Date: 20021114
Docket: IMM-2204-01
Neutral citation: 2002 FCT 1184
Ottawa, Ontario, this 14th day of November, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
AMARVIR SINGH REKHI
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 a visa officer, (the "VO"), an agent of the Respondent. The VO issued a decision denying the applicant his application for permanent residence in Canada.
ISSUE
[2] Did the VO render unreasonable assessments, not justified by the evidence before him, with respect to any of the factors for which units of assessment are awarded?
[3] The answer is "yes" for the following reasons.
BACKGROUND
[4] The applicant is a citizen of India. He was interviewed at the Canadian High Commission in New Delhi by VO Jean Pacheco. At the interview, the work experience of the claimant as an Electronics Engineering Technician, was discussed, in order to evaluate it against the definition of this occupation in the National Occupancy Classifications (NOC). The applicant was, among other things, asked to describe a typical workday, and was asked basic questions in French. The applicant and the respondent disagree with respect to many of the incidents that transpired during the hearing. These will be discussed in the section below in the parties' submissions.
DECISION AT ISSUE
[5] The units of assessment assigned to each of the selection criteria set out in the Immigration Regulations, 1978 ("Regulations") were listed as follows:
Factor Units
Age (30) 10
Occupational Factor 00
ETF/S.V.P. (Sic) (Specific Vocational Training) 15
Experience 00
A.R.E. (sic) (Arranged Employment) 00
Demographic Factor 08
Education 13
English 09
French 00
Suitability 03
Total 58
[6] The letter noted that the minimum number of units required to qualify was 65, and that the applicant therefore failed to qualify. The VO stated in the letter that the applicant was unable to demonstrate that he had experience in his occupation, that he had arranged employment in Canada, or that he was prepared to work in a "designated occupation". These were the reasons for the assignment of zero units for the Occupational Factor.
RELEVANT STATUTORY PROVISIONS
[7] Sections 8(1) and 11(1) of the Regulations are pertinent. In the document titled "A Description of Relevant Passages", these sections of the Regulations, as well as 10(1)(b), are noted. Section 9(4) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") is also listed. It is also important to note sections 6(1) and 8(1); accordingly, these are also reproduced below.
Regulations
| 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
[...]
10. (1) Subject to subsections (1.1) and (1.2) and section 11, where an assisted relative makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the assisted relative and accompanying dependants of the assisted relative if [...]
(b) in the case of an assisted relative who intends to reside in a place other than the Province of Quebec, on the basis of an assessment made in accordance with section 8, the assisted relative is awarded at least 65 units of assessment [...].
11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant
(a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience; or
(b) is qualified for and is prepared to engage in employment in a designated occupation.
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8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint :
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
[...]
10. (1) Sous réserve des paragraphes (1.1) et (1.2) et de l'article 11, lorsqu'un parent aidé présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'aux personnes à sa charge qui l'accompagnent si les conditions suivantes sont réunies : [...]
(b) dans le cas du parent aidé qui entend résider au Canada ailleurs qu'au Québec, sur la base de l'appréciation visée à l'article 8, le parent aidé obtient au moins 65 points d'appréciation [...].
11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant :
a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou
b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire. |
Act
| 6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations.
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
9. (4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
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6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure.
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
9. (4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements. |
SUBMISSIONS
Applicant
[8] The applicant is claiming that the decision of the VO is unreasonable and failed to take relevant factors into account.
[9] The applicant claims that his work experience was ignored by the VO. He disputes the claim of the VO that the Program Assistant at the High Commission, Ms. Shalini Agrewal, could not reach anyone at the applicant's current employer who could speak about him. The applicant states that a manager at his place of work was contacted and issued a letter confirming that contact from the Canadian High Commission.
[10] The VO did not mention the bases on which he ignored the previous work experience of the applicant with companies for whom he worked prior to the employer which, at the time of the application, was his current employer.
[11] The applicant also takes issue with the claim made by the VO that the applicant simply recited the NOC description when asked to describe his job duties. The applicant insists that he prepared for the interview without counsel and was never coached as to how to answer questions at the interview.
