Date: 20000609
Docket: IMM-2798-99
BETWEEN:
AMAN PREET SINGH ARORA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Aman Preet Singh Arora, the applicant, is a citizen of India who applied for permanent residence in Canada as an independent immigrant under the assisted relative class.
[2] Mr. Arora had received an offer of employment from his uncle in Canada for the position of manager of a retail outlet which his uncle proposed to open. As a result of that offer, Mr. Arora"s application for permanent residence in Canada was assessed by a visa officer with specific regard to his intended occupation of Retail Trade Manager. This corresponded to category 0621 in the National Occupational Classification System ("NOC").
[3] Mr. Arora did not obtain sufficient units of assessment to qualify for immigration to Canada as an independent immigrant under the assisted relative class.
[4] Of relevance to that assessment, Mr. Arora said on this application, is that on three occasions prior to the completion of the assessment the visa post received anonymous information concerning Mr. Arora. The communications were to the effect that Mr. Arora had no experience as a manager; that he had no familial relationship with the man claiming to be his uncle; that Mr. Arora was married and would send for his wife once he arrived in Canada; and that Mr. Arora worked for a hotel and would present false documents at his interview.
[5] In this application for judicial review, Mr. Arora seeks an order setting aside the decision of the visa officer finding that he did not meet the requirements for immigration to Canada and an order referring the matter for redetermination by a different visa officer.
ISSUES
[6] The applicant identified four issues with regards to the visa officer"s decision. He asserted that:
| 1. Procedural fairness and natural justice were breached because the visa officer did not inform Mr. Arora of the anonymous communications. |
| 2. The visa officer"s assessment of the selection criterion of personal suitability was unreasonable. |
| 3. The visa officer"s assessment of the selection criterion of work experience was unreasonable. |
| 4. The visa officer erred in law in failing to exercise positive discretion pursuant to subsection 11(3) of the Immigration Regulations, 1978, SOR/78-122, as amended ("Regulations"). |
STANDARD OF REVIEW
[7] In Hao v. Canada (The Minister of Citizenship and Immigration), [2000] F.C.J. No. 296, Reed J. of this Court reviewed jurisprudence from this Court with respect to the standard of review applicable to the review of a visa officer"s decision. She adopted the standard of reasonableness simpliciter. I endorse Justice Reed"s analysis and adopt the reasonableness simpliciter standard.
[8] The Court is therefore required to assess whether the visa officer"s decision is reasonable and whether the visa officer"s reasons stand up to a somewhat probing examination.
ANALYSIS
(i) Was there any breach of natural justice or procedural fairness?
[9] The visa officer provided a statutory declaration in opposition to this application. In that declaration she stated at paragraph 8:
| 8. We received some anonymous letter and messages concerning the content of Mr. Arora"s file, which I mentioned in my Caips note. But the allegations against Mr. Arora did not count in or influence my decision by any means. |
[10] While the visa officer was cross-examined on her statutory declaration, she was not cross-examined on her evidence that the allegations against Mr. Arora did not influence her decision.
[11] I have reviewed the entire record before me, and on the basis of the visa officer"s unchallenged evidence and my review of the record, I conclude that the visa officer did not rely on the allegations contained in the anonymous communications.
[12] In my view, as the visa officer placed no reliance upon this information, the failure to advise the applicant of the information did not in all circumstances of this case vitiate the visa officer"s decision. I so conclude because the purpose of advising the applicant of these communications would be to provide an opportunity to refute the information therein. In the absence of reliance upon that information there was nothing to refute.
[13] This is, in my view, quite different from the circumstances before the Court in Aujla v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1007 (F.C.T.D.), relied upon by the applicant. There, in finding that the visa officer should have informed an applicant of prejudicial information which the visa officer received, the Court specified that it was evidence "which clearly affected the disposition of the case".
(ii) Was the visa officer"s assessment of the selection criterion of personal suitability unreasonable?
[14] Subsection 6(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, sets out the general principle that:
| 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. |
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. |
| [15] Subsection 8(1) of the Regulations provides: |
| 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; (b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of Schedule I, other than the factor set out in item 5 thereof; (c) in the case of an entrepreneur, an investor or a provincial nominee, on the basis of each of the factors listed in Column I of Schedule I, other than the factors set out in items 4 and 5 thereof. |
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; b) dans le cas d'un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, autre que le facteur visé à l'article 5 de cette annexe; c) dans le cas d'un entrepreneur, d'un investisseur ou d'un candidat d'une province, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, sauf ceux visés aux articles 4 et 5 de cette annexe. |
[16] The factors listed in Column I of Schedule I include personal suitability and experience in the occupation in which the applicant is assessed.
[17] Mr. Arora submitted that the visa officer reduced the personal suitability factor because she was under the impression that his uncle"s business could fail and that Mr. Arora had no alternate plans for employment. Mr. Arora asserted that the viability of the business was not something to be assessed by the overseas visa officer, and that she therefore erred in assessing his personal suitability.
