Date: 19981023
Docket: IMM-3264-97
BETWEEN:
JAVED SHAIKH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J.:
INTRODUCTION
[1] This is an application for judicial review of the decision of an immigration officer dated June 27, 1997, whereby the applicant"s application for permanent residence was refused. This application is made pursuant to subsection 18.1(2) of the Federal Court Act and subsection 82.1(2) of the Immigration Act. The applicant seeks an order of certiorari quashing the said decision and an order for a mandamus directing the Respondent to process the applicant"s application for permanent residence, or in the alternative, an order referring the matter to a different immigration officer for redetermination of the application for permanent residence in Canada.
FACTS
[2] The applicant, a citizen of India, moved to the United States in 1988 with his wife and four children. He found employment in 1989 with Kabana Grill & Bar in New York City until the establishment closed in 1994. He was unemployed for two years and became employed in 1996 working for a Pakistan restaurant in Brooklyn. On June 12, 1996, Mr. Shaikh filed an application for permanent residence in Canada in the independent category of caterer with the Canadian Consulate, Immigration Section, in Detroit, Michigan, U.S.A. On April 22, 1997, Mr. Shaikh attended an interview with an immigration officer. By letter dated June 27, 1997, the applicant was advised that his application was refused. The officer"s refusal was based on the following assessment:
| Age 10 |
| Occupational Demand 10 |
| Specific Vocational Preparation 18 |
| Experience 0 |
| Arranged Employment 0 |
| Demographic Factor 08 |
| Education 13 |
| English 06 |
| French 0 |
| Personal Suitability 02 |
| TOTAL 67 |
Decision of the Immigration Officer
[3] The immigration officer considered Mr. Shaikh"s application in the independent class of caterer pursuant to subsections 8(1) and 9(1) of the Immigration Regulations, 1978 . The officer awarded zero points for experience, zero points for arranged employment and two points for personal suitability, for a total of 67 points. With respect to Mr. Shaikh"s experience, the immigration officer found that the submitted letter of employment in India was very vague and highly suspect and that when his employment experience at each of the establishments where the applicant was employed was discussed, based on the definition from CCDO, Mr. Shaikh was unable to elaborate on questions regarding duties performed as a caterer and, consequently, the immigration officer did not believe the applicant had been employed as a caterer in India. Mr. Shaikh was given zero points for arranged employment because the letter, intending to show that employment had been secured, was full of mistakes, unprofessionally done, and stated that "wages would be considered at the interview". This did not, in her view, constitute a credible offer of employment. The applicant agreed the letter was not a job offer but only an inteview for a job. As for personal suitability, the officer found that Mr. Shaikh lacked motivation and resourcefulness and would have difficulty in establishing himself in Canada. The officer considered the fact that Mr. Shaikh had been unemployed for a period of two and a half years, that he only returned to work upon being informed of the interview with an immigration officer, and that the bank statement of the U.S. bank account provided was over one year old and did not hold sufficient funds to support a family of six. Consequently, two points were awarded for personal suitability.
SUBMISSIONS
[4] The applicant submits that the immigration officer committed several jurisdictional and procedural errors in coming to the decision dated June 27, 1997. First, the officer made an erroneous finding of facts which was based on improper considerations. Second, the immigration officer failed to observe procedural fairness or natural justice in conducting her interview. Third, the officer erred in law in deciding to refuse the application for permanent residence.
[5] The respondent submits that the immigration officer did not err in law in assessing the applicant"s experience and personal suitability. The officer assessed the applicant"s application in light of the factors listed in column I of the Schedule I of the Immigration Regulations, 1978 and the applicant"s credibility. Further, the officer did not breach any procedural rights given that there was no onus upon the officer to advise the applicant of any concerns she may have had about the documents provided in support of his application for permanent residence.
[6] I am satisfied, from a reading of the immigration officer"s affidavit, that she did advise the applicant of all of her concerns.
ISSUES
[7] The applicant raises three issues:
| 1. Whether the immigration officer failed to observe a principle of natural justice, procedural fairness or other procedural requirements. |
| 2. Whether the immigration officer based his decision on an erroneous finding of fact. |
| 3. Whether the immigration officer erred in law in refusing the applicant for permanent residence. |
Procedural rights
[8] In the present case, the applicant submits that the visa officer breached a duty of fairness by not providing him with the opportunity to produce alternative evidence relating to his financial resources. The officer took into consideration a U.S. bank statement which was over one year old and showed insufficient funds available to support a family of six, as well as the fact that he had been unemployed for two and a half years and concluded that the applicant lacked motivation, resourcefulness and would have a difficult time establishing in Canada.
