Date: 20020625
Docket: IMM-5567-01
Neutral citation: 2002 FCT 712
BETWEEN:
MARGARITA BASTIDA MANABAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
GIBSON J.
Introduction
[1] These reasons arise out of an application for judicial review of a decision of the First Secretary, Immigration, at the Canadian Embassy in the Philippines (the "visa officer") in which the visa officer rejected the applicant's application for permanent residence in Canada as an independent applicant. The decision under review is dated the 5th of November, 2001.
Background
[2] The applicant is a young woman who is a citizen of the Philippines. She attests that she reads and writes English fluently. In the spring of 1994, she obtained a bachelor's degree in secondary education majoring in school guidance and character education. She pursued studies towards a master of arts degree in higher religious studies but did not complete the degree requirements. In recent years, she has completed a number of short courses in the areas of business, management, and informatics.
[3] Since April of 1994, she has been employed by C.A.C. Commercial Forwarders Inc., first as an operations staff person and, from January of 1995, as Operations Head.
[4] In her application for permanent residence in Canada, the applicant requested that she be assessed in the categories of "personnel & recruitment officer" (NOC 1223.0) and "purchasing agent and officer" (NOC Code 1225.0). She also requested that, in the event that she were to be unsuccessful in obtaining the required number of units of assessment for landing in Canada, the exercise of positive discretion in her favour be considered under subsection 11(3) of the Immigration Regulations, 1978[1]. That subsection reads as follows:
11(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
[emphasis added]
11(3) L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
[je sousligne]
The Decision under Review
[5] In his decision letter, the visa officer first noted that the applicant was assessed in her intended occupation "personnel officer". He noted that that assessment resulted in the award to the applicant of 57 units of assessment, 13 units short of the 70 units normally required to qualify for immigration to Canada. The decision letter reflected the units of assessment awarded in each of the relevant categories in relation to the intended occupation "personnel officer". The applicant was awarded 0 units of assessment for the Occupational Factor and the Experience Factor.
[6] The visa officer continued in the decision letter in the following terms:
You were not convoked to an interview because, in accordance with section 11.1 of the Immigration Regulations, interviews need not be conducted unless, based on a review of the application and supporting documents submitted, at least 60 units of assessment are awarded, including at least one unit of assessment under both the Occupational and Experience factors.
Sections 11(1) and 11(2) of the Immigration Regulations do not permit the issuance of a visa to applicants who have not been awarded at least one unit of assessment under the Occupational and Experience factors. You were not awarded any units under the Occupational factor because I am not satisfied that you meet the employment requirements for Canada as set out in the national Occupational Classification nor am I satisfied that you have performed a substantial number of the main duties as set out in the National Occupational Classification. Accordingly, you were not awarded any units under the Experience factor because you failed to demonstrate that you possess the required minimum of one year of experience in that occupation as it is defined in the NOC.
Sections 9(1)(b)(ii) and 10(1)(b) of the Immigration Regulations do not permit the issuance of an immigrant visa to applicants who are awarded less than 70 units of assessment....
You were also assessed in the following occupations:
Purchasing Officer, NOC 1225.0 Your application could not be approved on this basis because I am not satisfied that you meet the employment requirements for Canada, or have performed a substantial number of the main duties, as set out in the National Occupational Classification.
Freight-forwarding Manager, NOC 0713.2; General Office Clerk, NOC 1411.0; Purchasing and Inventory Clerk, NOC 1474. Your application could not be approved on any of these bases as the Occupational factor for these occupations, both now and at the time of submission of your application, were zero.
As requested, your case was further reviewed to determine if the use of positive discretion may be warranted. Unfortunately, however, I believe that the units of assessment above accurately reflect your ability to establish in Canada.
. . . [emphasis in original]
It is to be noted that units of assessment were reflected in the decision letter only in relation to the occupation, "personnel officer", not in relation to the occupation "purchasing officer" in which the applicant requested that she be assessed, and not in relation to any other of the occupations against which the visa officer considered the applicant's application.
The Issues
[7] In the memorandum of fact and law filed on behalf of the applicant, the points in issue are identified as the following:
1. Does the way in which this application was dealt with create a reasonable apprehension of bias?
2. Has the visa officer erred in law by failing to formally assess the applicant as a "purchasing officer" (NOC 1225) or a "freight forwarding manager" (NOC 0713.2)?
3. Has the visa officer erred in law by importing additional requirements into the definition of "personnel officer" (NOC 1223), thereby fettering his discretion?
