Date: 20020322
Neutral citation: 2002 FCT 308
BETWEEN:
AMMAR AHMAD AL-KHIARA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of a visa officer of the Canadian High Commission in London, England, dated February 1, 2000, dismissing the applicant's application for permanent residence in Canada under the independent category as a Personnel Officer.
Background
[2] The applicant is a citizen of Syria. He and his wife were interviewed by a visa officer, touring the region, in Riyadh, Saudi Arabia, on February 17, 1999. During the interview, the applicant claimed to have received a bachelor of law degree from Damascus University in 1985, and a diploma in international law from the same university in 1987, although he was unable to produce documentation to prove this, because, he stated, he did not complete his military service in Syria. The applicant did provide the visa officer with a letter from a Syrian law office, stating that he had worked as an apprentice lawyer for two years, then as an attorney at law specializing in labour cases from 1990-92.
[3] The applicant stated that he had then moved to Saudi Arabia to work for Binex Building Material Company ("Binex"), in the personnel department as a trainee personnel and labour officer. He listed his responsibilities, including: dealing with contracts, checking Arabic forms, checking company policy, arranging employment contracts, salaries and benefits, and release clauses, and accepting resignations. The applicant provided the visa officer with a letter dated May 29, 1997, signed by Steve Parslow, as General Manager of Binex, describing the applicant in the following terms:
As a Personnel Officer, he is responsible for all aspects of personnel management and labour laws of the Kingdom of Saudi Arabia. We have found him a capable and reliable member of our staff.
[4] The applicant further stated that he left Binex in July 1997 to work for Sigma Paints Saudi Arabia Ltd. in Dubai, United Arab Emirates, as personnel and office supervisor. He listed his duties there as including advertising positions, interviewing, following up, making job offers, writing contracts, overseeing accounts, and collecting sales receipts. The firm had 195 employees.
[5] The visa officer informed the applicant at the interview that her main concerns were that he did not appear to have any training as a personnel officer, and it was doubtful his experience and qualifications would match those of a personnel officer. She requested that the applicant provide copies of his employment contracts with Binex and Sigma Paints, including documentation of his salary. She also requested him to provide personal financial statements. In March 1999, the applicant sent certain documents to the High Commission. Ultimately, documents were received in July 1999 and were reviewed by the visa officer late in 1999, prior to making her decision.
[6] The visa officer awarded the applicant 63 units of assessment. That is fewer than the 70 units required for a successful application. She did not award any units of assessment for experience, and she awarded him 3 units, of a possible 10, for personal suitability. The reasonableness of those determinations, and concern about an alleged breach of procedural fairness, are issues raised by the applicant in this application.
Standard of review
[7] The applicant submits that, in accord with Baker v. Minister of Citizenship and Immigration (1999), 174 D.L.R. (4th) 193 (S.C.C.), the standard of reasonableness simpliciter should be applied when reviewing the visa officer's exercise of discretion.
[8] The respondent submits that the decision in the case at bar should be afforded more deference than was accorded in Baker since, unlike the applicant in Baker, the applicant in this case has not yet entered Canada. In the respondent's submission, the standard of review set out in Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, should be applied. The respondent relies on Chalaby v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 66, where Mr. Justice Pinard commented, at para. 4:
The Supreme Court of Canada's judgment in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, did not change the applicable standard of review with respect to decisions regarding immigrant visas. As has been clearly established by the Federal Court of Appeal in Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the appropriate standard of review for discretionary decisions of visa officers with respect to immigration applications is the same as that enunciated by the Supreme Court of Canada in Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2....
[9] I agree with the standard of review as determined by Pinard J. This Court should only intervene if the visa officer exercised her discretion in bad faith, or if the visa officer breached the principles of natural justice, or if she reached her decision by relying upon irrelevant considerations or without taking into account significant evidence.
