Date: 19980511
Docket: IMM-2175-97
BETWEEN:
NASIR AMIN KHAN
Applicant
AND:
MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
NADON J.:
[1] By his judicial review application, the applicant seeks to obtain an order setting aside the decision of Visa Officer Michael Boekhoven dated April 20, 1997, pursuant to which the Visa Officer refused the applicant"s application for permanent residence in Canada.
[2] The applicant is a citizen of Pakistan. His application for permanent residence was filed with the Canadian High Commission in London. The applicant applied to be assessed as a "Sales-Promotion Administrator" under the Canadian Classification and Dictionary of Occupations ("CCDO"). The CCDO describes the applicant"s chosen occupation as follows:
| 1179-154 SALES-PROMOTION
|
1179-154 CHEF DE SERVICE DE PROMOTION DES VENTES |
| Prepares, administers and analyzes programs to promote sale of products or services, by performing any combination of the following duties: |
Établit, met en oeuvre et analyse des programmes destinés à promouvoir la vente de biens ou de services, en exécutant toute combinaison des tâches suivantes: |
| Reviews publications and confers with knowledgeable persons to obtain information regarding existing market conditions. Analyzes market conditions, sales possibilities, consumer-buying habits, competitive conditions, production costs and product lines to determine promotional approach. Develops sales promotion programs to achieve objectives. Recommends research studies, new or improved products and packaging, pricing and dealer-shared advertising expenditures. Informs other departments of marketing strategies and promotional plans to ensure efficiency and co-ordination. Evaluates promotional and marketing results against budgeted sales, costs, profits and effect on future sales. Maintains and analyzes records of pertinent statistical information. Supervises workers engaged in preparing promotional material, displays and other forms of advertising. Plans and organizes demonstrations to promote product or service. Prepares and administers direct-mail-advertising programs. Visits customers to advise on such matters as floor layout, training programs and incentive objectives. |
Parcourt les publications commerciales et s"entretient avec des spécialistes, afin d"obtenir des renseignements sur la situation du marché. Analyse la situation du marché, les débouchés éventuels, les habitudes d"achat des consommateurs, la concurrence, les prix de revient et les types de production pour déterminer les méthodes appropriées de stimulation des ventes. Met en oeuvre des programmes de promotion des ventes convenant aux objectifs à atteindre. Fait des recommandations portant sur la tenue de travaux de recherche, la fabrication de produits nouveaux ou améliorés, l"amélioration du conditionnement, les échelles de prix et le partage des dépenses publicitaires avec les marchands. Renseigne les autres services de l"entreprise sur les techniques de commercialisation et les projets de promotion des ventes qui seront mis en oeuvre, pour en assurer l"efficacité et les coordonner. Évalue les résultats de la vente et de la mise en marché en fonction des prévisions de ventes, des prix de revient, des bénéfices réalisés et de leur effet sur les ventes futures. Établit des dossiers statistiques sur les ventes et fait l"analyse de ces données. Dirige les employés chargés du matériel de promotion, des étalages et des autres formes de publicité. Conçoit et organise des démonstrations pour animer la vente d"un produit ou d"un service. Établit et met en oeuvre des programmes de publicité directe. Visite les clients de l"entreprise pour les conseiller en matière d"aménagement de locaux de vente, de programmes et de formation de motivation. |
[3] The applicant was interviewed by the Visa Officer at the Canadian Consulate in Dubai, United Arab Emirates, on April 20, 1997. At the end of the interview, the Visa Officer came to the conclusion that no visa should be given to the applicant. The Visa Officer came to the view that the applicant"s work experience could not qualify him as a Sales-Promotion Administrator. However, in the Visa Officer"s view, the applicant"s work experience qualified him as a "Sales Manager". Unfortunately for the applicant, since the occupational demand for Sales Manager in Canada was zero at that time, no visa could be granted to him and, as a result, his application for permanent residence was turned down.
[4] The applicant raises a number of issues. Firstly, he says that the principles of procedural fairness were not followed by the Visa Officer. I cannot agree. The applicant was interviewed in Dubai by the Visa Officer and was given sufficient time and leeway by the Visa Officer to clearly set out his work experience so as to satisfy the Visa Officer that he was qualified as a Sales-Promotion Administrator within the definition of the CCDO. The fact that the Visa Officer may not have told or indicated to the applicant his concerns regarding the nature and extent of the applicant"s work experience does not, in my view, constitute a breach of natural justice. If a Visa Officer had an obligation to indicate, at every turn, his concerns regarding an applicant"s work experience or regarding any other issue raised by the application, interviews would never end. There may well be situations were a Court will conclude that natural justice requires the Visa Officer to put a concern to the applicant during their interview but, in my view, the present matter is not one of those situations. It must be remembered that the burden of satisfying the Visa Officer is upon the applicant. What is important and essential is that the applicant be given the chance to put his case to the Visa Officer. In the present matter, there can be no doubt that the applicant was given such an opportunity.
