IMM-4355-96
BETWEEN:
MOHAMMAD AHMAD
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
The applicant, Mohammad Ahmad, requests judicial review of an Immigration Officer's decision to refuse his application for landing.
1. FACTS
The applicant is a Pakistani citizen currently employed as a Digital Technician in Saudi Arabia.
On June 13, 1995, the applicant submitted an application for permanent residence in Canada on behalf of himself and three dependents to the Canadian Embassy in Riyadh, Saudi Arabia.
On September 29, 1996, Hanaa Shaalan, an Immigration Officer (the Officer) at the Canadian Embassy in Riyadh, interviewed the applicant in order to assess his application.
Upon learning that the applicant had two brothers-in-law who are Canadian citizens, the Officer proceeded to assess the applicant as a member of the Assisted Relative category described in subsection 2(1) of the Immigration Regulations, 1978 (the Regulations).
During the assessment, the Officer came to the conclusion, based on the applicant's description of his employment history, that she could not process the applicant's application as a Powerhouse Repairman, his intended occupation in Canada. The Officer concluded that, having regard to the definition of Powerhouse Repairman in the Canadian Classification and Dictionary of Occupations (the CCDO), she was unable to award any units of assessment for "experience" (item 3, column 1 of Schedule 1 of the Regulations).
After some discussion, it was decided that the applicant could be assessed under the occupation rubric "Tester and Regulator". The Officer awarded the following units of assessment to the applicant in the occupation of Tester and Regulator.
Age 00
Occupational Demand 05
Specific Vocational Preparation 15
Experience 06
Arranged Employment 00
Demographic Factor 08
Education 13
English 09
French 00
Bonus 05
Personal suitability 05
Total 66
On September 30, 1996 Counsellor Robert Shalka of the Canadian Embassy in Riyadh, who did not do the interview, sent a letter to the applicant denying his application. The letter indicated that the applicant did not meet the minimum required units of assessment required to pass for immigration to Canada in the "Independent category".
2. APPLICANT'S ARGUMENTS
The applicant takes issue with virtually every facet of the Officer's assessment. I have restricted this part to a discussion of those points that I feel are significant.
2.1 Applicant's intended occupation
The applicant contends that the Officer erred in finding that the applicant could not be assessed as a Powerhouse Repairman. To be specific, the applicant alleges that the Officer did not properly assess the applicant's work experience.
2.2 Calculation of units of assessment
The applicant's memorandum includes several allegations that the Officer's calculation of various items in Schedule I of the Regulations ignored "certain" elements of evidence favourable to the applicant. None of the allegations are substantiated by proof of any kind. The applicant appears to be simply voicing his disagreement with the Officer's weighing of evidence. The applicant does, however, raise one point regarding calculation that must be addressed.
2.2.1 Personal suitability
The applicant contends that the Officer failed to properly assess the "personal suitability" item provided for in Schedule 1 of the Regulations. Specifically, the applicant alleges that the Officer incorrectly factored the applicant's age in her calculation of personal suitability.
2.3 Sufficient Funds
The applicant insists that the Officer erred in finding that the applicant did not have sufficient funds to support settlement in Canada.
2.4 Independent immigrant or assisted relative?
As noted above, whereas the applicant was assessed as an assisted relative (section 10 of the Regulations), the letter of September 30, 1996 refused the applicant's application for failing to pass in the independent category (section 9 of the Regulations). Accordingly, the applicant argues that the Officer and Counsellor erred in law in refusing his application.
2.5 Letter of Refusal (found at page 11 of Applicant's Record)
Letter states "I have assessed" and it is signed by Robert Shalka while the interview and assessment were made by Hanaa Shaalan.
