltd. v. Canada, supra, at pages 7 and 8 where MacIntyre, J., stated as follows:
It is, as well, a clearly-established rule that the court 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 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.
[14] I agree with the respondent's arguments, which are supported by the jurisprudence. I find the applicant's arguments far from convincing. He did not demonstrate that the visa officer erred in her appreciation of the evidence. There is no error of law apparent on the face of the record and no breach of the duty of fairness. I also fail to see how the jurisprudence cited by the applicant might apply to this review.
[15] Based on the evidence, I believe that the visa officer has exercised her statutory discretion in good faith and in accordance with the principles of natural justice. Therefore, the judicial review is dismissed.
OTTAWA, ONTARIO B. Cullen
February 23, 1999. J.F.C.C.