The visa officer's decision
[10] In her letter of refusal to the applicant, the visa officer expressed her conclusion that the applicant lacked the experience necessary for his intended occupation in Canada, that of Personnel Officer. That letter provides, in part, as follows:
Section 11(1) of the Regulations does not permit the issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of "experience in an occupation for which they are prepared to follow in Canada" (sic), unless the visa officer is satisfied that the person can perform the work required without experience. At the interview I expressed my concerns that you had never undertaken any formal training as a Personnel Officer and therefore did not satisfy me that you could work in this profession in Canada. You stated that you had two degrees in the Law but were unable to produce proof of these studies as you had not completed your military service.
Furthermore, because you wished to be assessed as a Personnel Officer, I asked you to give evidence of your work experience in this occupation and suggested you provide copies of your contracts and list of duties on company letterhead. I requested copies of your pay slips, as your stated salary seemed high for someone who was not trained as a Personnel Officer. The only training certificate which you submitted was for an accounting and book keeping course in Damascus from September through November 1993, at which time you stated on your application that you were working in Riyadh for Binex.
Did the visa officer err in her assessment of experience?
[11] The applicant submits that the visa officer erred by misinterpreting the employment requirements for the occupation of Personnel Officer. In her affidavit, the visa officer stated:
I informed the Applicant at the interview that my main concerns were that he did not appear to have any training as a personnel officer, and that it was doubtful that his experience and qualifications would match those of a personnel officer.
[12] The applicant submits that the visa officer's concern that the applicant had no training for the role of a personnel officer was an irrelevant consideration, since training as a personnel officer is not listed as one of the requirements for employment in that occupation, which are set out in classification 1223 of the National Occupational Classification ("NOC"), as follows:
A university degree or college diploma in a field related to personnel management such as business administration, industrial relations, commerce or psychology
or
Completion of a professional development program in personnel administration is usually required
Some experience in a clerical or administrative position related to personnel administration may be required.
[13] The visa officer did not have any documentary evidence that the applicant had obtained the university degrees which he claimed. The training requirements set out in NOC classification 1223, for the position of Personnel Officer, quoted above, state that if a person has neither a "university degree" nor a "college diploma in a field related to personnel management", then completion of a professional development program in personnel administration is "usually required". In this case the only evidence supporting the applicant's claimed educational background was a diploma for completion of an accounting and bookkeeping course, in Damascus, from September to November 1993, a period when the application indicated that he had been working for Binex in Saudi Arabia.
[14] The applicant submits that the visa officer erred in her interpretation of the phrase "usually required". In Shezad v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 157, Madam Justice Tremblay-Lamer quoted with approval, at para. 8, the following passage from Hara v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 308, at para. 6:
...it may be an error to state that "is usually required" means that the educational requirement must be met, except where there are significant and substantial factors that persuade the visa officer that the occupational requirements can be overcome. That may be too rigid an interpretation. Nevertheless, 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.
The applicant submits that, despite the visa officer's conclusion that he lacked the usual educational qualifications, there were persuasive reasons for thinking that he would be able to acquire and hold employment as a personnel officer. The officer was not so persuaded.
[15] The applicant provided the visa officer with some documentation concerning his claimed experience as a personnel officer, but the visa officer found that these documents were not acceptable proof of the applicant's work experience. In her refusal letter to the applicant, the visa officer wrote:
You have submitted copies of documents which contain several discrepancies of grammar, punctuation and format. I am therefore not convinced that the contract submitted from ABT Binex is a genuine copy of your contract. The letter which was signed by Steve Parslow, General Manager of Binex, also contains grammatical errors which could not be committed by someone writing English as a mother tongue. Because of these obvious discrepancies I am not able to consider them as acceptable proof of work experience.