3. ANALYSIS - 3 ISSUES:
3.1 Did the Officer err in finding that the applicant could not be assessed as a Powerhouse Repairman?
According to the relevant jurisprudence, a visa officer has a duty to assess an application with reference to the occupation represented by the applicant as the one for which he or she is qualified and prepared to pursue in Canada.1 In addition, there is a clear responsibility on the part of a visa officer to assess alternate occupations inherent in the applicant's work experience.2 A visa officer must consider an applicant's aptitudes, previous work experience, and whether or not this constitutes experience in the intended occupations.3
The "Occupational Demand List" distributed to visa officers by the Minister of Citizenship and Immigration provides a list of the various occupations in demand in Canada at any given moment. Each occupation in the Demand List provides a reference code to the CCDO. The CCDO sets out the accepted definition for each occupation. The CCDO definition of powerhouse repairer (code 8584-130) reads as follows:
| "Installs, adjusts and repairs, mechanical equipment and parts of machinery in electric-generating stations, such as generators, waterwheels, valves and piping: |
| Installs machinery and equipment, according to lay-out plans and drawings, using hoists, lift trucks, hand and power tools. Examines and listens to equipment in operation to diagnose malfunctions. Dismantles machinery and such auxiliary equipment as compressors and pipe systems, using instruction manual. Repairs or replaces defective parts and reassembles machinery and auxiliaries. Conducts performance tests on new or repaired equipment, following specifications. |
| May fabricate special tools and replacement parts for equipment. May specialize in repairing mechanical equipment in a particular type of electric-generating station and be designated accordingly; for example...".4 |
The applicant provided the Officer with two letters of reference from his current employer. Both letters described in some detail the applicant's duties as a Digital Technician. The Officer noted that the duties so described did not include the installation of machinery. According to the Officer's affidavit, the applicant eventually conceded that his work experience could not be reconciled with the CCDO definition.
The applicant maintains that he is qualified as a powerhouse repairman and that he did not concede otherwise. He faults the Officer for not having assessed his past work experience to this effect. It bears mentioning that the description he himself gives of his work experience prior to his current position does not coincide with the CCDO definition.5
While the applicant has seen fit to qualify the respondent's position as a "single minded obsession to find the exact wording of the C.C.D.O. definition",6 there is nothing in the record to suggest that the Officer did not make her determination consistent with the duty of fairness as described above.
3.2 Did the Officer err in her assessment of personal suitability?
3.2.1 Insufficient funds
According to Schedule I of the Regulations, personal suitability is to be determined based on the person"s "adaptability, motivation, initiative, resourcefulness and other similar qualities".
It must be noted that the Officer's Computer Assisted Immigration Processing System (CAIPS) notes and her subsequent affidavit do not offer much insight into how the applicant's personal suitability was assessed. However, the respondent does acknowledge that the primary consideration in the Officer"s calculation of this item was what she deemed to be an insufficiency of cash funds for establishment in Canada. The respondent relies on the following observation in the Officer's CAIPS notes:
| "Also, given his age, no cash funds to support settlement, I believe that his settlement prospects are very poor. Refused on points".7 |
The respondent therefore submits that the Officer did not err in assessing the applicant"s personal suitability notwithstanding the property assessments and bank statements supplied by the applicant that indicate real estate holdings in Pakistan worth approximately $45 000 and over $20 000 in a Saudi bank account.8
| From the Officer"s CAIPS notes it is not clear whether "no cash funds to support settlement" means insufficient funds or none whatsoever. The Officer"s affidavit (tab B of the respondent"s Application Record) is silent on this matter. What is clear, however, is that in the event the Officer believed the applicant had no cash funds she was either mistaken on the evidence or did not have confidence in the validity of the applicant"s bank statements. If the latter is true than there may have been a duty to give the applicant some opportunity to disabuse the Officer of that impression.9 |
| In the alternative, if the phrase "no cash funds to support settlement" means insufficient funds, which is what I believe is meant, then this begs the question how much is enough. The respondent notes that despite the Officer"s finding with respect to funds she "nevertheless awarded 5 units of assessment out of a maximum of 10".10 Would a bank account of $50 000 have led to an assessment of 10 units? While the case law cited by the respondent on this point does establish that the criteria of adaptability, motivation, initiative, resourcefulness and other similar qualities are geared towards determining the applicant"s ability to make a living in Canada,11 the size of an applicant"s savings account should be meaningful in the context of a personal suitability assessment only insofar as it provides a possible forecast of future economic success in Canada.12 In the present instance, the fact that the applicant "left his country of citizenship and was able to successfully find and maintain employment for over twelve years in a country that has laws and employment practises that are inhospitable, to say the least, to foreign workers" (Applicant's Application Record, para. 23) is considerably more indicative of the applicant"s ability to make a living in Canada. |