[12] According to the applicant, he never told the VO that the presence of the applicant's brother in Canada was his primary motivation for coming to Canada.
[13] The applicant concludes by impugning the conclusions of the VO with respect to the ability of the applicant to speak and understand French. Among other things, he insists that the certificate that he received from the Alliance Française is authentic, not made up as the VO claimed it was.
Respondent
[14] The respondent relies in large part on the affidavit of the VO, which is based mainly on notes that he made on the Computer Aided Immigration Processing System (CAIPS). The VO asserts that the Applicant simply repeated the job description contained in the NOC when asked to describe his duties at the firms for which he worked. He provided the same description when asked to describe a typical workday at one of these companies.
[15] An assistant at the High Commission attempted to contact one of these companies on behalf of the VO but was unable to speak to anyone at that company with respect to the applicant. The VO also doubted the authenticity of letters provided by the applicant which purportedly came from his employers. These factors led to a conclusion that the applicant should be given zero units of assessment for work experience.
[16] The VO also noted that the applicant had problems with French, and awarded three units for personal suitability, owing to the lack of motivation and knowledge of Canada on the part of the applicant as perceived by the VO at the interview.
[17] The respondent submits that the assessment of zero units of work experience was not unreasonable. It was justified given the applicant's answers and his inability to provide evidence of his experience. It therefore automatically followed that zero units had to be awarded under the Occupational Factor category.
[18] The VO was not obligated to assess the applicant under any other occupation. The VO is not under a duty to search out other occupations for which the occupant may be qualified.
[19] Concerning their respective affidavits, the respondent submits that the affidavit of the VO should be given more weight, as it was prepared based on CAIPS notes taken during the interview. The respondent then addresses the personal suitability, noting that the applicant did not demonstrate the requisite qualities to be awarded any more than three units of assessment. It is further submitted that no error of law was made in this regard; it is a matter within the discretion of the VO, and the Court should not intervene unless the discretion was clearly exercised in error.
[20] The applicant must do more than establish the possibility that this Court may have reached a different conclusion from the of the VO; there must be an error of law apparent on the face of the record, or a breach of that duty of fairness which is appropriate to the assessment.
ANALYSIS
Standard of Review
[21] Generally, this Court will not interfere with the assessments of a VO with regard to a claimant seeking permanent residence in Canada. In Liu v. Canada (Minister of Citizenship and Immigration) (2001), 182 F.T.R. 251 (F.C.T.D.), this Court provided a summary of the standard of review that remains applicable to decisions of visa officers. The Federal Court of Appeal in To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (F.C.A) (QL), noted that the following was stated in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at pages 7 and 8:
[...] It is, as well, a clearly-established rule that the courts 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. [...]
[22] Reed J. expressed the view in Liu, supra, at paragraph 20, the decision of the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, which had been decided relatively recently when Liu was heard, did not change this rule:
I do not read the Baker decision as making a fundamental change in the applicable standard of review. The majority decision in that case stated that one applies a pragmatic and functional approach when deciding the standard of review to be used in any given case, an approach that had been articulated in several previous Supreme Court decisions. This approach leads to the weighing of a number of different factors. [...]
[23] In the case of the decision of a VO, the decisions are highly factual and almost entirely within the discretion of that officer. A scheme for the assignment of points is set out in Schedule I of the Regulations in order to provide for a measure of consistency among Canadian VOs worldwide. However, it is the VO alone who, for the most part, reviews the documentary evidence and who speaks with the claimant, thereby observing the communication skills and demeanour of the applicant. To the extent that the VO is exercising discretion within the wide range granted to VOs, the Court must abstain from quashing the decision unless the VO acted in bad faith or based the decision on irrelevant considerations.
[24] The factual considerations in the present case: at least some of the evaluations of the VO, vis-à-vis this applicant, were based on considerations that the VO was entitled to take into account. The applicant does not take issue with the units of assessment awarded for the factors of age, specific vocational training, demographic factor, age, education and English. No submissions were made calling these factors into question.