4. Has the visa officer erred in law by failing to properly assess the applicant pursuant to Regulation 11(3) of the Immigration Regulations?
Analysis
1) Reasonable Apprehension of Bias
[8] It is well settled, and certainly it was not in dispute before me, that the test for reasonable apprehension of bias is expressed in the dissenting reasons of Mr. Justice de Grandpré in Committee for Justice v. The National Energy Board[2] where he wrote at page 394:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[9] The CAIPS notes that form part of the tribunal record before the Court disclose that the applicant's application was first considered by a program assistant at the Canadian embassy in Manila, not a person authorized to arrive at a decision in respect of the applicant's application. The Program Assistant noted the intended occupations identified by the applicant. She or he then entered:
PI [Person Interested, the applicant,] does not have experience nor meet NOC requirements for any of the two.
That entry is dated the 22nd of March, 2001.
[10] The next entry, dated precisely two months later and apparently entered by another program assistant, is to the following effect: "draft refusal prepared.". That entry is followed by another entry of the same date, apparently prepared by the same program assistant, which reads as follows: "- note that subj's qualifications fall under Freight-forwarding Manager, 0713.2 --- zero- demand."
[11] The first entry in the CAIPS notes by the visa officer whose decision is here under review then follows and is dated the 15th of August, 2001. It comments briefly on the applicant's qualifications in the two occupational classifications in which the applicant sought consideration. It then continues:
Mr. Chapman [the applicant's counsel before me] requests the use of positive discretion in his letter of introduction (R11)(3) however in this case it is not warranted.... PA does not have relatives in Canada. Has modest cash funds available does not have any skills in demand nor any informal job offer. I am satisfied that this is an average case and the points allocated 57 pts accurately reflect her chances of establishment.
[12] The balance of the CAIPS notes, substantively, then consist merely of the substance of the refusal letter that is here under review.
[13] Counsel for the applicant urged that a review of the CAIPS notes would lead an informed person, viewing the matter realistically and practically, and having thought the matter through, to conclude that the decision under review was essentially made by program assistants, who had no authority to make the decision, and not by the visa officer who had the program officers' notes before him when he first considered the file, along with a draft refusal letter. In the result, it was urged, the visa officer could reasonably be presumed to have a reasonable apprehension of bias based on the advice coming forward to him.
[14] In contrast, counsel for the respondent referred to the visa officer's affidavit filed on this matter and to the transcript of his cross-examination on that affidavit, and urged that I should accept the visa officer's sworn assurances that he in fact independently assessed the applicant's application and reached his own decision which, by chance, simply corresponded quite directly to the positions adopted by the program assistants. Counsel urged that, given the pressures on the visa officers at the Canadian embassy in Manila, the use of program assistants to assist in the management of a very heavy workload was only reasonable and that, therefore, an informed person, viewing the matter realistically and practically, and having thought the matter through, would not perceive that the visa officer, whether consciously or unconsciously, would not decide fairly.
[15] I prefer the position advocated on behalf of the respondent. The strategies adopted by the Canadian Embassy in Manila to manage the immigration workload were, I am satisfied, entirely reasonable. I find no basis whatsoever on which to doubt the visa officer's assurances that he, and he alone, made the decision that is here under review. Further, I find that he could not reasonably be perceived to have been biased in so doing.
2) Failure to Formally Assess the Applicant as a Purchasing Officer
[16] None of the decision letter under review, the CAIPS notes and, indeed, the tribunal record as a whole, and the affidavit of the visa officer provide evidence that the visa officer formally assessed the applicant against the occupation "purchasing officer", notwithstanding the applicant's request to be assessed against that occupation. The transcript of the cross-examination of the visa officer on his affidavit provides assurances that he did "formally" assess the applicant against that occupation[3]. But those assurances are rather qualified. I conclude that the evidence before the Court simply does not demonstrate that the visa officer conducted a "point-count" assessment of the applicant against the occupation "purchasing officer", and thus did not "formally" assess the applicant in that occupation.
[17] In Uy v. Canada (Minister of Employment & Immigration)[4], Mr. Justice Mahoney, for the Court, wrote at paragraph 6:
In my opinion, s. 6 of the Act requires a visa officer to assess any immigrant who applies for landing in the manner prescribed by the Act and Regulations. Section 8(1) of the Regulations imposes, in mandatory terms, a duty to assess, and I find nothing in either the Act or Regulations which would permit a visa officer to refuse to assess in respect of the occupation or alternative occupations which the immigrant...states it is intended be pursued in Canada. The visa officer erred in law and exceeded his jurisdiction by refusing to assess the appellant for admission to Canada as a Medical Technologist.