| 3.2.2 Age |
| Paragraph 54 of the respondent's Application Record reads: |
| "It would appear that during the hearing, the Applicant was unable to demonstrate to the visa officer that he had sufficient funds to successfully establish himself and his family in this country. This, combined with other factors, convinced the visa officer that the Applicant's settlement prospects were poor and adversely affected his personal suitability". |
| (my emphasis) |
| Given that the only reference to "settlement prospects" on the record is the aforementioned excerpt from the Officer's CAIPS notes, the "other factors" cited by the respondent in the above paragraph can only refer to the applicant's age: |
| "Also, given his age, no cash funds to support settlement, I believe that his settlement prospects are very poor. Refused on points". |
| (my emphasis) |
| To the extent that item 1 of Schedule I of the Regulations already accounts for age, the Officer seems to have engaged in double counting, a practice normally proscribed.13 It would appear that age, as with other items in Schedule I, may only be considered de novo under personal suitability where it speaks to the applicant"s motivation, resourcefulness, etc.14 The respondent has not demonstrated this to be the case. |
| 3.3 Independent immigrant or assisted relative? |
| As noted above, the applicant was assessed as an assisted relative. In accordance with paragraph 10(1)b) of the Regulations, and subject to exceptions, an assisted relative who intends to reside in a place other than Quebec must be awarded at least 65 units of assessment in order to be issued an immigrant visa: |
| 10(1) Subject to subsections (1.1) and (1.2) and section 11, where an assisted relative makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the assisted relative and accompanying dependants of the assisted relative if |
| b) in the case of an assisted relative who intends to reside in a place other than the Province of Québec, on the basis of an assessment made in accordance with section 8, the assisted relative is awarded at least 65 units of assessment; |
| Subject to exceptions, subparagraph 9(1)(b)(i) of the Regulations provides that an independent immigrant must be awarded at least 70 units of assessment in order to be issued an immigrant visa. |
| 9(1) Subject to subsection (1.01) and section 11, where an immigrant other than a member of the family class, an assisted relative or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if |
| (b)(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment; |
| The confusion in the present instance arises from the fact that according to the September 30, 1996 decision, the applicant was awarded 66 units of assessment, thereby surpassing the minimum required of an assisted relative. However, as explained at paras. 22, 23 and 24 of the respondent's Application Record: |
| 22. "At the end of page 1 of the November 30, (sic) 1996 decision, the calculation of the units of assessment indicates that a five-unit bonus was awarded to the Applicant. This five-unit bonus was awarded on the basis that the applicant is a member of the Assisted Relative category. |
| 23. Indeed, since the computer system utilized by visa officers only recognizes a pass mark of 70 units of assessment (that required for independent applicants), all members of the assisted relative category under paragraph 10(1)b) are awarded an administrative five (5) bonus units of assessment. This bonus serves to make up the difference between the 65 units required by Assisted Relative category members and the 70 units recognized as a pass mark by the computer system. |
| 24. Therefore, the Applicant received 61 units of assessment (out of a required 65) and an additional 5 bonus units for the administrative reasons listed above". |
| The respondent therefore deduces, quite reasonably, that the presence of the bonus units in the applicant's case can only be explained by the fact that he was assessed and refused as an assisted relative. The respondent does acknowledge that the reference in the letter of refusal to the independent category was incorrect, but maintains that it was a mere clerical error that did not impact on the proper evaluation of the applicant as a member of the assisted relative category. The respondent therefore invokes the principle that a mistake of no consequence shall not vitiate a decision.15 |
| Having said this, it is important to point out paragraph 30 of the Officer's affidavit which reads: |
| "At the time of the evaluation, I identified no information that would lead me to believe that the Applicant should be granted an immigration visa despite failing to acquire a total of seventy (70) points as prescribed in section 9 of the Immigration Regulations, 1978". |
| Having been afforded ample opportunity to review her assessment, the Officer again confuses the relevant provision of the Regulations! While I would agree with the respondent that on the facts it would appear the applicant was assessed and refused as an assisted relative, the fact that the Officer remains oblivious to the discrepancy lends some credence to the applicant's contention that the Officer lacked the understanding and knowledge of the Immigration Act and its regulations. |
| 3.4 Letter of Refusal |
| The letter informing the applicant, dated September 30, 1996, of his refusal for permanent residence is signed by Robert Shalka, "Counsellor" at the Canadian Embassy in Saudi Arabia. It states: |