[25] With respect to the applicant's submissions regarding the points awarded for French, that assessment should not be disturbed. The VO indicates that the applicant could not answer such simple questions as "Comment allez-vous?", and had trouble reading French passages or describing his journey in that language. That assessment should therefore stand.
[26] The main areas of contention concern work experience, occupational factor and personal suitability. These factors are the subject of the following discussion. Prior to that examination, it should be noted that the parties differ on the weight that should be given to the respective affidavits. The respondent notes that Gibson J. of this Court stated in Sehgal v. Canada (Minister of Citizenship and Immigration), 2001 FCT 212, that the affidavit of the VO was preferred to that of the applicant because that of the VO was prepared with reference to CAIPS notes captured at the interview, whereas the applicant swore an affidavit months after the interview without any evidence that they were based on notes made the day of the interview.
[27] However, documents show that the VO erred in not giving due consideration to the evidence of the applicant with respect to work experience. In fact, the applicant gave details of his work experience with Telenet Services, Weigh Systems and Punwire. In the CAIPS notes, the VO mentions only Telenet Services.
[28] According to the VO, the applicant simply recited the criteria in the NOC description when asked to define his duties.
[29] In addition, the assertion on the part of the VO that the claimant had been coached has limited plausibility given the circumstances. In his Memorandum of Fact and Law, the applicant stated that he could not hire counsel or come to Canada in connection with his judicial review for lack of funds. Given these considerations, and given the lack of any claim that any of the applicant's answers with respect to other assessed factors were coached, it is not reasonable to discount his claims with respect to work experience on the basis that his answers were coached.
[30] Such presumptions on the part of the VO coloured the balance of his assessment of the work experience of the claimant. The reference letters offered by the claimant as proof of his work experience were rejected as not being authentic. The VO did not mention in his letter of refusal to the applicant, or in his affidavit, why he did not find the letters of reference credible.
[31] With respect to the attempts to telephone the employer of the applicant, insufficient evidence exists as to the numbers that were called and the number of times that contacts were attempted. In addition, the applicant stated in his affidavit that the manager of his place of work confirmed by letter filed in the record, that only one call was made to him. This Court is not about to require that hard copies be kept of all telephone records in order to prove that calls took place, but given the claims of the applicant, the respondent would be expected to provide evidence to counter those claims if the respondent wished to do so. This would have been advisable notwithstanding that the claim of the applicant in this regard is effectively based on hearsay.
[32] Overall, to the extent that the VO improperly discounted evidence before him that should have been taken into consideration, he exercised his discretion in a manner which not only was not justifiable, but which caused prejudice to the applicant. The assignment of units to these factors - or the decision to assign no units - was therefore in error.
[33] The VO made reference in his refusal letter to section 10.1. This section was not relevant to the application of this applicant; although he may have made reference to the fact that his brother lives in Canada, the evidence does not suggest that he was seeking to enter Canada and live with the assistance of his brother. He applied as an independent applicant. The statement by the VO that the applicant said he was just going to Canada to be with his brother is a statement that the applicant vehemently denies. To the extent that the VO gave undue consideration to the influence that the presence of the applicant's brother in Canada had on the applicant, the VO came to an erroneous conclusion.
[34] Given the above considerations, the conclusions at which the VO arrived and the means by which he arrived at those conclusions are unreasonable and justifies that this decision be quashed and referred for reconsideration by a different VO.
[35] The application for judicial review is allowed. The matter is remitted for reconsideration by another VO.
[36] The parties did not raise a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, no serious question of general importance will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed.
2. The matter is remitted for reconsideration by another Visa Officer.
3. No serious question of general importance will be certified.
__________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2204-01
STYLE OF CAUSE: AMARVIR SINGH REKHI and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 3, 2002
REASONS FOR ORDER:THE HONOURABLE JUSTICE BEAUDRY
DATED: November 14, 2002
APPEARANCES:
Jaswant Singh Mangat FOR THE APPLICANT
Michael Butterfield
Department of Justice FOR THE RESPONDENT
SOLICITORS OF RECORD
Jaswant Singh Mangat FOR THE APPLICANT Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada
Toronto, Ontario