[18] The visa officer was cross-examined on this issue and on that cross-examination she testified that:
| Q. Now, what I want to talk about is the three points for personal suitability. Is that score premised on the belief that the business would not be functional in the very near future? |
| A. No. This does not have anything to do with the job offer, or with the business. We are assessing the candidate"s adaptability, or suitability, should I say. I had been looking at factors such as precisely adaptability, or motivation, or some other things. I don"t know. How resourcefulness [sic] this candidate could be. How easily he could adapt himself to a new environment. What has he had in the past in his life that would help him adjusting easier and better to this new environment which is going to be Canada for him. So, I did not " for the matter, for that factor I did not look at or think of the job offer at all. |
| Q. But why did you mention that he did not seek any alternative to the family business job offer? |
| A. He himself agreed that when he first " when he finished his education in India, just as a matter of few days after graduating in India, he got a job not only based on his own merit but on the recommendation of his uncle, a job which was not completely in the continuation of what he had studied for. |
| And so the fact of him not having looked [for] something else in order to find something maybe in his own field just in case the first one would not work, all this showed to me that he did not have enough resourcefulness in order to find some other alternative for himself should this not " this prepared plan not work, as an alternative (b) or (c), or plan (b), or plan (c). These were all factors. |
[19] In determining the appropriate units of assessment to be awarded for the criterion of personal suitability, the visa officer is mandated by section 8 of the Immigration Regulations and Schedule I thereto to assess the suitability of the applicant to become successfully established in Canada based on the person"s adaptability, motivation, initiative, resourcefulness and other similar qualities.
[20] On the evidence of the visa officer, viewed in the context of her statutory mandate, I cannot conclude that the visa officer"s assessment of personal suitability was not reasonable.
(iii) Was the visa officer"s assessment of the selection criterion of work experience unreasonable?
[21] Mr. Arora also argued that the visa officer erred in concluding that his work experience was not transferrable because it was "Indian" and erred because she failed to direct her mind to the duties required in the actual job offer. He alleged that the visa officer "slavishly" followed the NOC description over and above the job offered.
[22] With respect to the first contention, there is no reference in the officer"s CAIPs notes, nor any other evidence, that the visa officer found the previous work experience to be non-transferrable.
[23] With respect to the second contention, the evidence before the visa officer was to the effect that the applicant"s past duties did not include organizing the operation or activities of any establishment that sells merchandise on a retail basis, performing or studying market research to determine consumer demand, authorizing budget expenditures, or implementing price and credit policies. Those duties constitute some of the main duties of the NOC classification 0621 for Retail Trade Managers.
[24] Schedule I of the Regulations requires that work experience be assessed by years in the intended occupation for which the applicant is assessed.
[25] The visa officer swore that:
| 6. Only part of the duties Mr. Arora was handling, corresponded to those of a "manager of a retail store". Mr. Arora had started his current position of "Officer manager and merchandiser" shortly after his graduation from university. Mr. Arora confirmed himself having learnt the job he is occupying, in the field and by receiving "on-the-job-training" from his other colleagues, without any prior training and exposure to the responsibilities which he was in charge of. Therefore, while assessing the "job experience" criteria, I only considered as working experience the second year of his employment which is when he had become more aware of those aspects of his work which are also part of the duties of a "manager of a retail shop", the profession he has a family job offer for, in Canada. Consequently, I awarded him 2 points for experience, corresponding to one year of employment as office manager and merchandiser. |
[26] The visa officer"s testimony on cross-examination was to the same effect.
[27] I conclude that it was reasonably open for the visa officer to award two points for Mr. Arora"s experience on the basis that the first of the two years of his prior work experience as an office manager and merchandiser in India had been on the job training.
(iv) Did the visa officer err in law in failing to exercise the positive discretion conferred by subsection 11(3) of the Regulations?
[28] In Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316, Justice Rothstein of this Court, as he then was, considered a similar fact situation and held as follows:
| ...the applicant says that the visa officer erred in not exercising her discretion under s. 11(3) of the Regulations [see footnote 1]. Section 11(3) does not specify what is required to engage the visa officer"s exercise of discretion under it. Nothing precludes the visa officer, on his or her own motion, from proceeding under s. 11(3) if he or she considers that it is warranted to do so. However, if an applicant wishes the visa officer to exercise discretion under s. 11(3), it would seem that some form of application would be required. While there is no prescribed wording to which an applicant must adhere, I would think the application would at least have to indicate some good reasons why a units of assessment determination would not reflect the chances of successful establishment in Canada by the applicant. There was no such application here. [footnote omitted] |
[29] I agree with that analysis and adopt it.
[30] In the present case, the applicant"s argument must fail because the visa officer was not requested by the applicant to exercise any positive discretion before the visa officer arrived at her final decision.
[31] I have therefore concluded that this application for judicial review should be dismissed.
[32] At the conclusion of oral argument, I reserved my decision and agreed to distribute my reasons for the purpose of allowing counsel the opportunity to make written submissions regarding certification of a question. Therefore, while these reasons have been finalized and distributed, no order has yet issued. Counsel for the applicant shall have until the close of business at the Registry of the Court in Ottawa on June 16, 2000 to file and serve any written submissions on certification of a question. Thereafter respondent"s counsel will have until the close of business at the Registry of the Court in Ottawa on June 23, 2000 to file and serve any written submissions on behalf of the respondent. Counsel for the applicant will have until the close of business on June 29, 2000 to file and serve any written reply submissions to the Court.
[33] Judgment dismissing this application for judicial review will issue following consideration of any submissions provided to the Court.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
June 9, 2000