[18] In Issaeva v. Canada (Minister of Citizenship & Immigration)[5], Mr. Justice Rothstein, then of the Trial Division of this Court, by reference to the foregoing cited passage from Uy, wrote at paragraphs 8 to 10:
I think this passage [the above-cited passage from Uy] makes it clear that a prospective immigrant is entitled to be assessed in the prospective immigrant's claimed occupation.
In the case at bar, the applicant was not assessed in accordance with the Immigration Act and Regulations. Subsections 8(1) and (2) of the Regulations provide in relevant part:
8.(1) Subject to section 11.1, for the purpose of determining whether an immigrant ... will be able to become successfully established in Canada, a visa officer shall assess 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;
. . .
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in column III thereof opposite that factor.
An assessment is not an informal or preliminary determination by a visa officer. The terms "assess" or "assessment" mean the process of applying to the prospective immigrant the factors listed in column I of Schedule I of the Regulations. That this was not done with respect to the applicant's stated occupation of "general economist" is confirmed by the decision of the visa officer which states that the applicant was assessed only with respect to the occupations of "manager administration" and "financial manager".
Because the applicant was entitled to be assessed in the occupation she stated in her application, that of "general economist", and no such assessment was done in accordance with the Immigration Act and Regulations, the visa officer erred in law and exceeded his jurisdiction.
Some decisions of the Trial Division were cited which suggest that if the visa officer makes a preliminary determination that a prospective immigrant is not qualified in his or her claimed occupation, there is no need to conduct an assessment with respect to that occupation or that such determination constitutes an assessment....Of course, each case must be decided on its own facts. However, as I have said, as assessment is not an informal determination. I am bound by Uy..., which requires that an assessment in accordance with the Immigration Act and Regulations be made with respect to a proposed immigrant's claimed occupation.
The Court could envisage cases in which a proposed immigrant could state a particular occupation for which he or she was clearly not qualified. In such cases, an assessment in that occupation would seem to be unnecessary. However, the scheme of the Act and Regulations is clear. An assessment must first be made.
[citations omitted]
[19] Other decisions to the same effect in the Trial Division are Olajuwon v. Canada (Minister of Citizenship & Immigration)[6] and Khalaque v. Canada (Minister of Citizenship & Immigration)[7]. By contrast, Madam Justice Reed in Goussev v. Canada (Minister of Citizenship & Immigration)[8] wrote at paragraph 14:
Counsel for the respondent referred me to the jurisprudence that has stated that an informal or preliminary assessment by a visa officer does not constitute an assessment of the applicant and that a visa officer has a duty to carry out an assessment of an applicant in the person's intended occupation; ... I do not understand this jurisprudence to require a visa officer to continue an assessment in a given occupational category after it has become clear that the applicant cannot obtain the required number of points to be granted landing. For example, if there is a requirement that at least one point be awarded under a given factor, and the visa officer determines that the particular individual will be awarded zero under that factor, the visa officer is not required to continue a pointless exercise of evaluating the other factors. An assessment has been done.
[citations omitted]
[20] Madam Justice Reed would appear to have qualified her foregoing statement in Jain v. Canada (Minister of Citizenship & Immigration)[9]. At paragraph 5, Madam Justice Reed wrote:
Counsel for the applicant cites Uy v. Canada (Minister of Employment and Immigration)... as authority for the proposition that even if a re-assessment cannot lead to an award of 70 points, there are circumstances in which the application, should be returned for reassessment, because the visa officers can exercise discretion pursuant to Immigration Regulation 11(3), and grant visas where points awarded are below 70. I accept that reasoning.
[citation omitted]
[21] I am satisfied that this is an application in which the circumstances require that this matter should be returned for re-assessment because the visa officer could have exercised discretion pursuant to subsection 11(3) of the Regulations and, indeed, was specifically requested to do so in the letter covering the applicant's application. The evidence before me simply does not establish that a "formal" assessment, and I use that term to mean an assessment that includes a point-count assessment in accordance with subsections 8(1) and 8(2) of the Regulations, of the applicant in respect of the occupation "purchasing officer" was carried out. The material before the Court demonstrates that the applicant had significant educational qualifications and significant business experience. In the absence of a "formal" assessment in respect of each of the occupations in which the applicant sought assessment, and perhaps other occupations identified by the visa officer in which the applicant might be qualified, I am not satisfied that the visa officer was in a position to carry out an assessment of "positive discretion" in a fair and meaningful way. More will be said about the visa officer's "positive discretion" determination later in these reasons.