[9] It is trite law that a visa officer is under a duty to act fairly when assessing an application for permanent residence under the Immigration Act. The duty to act fairly requires that applicants be given the opportunity to address any prejudicial information relevant to their case. Conversely, it is also true that the duty of fairness may require that the visa officer inform the applicant of his or her concerns so that the applicant may address these issues: Asghar v. Canada, [1997] F.C.J. 1091; Fong v. Canada (Minister of Employment and Immigration) (1990), 35 F.T.R. 305; Muliadi v. M.E.I., [1986] 2 F.C. 205 (F.C.A.).
[10] In a recent case, Asghar v. Canada ( supra), the Federal Court considered whether a visa officer breached his duty to act fairly by failing to give the applicant an opportunity to adduce evidence regarding his qualifications. Justice Muldoon reviewed the case law and found that the applicant has the onus to satisfy the visa officer that he or she met the requirements set out in the Act, and that the visa officer is under no duty to request that evidence or further evidence be produced: Prasad v. M.E.I., [1996] F.C.J. 453; Hajariwala v. M.E.I., [1989] 2 F.C. 79, and Wai v. M.C.I. , [1996] F.C.J. 1387. Justice Muldoon went on to consider the alleged breach of fairness and dismissed the allegations as follows:
| It is still not clear in what circumstances procedural fairness requires that the visa officer apprise the applicant of his concerns. However, from the authorities cited above one may conclude that this duty does not arise merely because the visa officer has not been convinced, after weighing the evidence, that the application is well founded. The visa officer"s task is precisely to weigh the evidence submitted by the applicant . In the Court"s words, in light of the onus that is on the applicant to produce evidence, it is not apparent that the visa officer should be compelled to give him a "running-score" at every step of the proceeding [Covrig v. M.C.I., (1995), 104 F.T.R. 41]. |
| (Emphasis added) |
[11] While it is clear that the duty of fairness applies to the visa officer, I am unable to find that the officer breached a duty of fairness. As evidenced in the Respondent"s affidavit, it was brought to Mr. Shaikh"s attention at the interview that his U.S. bank statement showed insufficient funds to support a family of six. He merely replied that his wife owned property in India which would be sold for that purpose and did not provide a current American bank statement. I am satisfied that Mr. Shaikh had the onus of providing the officer with the appropriate documents in support of his application and that he was given an opportunity to do so at the interview and to respond to the officer"s concerns. In my opinion, the visa officer did not commit a breach of fairness.
Relevant factors for consideration and discretion in assessing the applicant"s experience, arranged employment and suitability for purposes of permanent citizenship.
[12] The factors for consideration are set out in Schedule I of the Immigration Regulations, 1978. The factors under review in this application are: experience, arranged employment and personal suitability.
[13] The applicant submits that the visa officer failed to consider appropriate evidence in the assessment of his experience. In his affidavit, Mr. Shaikh declared that he has been working as a caterer for 12 years. He submits that he has earned a diploma in catering at Zarapar Catering Institute in Bombay, India, in 1984, that he worked in Bombay as a trainee from 1985 to 1986 and as a catering manager from 1986 to 1988 when he moved to the United States. From 1989 to 1994, he was employed in New York City as a caterer. He was unemployed from 1994 to 1996 because he could not find work in his particular field but subsequently became employed from 1996 as a caterer in a Pakistan restaurant in Brooklyn.
[14] The respondent argues that the officer did consider the above mentioned evidence. In her affidavit, the officer states that she considered the two letters of employment, found that they appeared altered and therefore could not give them credence. The visa officer states in her affidavit, in paragraph 2 b), " I found his letter of reference from Hotel Govardhan Bar & Restaurant highly suspect. One quarter of the page on the left side has black stains that appear to have been obtained while photocopying. The back side of this letter of reference has part of his certificate in catering photocopied onto it in an irregular manner" and in paragraph 2 c) of her affidavit, "the letter of reference from Kabana Grill & Bar in New York has his name inserted over someone else"s name which was removed. The salutation has also been altered. The name implies a small establishment but one of the job duties noted on it is "arrange and decorate banquet halls for customers". Also, the officer found that the applicant was unable to answer questions relating to the catering business and to elaborate on how to perform catering tasks. In the respondent" s opinion, the officer did not err in assessing the credibility of the applicant"s documentary evidence.
[15] The applicant also submits that the officer took into consideration irrelevant issues in assessing his offer of employment, such as the spelling and grammar mistakes and lack of professionalism. For the respondent, it is argued that the documents were not credible. The officer declares, at paragraph 3 d) of her affidavit, that "the company name and description of services of Horizon Catering Services (his alleged job offer) is prepared on a home computer with spelling and grammar mistakes. It struck me as being unprofessional for a business. The first paragraph states they are offering him a job but then ask him to provide two reference letters and copies of educational certificates. They further state "your wages will be discussed at the time of your interview". This lead me to believe that he is not being offered a job, but an interview".