[16] The applicant submits that the visa officer erred by concluding that some of the documentation submitted by him, namely the letter signed by Mr. Parslow, General Manager of Binex, and the contract with Binex, were false or fraudulent. He states that he provided the visa officer with both English versions and Arabic versions of his Binex documentation, and he submits that the documents were most likely originally written in Arabic, and any errors of grammar, punctuation and format noticed by the visa officer were the result of translation, and were not errors made by someone writing English as a mother tongue. There is no supporting evidence that this explanation was available to the visa officer.
[17] By her affidavit, the Visa Officer states that she did not make any allegations of deceit or fraud against him. Rather she stated that the documents did not prove to her satisfaction that he had the requisite training or experience to follow the occupation of personnel officer in Canada.
[18] It is true that the officer did not specifically address the acceptability of documents relating to his employment for three years by Sigma Paints. I note upon examination that those documents, like the copy of the contract with Binex and the Manager's letter, do not describe the responsibilities of the applicant, though in both cases the position description includes the term "personnel officer" or "personnel supervisor". In my view it was not unreasonable for the officer to conclude, as she did, that the correspondence and contracts relating to his previous employment did not provide acceptable proof of his actual experience in that employment.
Did the visa officer err by granting the applicant 15 units of assessment for his occupational factor, but no units of assessment for his experience?
[19] The applicant submits and the respondent concedes, that the visa officer erred by granting him 15 units of assessment for his specific vocational preparation/education and training ("occupational") factor, but no units of assessment for his experience. The applicant relies on Dauz v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 288, where, in quashing the decision of a visa officer, Madam Justice Sharlow commented, at para. 7:
The visa officer awarded the maximum 10 units under the occupational factor. From that I must infer that she concluded that the applicant meets the NOC qualifications for employment as a computer system analyst including the educational requirements. I must also infer that she concluded that the applicant had performed a substantial number of the main duties of a computer system analyst as set out in NOC 2162, including the essential ones. How then could the visa officer have given the applicant no units for experience?
[20] The applicant submits that the visa officer, having assigned 15 points for the occupational factor, implicitly accepted that the applicant met all requirements for the position of Personnel Officer. She cannot then assign him zero points for experience because she considered he did not have the educational requirements for the position. The remedy suggested by the applicant is that he be given 6 units of assessment under the experience factor, i.e. 2 units for each of 3 years of experience in accord with Schedule I to the Immigration Regulations when the units assessed for the occupational factor is 15. The visa officer acknowledged by her affidavit that at the time she followed normal practice and assessed the two factors independently, having assigned zero points for experience, she did not then go back and revise the points awarded for the occupational factor to zero as she would do if the assessment were to be interdependent between the two factors.
[21] Yet the error alleged by the applicant, even if corrected as he proposes, would not alter the final assessment underlying the visa officer's decision, i.e. the total points assigned for all factors, which would still be less than 70. Thus there is no basis upon which this Court should intervene even if the assessment of experience were adjusted to reflect the assessment for the occupational factor. As Mr. Justice O'Keefe commented, in Bhogal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1581, at para. 22:
The decisions of this Court have established that when a visa officer has erred, the Court will not intervene if the error is not material in that it would not have changed the outcome of the application (see Barva v. MCI (1998) 157 F.T.R. 65 (F.C.T.D.) and Yang v. Canada (Minister of Citizenship and Immigration) (1998) 44 IMM.L.R. (2nd) 176 (F.C.T.D.)) ...
Did the visa offer err by failing to properly assess the applicant's personal suitability?
[22] The applicant submits that the visa officer erred in awarding him only 3 units of assessment for his personal suitability, in particular that she failed to consider the resourcefulness he demonstrated by working in several countries outside his home country of Syria, and the initiative he demonstrated by obtaining a university degree. In her CAIPS notes, the visa officer stated that the applicant had "Excellent English", but she made no other reference to positive factors.