[5] Another issue arises with respect to natural justice. The applicant submits that two of the documents submitted to the Canadian High Commission in London were not included in the file sent to the Visa Officer in Dubai. Further, although the applicant brought these documents with him to the interview, neither before nor during the interview, according to the applicant, did the Visa Officer read these two documents. The first document is a letter from the applicant"s employer in Dubai, Al-Futtaim Electronics Co., dated August 3, 1996. In this letter, the employer states that the applicant has been working for him since December 12, 1991 and that his "job responsibilities includes [sic ] the following". Then follows the tasks performed by the applicant. For the sake of clarity, the job responsibilities, as described by the employer, are the following:
| - Incharge [sic] of retail and wholesale team. |
| - Promotion of Sales in retail and wholesale. |
| - Preparation and presentation of Sales proposal to higher management. |
| - Setting the target for retail team in the Show room as well as for wholesale team. |
| - Complete personnel support to retail and whole sale [sic] team regarding sale, discount and other promotion of sales. |
| - Marketing survey for competitors. |
| - Screening, testing and preparing the sales staff for new market. |
| - Looking after satisfactory customer services. |
| - To receive complete daily feed back [sic] from all Sales staff regarding Sales. |
| - Creating and Implementing ideas in connection with promotion of Sales. |
[6] The other document which the applicant submits the Visa Officer never looked at is a document entitled "Occupation Description Form". This document, prepared by the applicant himself, sets out his duties with his employer. Again, for the sake of clarity, I reproduce the duties which appear on this document:
Main duties:
- In charge of three retail outlets and wholesale market of Abu Dhabi;
- Different methods of promoting sales in retail outlets and wholesale market;
- Preparation and presentation of complete sales proposals to higher management;
- Setting the target for retail outlets as well as for dealers sale in coordination with the general manager;
- Complete personnel support to retail and wholesale staff regarding sale, discount and other promotion of sales;
- Complete marketing survey for competitors in Dubai and Abu Dhabi;
- Screening, testing and preparing the sales staff for new market;
- Looking after satisfactory customer services and their opinion about the services rendered;
- Receiving complete daily feedback from all sales staff regarding sales of product;
- Creating and implementing new ideas in coordination with the retail and wholesale staff in connection with promotion and upgrading of sales technique.
[7] The applicant submits that the Visa Officer ought to have read these documents and, if he had, he might have taken a different view of the applicant"s work experience. Again, I cannot agree. As I indicated to counsel for the applicant during the hearing, both documents contain a broad and general description of the work allegedly performed by the employee for the employer. In practical terms these descriptions are not very useful. What matters, and what mattered for the Visa Officer, is to find out from the applicant what he did on a day-to-day basis. The Visa Officer requested that the applicant explain the nature of the work which he performed on a day-to-day basis. It is the information given by the applicant to the Visa Officer in response to the Visa Officer"s questions that led the Visa Officer to conclude that the applicant"s work experience could not qualify him as a Sales-Promotion Administrator.
[8] The Visa Officer ought perhaps to have reviewed these documents prior to or during the interview. However, it is my view that a review of these documents would not have changed anything since the oral answers provided by the applicant gave the Visa Officer a detailed explanation of his job requirements. Consequently there was no breach of natural justice by reason of the fact that the Visa Officer did not review the two documents prior to or during the interview with the applicant.
[9] The applicant also submits that the Visa Officer erred in his interpretation and application of the definition of Sales-Promotion Administrator in the CCDO. During the hearing, I made it quite clear to counsel for the applicant that I believed that the Visa Officer had not misinterpreted the definition.
[10] My view of this case is that the applicant was given full opportunity by the Visa Officer to explain his work experience. The Visa Officer, after listening to the explanations given to him by the applicant, concluded that he did not have the relevant experience to qualify him as a Sales-Promotion Administrator. As a result, he assessed the applicant"s experience in the category of Sales Manager in respect of which he concluded that the applicant did have the relevant experience. Unfortunately for the applicant, as there was no demand for that particular skill in Canada, his application was dismissed. In my view, on the evidence before him, the Visa Officer"s conclusion is unassailable and, consequently, the application for judicial review will be dismissed.
"MARC NADON"
Judge
Ottawa, Ontario
May 11, 1998