3) Importing of Additional Requirements into the Definition of Personnel Officer
[22] Counsel for the applicant urged that the visa officer disclosed in his cross-examination on his affidavit that he imported into the duties of "personnel officer" a requirement that simply is not reflected in the NOC description of the duties of that occupation[10]. Not much was made of this issue in argument before me, and I am satisfied that it simply is not a determinative issue. With great respect, on this issue, I am satisfied that counsel for the applicant was dissecting the visa officer's testimony on cross-examination in an unwarranted manner.
4) Failure to Properly Exercise Positive Discretion under subsection 11(3) of the Immigration Regulations
[23] In Kwong v. Canada (Minister of Citizenship and Immigration)[11], Mr. Justice Cullen wrote at paragraph 14:
Economic reasons are the driving force behind the exercise of discretion under subsection 11(3). The economic reasons relate to the applicant's ability to make a living and establish himself or herself in Canada, which is a forward looking exercise:
[citation omitted]
[24] In Crisologo v. Canada (Minister of Citizenship and Immigration)[12], Madam Justice Heneghan wrote at paragraph 35, albeit in obiter as counsel for the applicant here emphasized:
In my opinion, the Visa Officer properly exercised his discretion here since the factors to be taken into consideration relate generally to a prospective immigrant, and not to a specific occupation.
[25] Earlier in these reasons, I have indicated that I am satisfied that the visa officer erred in a reviewable manner in failing to fully assess the applicant in an occupation in which she requested assessment and may have fettered his discretion in failing to fully assess the applicant in other occupations identified by him as occupations in which the applicant might be qualified or indeed was qualified. The fettering of discretion, if it indeed occurred, and I am satisfied that I need not decide that issue given my earlier conclusions, would arise out of the limitation of the visa officer's capacity to fully and effectively evaluate the applicant's ability, in future, to make a living and establish herself in Canada, against economic criteria that transcend her qualifications and experience in any specific occupation. If I were required to do so, I would find that, on the facts of this matter, the visa officer had so fettered his discretion.
Conclusion
[26] On the basis of the foregoing analysis, I conclude that this application for judicial review should be allowed, that the decision under review should be set aside, and that the applicant's application for permanent residence in Canada should be referred back to the respondent for re-determination by a different officer.
Certification of A Question
[27] At the close of the hearing of this application for judicial review, I advised that I would reserve my decision. Counsel requested an opportunity to consider their positions on certification of a serious question of general importance. These reasons will be issued and circulated. Counsel will have fourteen (14) days from the date that these reasons are issued and circulated to counsel to exchange and file submissions on certification of a question. Counsel should ensure that any such submissions are exchanged in a timely manner to allow for responsive submissions, if considered appropriate, within the time here provided.
(Sgd.) "Frederick E. Gibson"
JUDGE
Vancouver, B.C.
June 25, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5567-01
STYLE OF CAUSE: MARGARITA BASTIDA MANABAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: June 12, 2002
REASONS FOR ORDER: GIBSON J.
DATED: June 25, 2002
APPEARANCES:
Mr. Peter A. Chapman FOR APPLICANT
Ms. Pauline Anthoine FOR RESPONDENT
SOLICITORS OF RECORD:
Chapman & Company Law Corporation
Vancouver, B.C. FOR APPLICANT
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
[1] SOR/78-172, as amended.
[2] [1978] 1 S.C.R. 369.
[3] Applicant's Record, page 74, lines 12-13; page 75, lines 10-25; and page 76, lines 3-11.
[4] (1991), 12 Imm. L.R. (2d) 172 (F.C.A.).
[5] (1996), 37 Imm. L.R. (2d) 91 (F.C.T.D.).
[6] (1998), 47 Imm. L.R. (2d) 249.
[7] (2000), 9 Imm. L.R. (3d) 53 (F.C.T.D.)
[8] (1999), 174 F.T.R. 140.
[9] [2000] F.C.J. No. 977 (F.C.T.D.).
[10] See the Applicant's Record, page 92, line 13 to page 93, line 14.
[11] [1999] F.C.J. No. 1357 (Q.L.), (F.C.T.D.).
[12] [2002] F.C.J. No. 484 (Q.L.), (F.C.T.D.).