[23] The applicant relies on Chauhan v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1105 (T.D.), to urge that the visa officer erred by failing to assess his personal suitability in principled and reasonable way. There, in quashing the decision of a visa officer, Mr. Justice Dubé held, at para. 8:
Admittedly, a visa officer has considerable discretion in assessing an applicant's personal suitability to settle in Canada. Nevertheless, that discretion must be exercised in a principled and reasonable way, based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities. The essential test is whether or not that person has the suitability required to support himself economically in Canada.
[24] The respondent relies on Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1080 (T.D.), where Mr. Justice Dubé held, at para. 6:
The assessment of personal suitability is entirely within a visa officer's scope of expertise and should not be interfered with unless the finding is perverse or capricious, or unless the visa officer committed an error of law.
The respondent further submits that the applicant cannot seek "double-counting" of factors such as language ability or education, which are separately assessed.
[25] In my view, considerable deference should be accorded to the visa officer's assessment of personal suitability. I am not persuaded that the visa officer's assessment of the applicant's personal suitability was unprincipled or unreasonable merely because, as was here suggested by the applicant, the units of assessment assigned were less than an average assessment, or because, in light of his general background and his record of employment outside his own country, and his claimed education, he ought to have been assigned more units of assessment for personal suitability. In her CAIPS notes about qualities taken into account in assessing personal suitability, the only positive reference is to the applicant's demonstrated language ability, "Excellent English,..." Nevertheless, I am not persuaded that this court should intervene to set aside the Visa Officer's assessment of personal suitability. This factor concerns characteristics of adaptability, motivation, initiative and resourcefulness. It is directed to assessing the applicant's likely ability to support him or herself, and their family if any, economically in Canada. In my view, the Court should intervene only where a visa officer's decision is found clearly to be unreasonable on the evidence. That is not the case here.
Did the visa officer commit a breach of procedural fairness?
[26] The applicant submits that the visa officer committed a breach of procedural fairness by failing to inform him of, and provide him with an opportunity to respond to, her concerns about the authenticity of his reference letter from Mr. Parslow, and of his contracts with Binex and Sigma Paints.
[27] The respondent submits that the visa officer was not required to provide the applicant with a running account of her concerns, relying on Bara v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 992 (T.D.), where Associate Chief Justice Richard, as he then was, held, at para. 15:
The officer is not required to put before the applicant any tentative conclusions he may be drawing from the material before him, not even as to apparent contradictions that concern him.
[28] The respondent further submits that the visa officer provided the applicant with ample opportunity to establish his case. From her CAIPS notes, made during the interview, the visa officer had doubts about various aspects of the application. She recorded her expressed doubts, on the evidence then before her, that it was doubtful that the applicant's experience and qualifications would match the requirements for a personnel officer in Canada. Further, in the letter refusing the application the visa officer noted, that she had asked, inter alia, for evidence of the applicant's work experience as a Personnel Officer, and for copies of his employment contracts and a "list of duties on company letterhead". Only copies of his employment contracts were forwarded to the visa officer and these contained no reference to his responsibilities or experience.
[29] In the circumstances, I am not persuaded that the visa officer breached any duty of fairness owed to the applicant by failing to inform him of, or provide him with an opportunity to respond to, her concerns about the documents provided concerning his previous employment. She had done that once, at the interview, and thereafter she considered the documents the applicant had forwarded in response to her concerns.
Conclusion
[30] For the reasons set out above, the application for judicial review is dismissed. An order goes so providing.
ORDER
IT IS ORDERED that the Application is dismissed.
W. Andrew MacKay
_____________________________
JUDGE
OTTAWA, Ontario
March 22, 2002.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2967-00
STYLE OF CAUSE: Ammar Ahmad Al-Khiara and the Minister of Citizenship and Immigration
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: July 17, 2001
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE MACKAY
DATED: March 22, 2002
APPEARANCES:
Mr. Roderick H. Rogers FOR APPLICANT
Ms. Lori Rasmussen FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada
Mr. Roderick H. Rogers FOR APPLICANT Stewart McKelvey Stirling Scales