Date: 19980608
Docket: IMM-2341-97
BETWEEN:
TARIQ MAHMOOD,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] After the hearing of this judicial review application in Court in Toronto, on April 28, 1998, this Court dismissed the application from the bench and promised to render reasons, when time would permit. These are those reasons.
[2] The applicant is dissatisfied with the failing assessment for permanent residence performed by a designated immigration officer, P.A. Fitzgerald, at the consulate general of Canada, in Buffalo, New York and dated May 2, 1997, file B0348 16003. The applicant received the immigration officer's letter of rejection on May 9, 1998.
[3] The applicant was born on April 8, 1961, and is married with minor children. He swears in paragraph 16 of his affidavit (applicant's record) A.R. p. 0010, that he was a pharmaceutical representative in Pakistan, from July, 1983 until December, 1994. He studied science in secondary school, he received his "certificate for Intermediate Examination" (pre-medical group) in the spring of 1979 and he swears, a "bachelor of science, from the University of Punjab", in 1982, (exhibit C3). The applicant retained the position of territory manager with Abbott Laboratories (Pakistan) Ltd. At the end of May, 1991 he was employed by Sandoz (Pakistan) Ltd. as a "medical detailing officer". In June, 1993, the applicant obtained the position of "medical representative" with Shazil International, and he held that position until December, 1994.
[4] According to his solicitors' letter dated August 12, 1996, A.R. p. 0012, the applicant applied for immigration under the "independent" category as a "pharmaceutical representative", 5133-114 C.C.D.O.
[5] The respondent's record (R.R.) as well as that (A.R.) of the applicant contains a copy of the impugned decision dated May 2, 1997, and coincidentally each is exhibit D to the respective deponent's affidavit - that is to say to the applicant's affidavit and to the immigration officer's affidavit. They are published respectively on p. 0079, A.R. and on p., 13, R.R., followed by the tally of units of assessment, p. 0080, and p. 14 respectively. The very version received by the applicant (A.R., p. 0080) runs as follows:
| UNITS OF ASSESSMENT |
| Pharmaceutical Representative CCDO 5133 114 |
| Age 10 |
| Occupational Factor 01 |
| Specific vocational preparation 15 |
| Experience 06 |
| Arranged employment or designated occupation 00 |
| Demographic Factor 08 |
| Education 13 |
| Knowledge of English language 08 |
| Knowledge of French language 00 |
| Bonus 00 |
| Personal suitability 05 |
| TOTAL (minimum required 70) 66 |
[6] Both in writing and orally the applicant, or his counsel expressed dissatisfaction with virtually every element of the assessment, including utterly unsubstantiated allegations of denying natural justice and procedural fairness, and of acting unfairly. The applicant further alleges that the immigration officer failed to consider "substantial and relevant evidence in making her decision" and therefore failed even to acknowledge it, "while not allowing [him] the opportunity to test his language skills". After all, argued the applicant's counsel in part, the applicant had attained a B.Sc. degree - a two-year program from the University of Pakistan. These arguments, and the others, all fail to move this Court to quash the impugned decision and here, basically, and as much as is minimally required, is why.
[7] The Immigration Act, itself, contradicts in large measure the thrust of the applicant's arguments. Subsection 8(1) provides:
| 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. |
[8] In these circumstances, where the applicant attacks the immigration officer's decision and fairness, it is reasonable to recite here a few pertinent allegations from her affidavit, which were emphasized by the respondent's counsel:
| 5. I interviewed the applicant on April 15, 1997. At the interview, I reviewed the applicant's educational background and determined that he had completed two years of post secondary education. I questioned the applicant about this and he informed me that, despite the fact that he had been awarded a diploma referred to as a degree, he did not have any further post secondary education beyond those two years. Accordingly, I awarded the applicant 13 units of assessment in the educational factor, as provided for by Item 1 of Schedule I of the Immigration Regulations, 1978. A copy of the applicant's diploma from the University of Punjab is attached hereto as Exhibit "C". |
| 6. I then interviewed the applicant's employment history with him and determined that he qualified for assessment under the occupation of Pharmaceutical Representative (CCDO 5133-114). This was the occupation under which he had requested to be assessed. Pursuant to the CCDO, this occupation required more than two years but not more than four years of training. I therefore awarded the applicant 15 units of assessment for specific vocational preparation. I also awarded the applicant 6 units of assessment for experience, the maximum he could obtained [sic] pursuant to Schedule I of the Immigration Regulations. |
| 7. According to the Detail General Occupations List the level demand for a Pharmaceutical Representative merited one unit of assessment. I therefore awarded the applicant one unit of assessment for occupational demand. |
| 8. In assessing the applicant's language ability, I found that given the applicant's educational background and working experience, it was credible that the applicant would be able to read and write English "fluently". I therefore assessed him as being able to read and write English fluently. I, however, found that the applicant spoke English very well but not at a level that I could describe as fluently. I found that I frequently had to rephrase and repeat questions so that he could understand. I noted as well that the applicant's spoken English frequently included inappropriate vocabulary and grammar. I, therefore, assessed the applicant as being able to speak English "well". The applicant did not claim to speak, read or write French, the other official language. I awarded him 8 points for overall language ability. |
| 9. There was nothing in the applicant's materials or stated by the applicant at the interview that indicated that he had arranged employment in Canada. I therefore, awarded him zero for arranged employment. |
| 10. In speaking to the applicant, I determined that his adaptability, motivation, initiative and resourcefulness and other similar personal qualities were average. I therefore awarded him 5 units of assessment for personal suitability. |
| 11. At the interview, I informed the applicant that he did not merit sufficient points to quality for an immigrant visa. I asked him if there was any other occupation for which he was qualified. I told him that unless he could provide information at the interview to cause me to change my mind, it was my conclusion that the number of units of assessment I had awarded him was an accurate reflection of his ability to establish himself in Canada and that therefore, I would have to refuse his application. The applicant responded by telling me that he had worked part-time as a sales clerk in a store selling computers, but that he had not listed this on his application as it was not his intention to work in this field in Canada. I, therefore, told him that my decision was to refuse his application. I confirmed my decision to refuse the application in a letter to the applicant dated May 2, 1997. That letter is attached hereto as Exhibit "D". |
| 12. I awarded the applicant of [sic] total of 66 units of assessment. A breakdown of the units of assessment awarded under each heading of the assessment is set out in Exhibit "D" of my affidavit. The computer printout of the applicant's assessment, including my case notes, is attached hereto as Exhibit "E". |
| (R.R., pp. 2 to 4) |
This affidavit was sworn on June 30, 1997. It appears that the applicant and/or his counsel declined to cross-examine the immigration officer in regard to her deposition.
[9] After careful and even anxious consideration, this Court has not been persuaded that the officer made any reversible error in formulating her decision in this matter. As the respondent's counsel asserted at the hearing: "The presumption is that the [immigration] officer looked at the whole of the matter before her, and nothing here says anything to contradict that." The file appears to confirm strongly counsel's assertions.
[10] For the above reasons, and those expressed orally at the hearing, the Court dismissed this application for judicial intervention.
Judge
Ottawa, Ontario
June 8, 1998