[16] In my view, while visa officers are not experts in forged documents, they have a duty to consider the authenticity and veracity of the documentary evidence presented to them in support of an application for permanent residence. In my view, the officer exercised her discretion in assessing whether the letters of reference raised suspicions about their authenticity or veracity. I am unable to find that the officer"s assessment, based on the documentary evidence available, is unreasonable. In Hussain v. Canada (Minister of Citizenship & Immigration) (1997), 36 Imm. L.R. (2d) 232 (Fed. T.D.), Justice Heald stated that " the weight to be given a letter of this nature is a question of fact to be determined by the visa officer".
[17] Lastly, the applicant argues in his written submissions that the officer erred in the assessment of his personal suitability and that she considered irrelevant factors such as his experience which had already been assessed under factor 3 of Schedule I of the Immigration Regulations, 1978. The decision shows that the officer took into consideration that in the nine years since his arrival in the U.S., he has been employed as a "fast food" cook, a waiter and delivery person, that he was unemployed for two to two and a half years and returned to work upon the scheduling of his interview with a visa officer. The officer also considered that when asked about the two year period during which he was unemployed, he responded that he did not find work he liked or that paid enough money. And finally, the bank statement provided did not hold sufficient funds to support a family of six.
[18] The applicant submits, in his written memorandum, not at the hearing, that this amounts to double counting and that the officer erred in assessing his personal suitability. While I agree with Mr. Justice Wetston when he states in Ho v. Canada (Minister of Employment and Immigration), [1994] F.C.J. 1845, that personal suitability is not meant to encompass factors already assessed in other items, I also find that the assessment of one"s personal suitability is an economic factor which allows a visa officer to form an opinion with respect to the applicant"s ability to successfully survive in his chosen field in Canada: Amir v. Canada (Minister of Citizenship & Immigration) (1996), 125 F.T.R. 158 (T.D.); Hussain v. Canada (supra).
[19] In my view, after reading the visa officer"s affidavit upon which she was not cross-examined, the officer took into consideration the number of years the applicant had been in the United States, the type of work he had performed, the length of employment or lack thereof, the answers provided in the interview relating to catering, as well as the lack of financial means to support a family of six. In my view, these considerations were considered from a different perspective under personal suitability to bring into light the applicant"s motivation, resourcefulness, initiative, and adaptability to successfully establish himself in Canada. As stated in Stefan v. Canada (Minister of Citizenship and Immigration) , [1995] F.C.J. 1793, the consideration of an item, such as education, previously assessed under a different factor is not necessarily double counting where it is considered from a different perspective. Justice Simpson states, at page 2:
| The applicant was given the maximum points for her educational achievements and it is true that the Officer considered education a second time when he assessed personal suitability. However, education was considered from a different perspective under personal suitability. During that assessment, the question was whether the applicant had the training necessary to use her professional qualifications as a civil engineer in Canada. |
| In my view, this approach to the analysis was error free. It was certainly relevant in an analysis of the Factors to consider whether the applicant had made any inquiries about the requirements for using her civil engineering in Canada, and it was also relevant to consider whether she had taken the computer training needed to practise her profession in this country. |
[20] While I have some reservations and concerns about the generosity of the officer in assessing the number of units awarded under personal suitability and experience, I am unable to find that this assessment is unreasonable in light of the above comments made by the visa officer in her affidavit and, as I have stated, she was not cross-examined.
[21] In Fok v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. 1595, Richard J. (as he then was) states:
| "It is also established that the Court should not interfere with the exercise of a discretion by 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 Court should not interfere" |
[22] In Omar v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. 990, Justice Richard states:
| Assessing units in relation to an applicant"s qualifications for admission to Canada is within the discretion of the visa officer, and unless it is clearly exercised in error, the Court will not intervene. |
| ... |
| The visa officer"s opinion that the applicant had no experience as a caterer and that he could not deliver an immigrant visa under that occupation pursuant to subsection 11(1) of the Regulations, is reasonable and is not arbitrary. There are no grounds to warrant judicial review. |
[23] In To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. 696, the Federal Court of Appeal states:
| Here, the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court: |
| 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. |
CONCLUSION
[24] It is clearly apparent from a reading of the visa officer"s affidavit that she gave careful consideration to all of the relevant documentation presented to her and that she informed the applicant of all of her concerns.
[25] I cannot conclude that the visa officer erred in arriving at the decision to refuse the applicant"s application for permanent residence.
[26] The application for judicial review is denied.
[27] Neither party had a question to be certified.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, Ontario
October 23, 1998