IMM-2092-96
BETWEEN:
ABDUS SALAM MANSOOR,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
SIMPSON, J.
Let the attached transcript of my Reasons for Order delivered orally from the Bench in Toronto, Ontario, the 16th day of January, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
March 3, 1997
IMM-2092-96
FEDERAL COURT OF CANADA
(TRIAL DIVISION)
BETWEEN:
ABDUS SALAM MANSOOR,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
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Before the Honourable Madam Justice Simpson
Courtroom No. 1, 361 University Avenue, 8th Floor
Toronto, Ontario, on Thursday, January 16, 1997
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REASONS FOR ORDER
COUNSEL:
Joseph Farkas for the Applicant
Lori Hendriks for the Respondent
This is an application by Abdus Salam Mansoor (the "Applicant") for judicial review of a decision of a visa officer (the "Officer") at the Canadian Consulate General in New York. In his decision, the Officer refused the Applicant's application for permanent residence.
THE FACTS:
The Applicant is a resident of Pakistan, and he has a dependant wife and five school-aged children. The Applicant has, among other qualifications, a diploma as a geological technician. He worked for eleven years in this capacity with the Saudi Arabian Oil Company in Saudi Arabia. Since leaving Saudi Arabia in 1992, the Applicant has lived in the United States.
On November 16, 1995, the Applicant applied for permanent residence in Canada. He gave Toronto as his intended destination and described his intended occupation as "oil company jobs or any suitable job or business". Following an interview on April 8, 1996, the Officer refused the Applicant's application for permanent residence by a letter dated May 17, 1996. The Officer awarded 15 units for Specific Vocational Preparation ("SVP") pursuant to Factor 2(f) of Schedule I of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations") and six units for work experience pursuant to Factor 3(c) of Schedule I. The Applicant also received six units for personal suitability. Counsel for the Applicant conceded that the Officer correctly calculated the units awarded for both SVP and work experience, but he took issue with the units assigned for personal suitability.
During argument, counsel for the Applicant handed up excerpts from a document entitled: "Immigration Canada, Applying for Permanent Residence in Canada: A Self-Assessment Guide for Independent Applicants" (Document No. IM-251-12-93E) (the "Guide"). Table 2 is found at page 13 of the Guide ("Table 2"). It indicates that applicants with an SVP of 13 to 18 units will be entitled to up to eight units for work experience in their occupation. Counsel for the Respondent conceded that this table can be misleading because, in some circumstances, the Regulations impose unit maximums which are not shown on Table 2. For example, in the Applicant's case, although he had an SVP of 15, the maximum number of units he could have been awarded pursuant to Factor 3(c) of Schedule I to the Regulations was six, not eight as Table 2 suggests.
Issues:
Applicant's counsel did not argue the matters covered in the Memorandum of Argument. Rather, the issues raised before me were:
1) Was the Officer under a duty, by reason of the rules of natural justice, to advise the Applicant that he was actually entitled to only six units of assessment for work experience rather than the eight units suggested by Table 2? Furthermore, was the Officer obliged to offer the Applicant an opportunity to submit further evidence to support his application?
2) Did the Officer err in failing to consider paragraph 3 in a letter from the Saudi Arabian Oil Company dated July 6, 1991, in his assessment of the Applicant's personal suitability?
3) Counsel for the Applicant submitted that, in the assessment of personal suitability, the Officer should have awarded two additional units to compensate the Applicant for the two units mentioned by Table 2 for work experience but not allowed under the Regulations. The issue therefore is whether the Officer erred in failing to improve the Applicant's personal suitability assessment by two units.
Issue One
There is no evidence before me that the Applicant relied on the Guide in the preparation of his application or that he advised the Officer that he expected to receive eight units for work experience for 15 units of SVP. As well, there is no evidence before me that the Guide that was presented to the Court was in force at the time the Applicant prepared his application for permanent residence.
In these circumstances, in order to consider the first issue, I must conclude that the Officer was required to assume that the Applicant had used the Guide and also that he had been misled by Table 2. I am not prepared to make these assumptions in the absence of any evidence on these matters. Issue One is entirely hypothetical on the facts of this case and, therefore, this argument cannot succeed.
Issue Two
Paragraph 3 in the letter from the Saudi Arabian Oil Company dated July 6, 1991, reads as follows:
| "Mr. Mansoor has been one of the most productive member (sic) of the 30 man unit that I, (sic) supervise. He has a respectful and professional attitude towards his co-workers and serniors (sic). I can safely say that he is a skillful and diligent technician. He is, (sic) also a fine Instructor/Trainer. |
In my view, the primary focus of this paragraph is the Applicant's positive motivation and attitude towards his employment. The Officer carefully considered the Applicant's work experience and gave him the maximum number of units available in that category. In these circumstances, I am not prepared to assume that the Officer overlooked the letter in his assessment of personal suitability simply because the letter is not specifically mentioned in his affidavit of August 23, 1996.
Issue Three
If the Officer had used his discretion in the assessment of the Applicant's personal suitability to add the two units the Applicant expected to receive for work experience by reason of the Guide, the Officer would have erred by considering matters irrelevant to the category of personal suitability as detailed in Factor 9 of Schedule I to the Regulations. Accordingly, the Applicant cannot succeed on this issue.
For all these reasons, the application will be dismissed.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: ABDUS SALAM MANSOOR
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-2092-96
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 16, 1997
REASONS FOR ORDER: SIMPSON, J.
DATED: March 3, 1997
Delivered from the Bench on: January 16, 1997
APPEARANCES:
Mr. Joseph S. Farkas for Applicant
Ms. Lori Hendriks for Respondent
SOLICITORS OF RECORD:
Joseph S. Farkas for Applicant
Barrister & Solicitor
North York, Ontario
George Thomson for Respondent
Deputy Attorney General
of Canada