| This refers to your application for permanent residence in Canada, and your interview held on 12 May 1996. I have now completed my assessment of your application and regret to inform you that I have determined that you do not meet the requirements for imigration to Canada in the Independent category. |
| Pursuant to subsections 8(1) and 9(1) of the Immigration Regulations, 1978 as amended, immigrants in the Independent category shall be assessed on the basis of each of the factors liste din column I of Schedule I of the Regulations. These factors are: education, specific vocational preparation, experience, occupational demand, arranged employment or designated occupation, demographic factor, age, knowledge of English and French languages and, on the basis of an interview, personal suitability. |
| I have assessed your application considering the occupation of Tester and Regulator, in which you are qualified and experienced, however you only earned total 66 units of assessment in this occupation, which is insufficient for me to approve your application. Following is a breakdown of the units of assessment you have earned: |
| Age 00 |
| Occupational Demand 05 |
| Specific Vocational Preparation 15 |
| Experience 06 |
| Demographic Factor 08 |
| Arranged Employment 00 |
| Education 13 |
| English 09 |
| French 00 |
| Bonus 05 |
| Personal suitability 05 |
| Total 66 |
| You have also requested to be assessed as a Powerhouse Repairer. However, at interview, when you were requested to give a detailed description of your day to day duties yo failed to give an accurate description of this occupation's duties and did not demonstrate adequate past experience. Hence you failed to convince the inerviewing officer that you have any experience in this field. Therefore, in assessing you in this occupation, I could not award any points for experience which formed a bar to any further processing. |
| You have failed to earn the minimum required units of assessment required to pass in the Independent category (70). I consider the units of assessment which you have been awarded are an accurate reflection of your ability to successfully establih in Canada. |
| There is no other occupation apparent on your application in which you or your spouse are qualified and experienced, and under which hyour application would be successful. |
| Because you cannot meet the selection criteria established for Indenpendents, you are a member of the class of pesons who are inadmissible to Canada descrived in paragraph 19(2)(d) of the Immigration Act and I have refused your application. I have attached copies of the legislation referred to in this letter for your reference. |
| I have also considered possible humanitarian and compassionate factors. I have determined that there are insufficient grounds to warrant special consideration. |
| I realize that this decision may be a disappointment to hyou and regret that it could not be favourable. |
| Robert Shalka |
| Counsellor |
| In reading this letter, one can easily conclude that it was Mr. Shalka who interviewed the applicant and who made the assessment concerning the issue of occupation and assigned the "points" for the factors as listed in the letter. |
| This is incorrect as the interview took place with a Ms. Hanaa Skaalan on September 29, 1996. |
| Although the fact that the letter is signed by Mr. Skalka and he indicates he held the interview does not, in itself, vitiate the process of what took place, this with the "double counting" and the issue of how much money is required to become self-sufficient makes the process invalid. |
| The application for judicial review is allowed and the matter is returned to a different Visa Officer for determination. |
| Both parties have informed me that they have no question to be certified. |
| J U D G E |
| OTTAWA |
| October 30, 1997 |
1 Gaffney v. Canada (M.E.I.), (1991) 12 Imm.L.R. (2d) 185, 121 N.R. 256, 40 F.T.R. 79
2 Li v. Canada (M.E.I.), (1990) 9 Imm.L.R. (2d) 263 (F.C.T.D.)
3 Dhaliwal v. Canada (M.E.I.), (1992) 16 Imm.L.R. (2d) 212 (F.C.T.D.) and Hung v. Canada (Solicitor General), (Sept. 23, 1994).IMM-3968-93 (F.C.T.D.)
4 Respondent's Application Record, p.35
5 "That my work consisted of fixing the generators, compressors, and accessories". Applicant's affidavit, para. 43.
6 Reply of the applicant, para.11
7 Respondent's Application Record, p.27
8 See pp.23 and 31 of documents disclosed by the applicant pursuant to R.1612 of the Federal Court Rules, and respondent's Application Record, p.10
9 Fong v. Canada (M.E.I.) (1990) 11 Imm.L.R. (2d) 205, and Dhaliwal v. Canada (M.E.I.),supra
10 Respondent's Application Record, para.54
11 Hemani v. Canada (Minister of Citizenship and Immigration) 37 Imm. L.R. (2d) 76, and Chen v. Canada (M.E.I.) [1995] 1 S.C.R.
12 In Ping v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 53, at para.5, Jerome A.C.J. states:
"I find that the fact that the applicant possesses approximately $760,000.00 Canadian was considered by the officer in determining that the applicant had the necessary means to support herself for a period of time and that it could be indicative of the applicant's resourcefulness. However, the applicant has failed to demonstrate why the possession of this money, in and of itself, merits a higher score on the factor of personal suitability." In Syed v. Canada (Minister of Citizenship and Immigration) (1996) 35 Imm.L.R. (2d) 157, at para.11, Simpson J. states:
"It is fair to assume, absent a satisfactory explanation, that someone in the Applicant's circumstances, who has no assets, may well have a problem with motivation. In this case, an opportunity to explain the lack of assets was given but a satisfactory explanation was not forthcoming.
13 Zeng v. Canada (Minister of Employment and Citizenship) (1991), 12 Imm. L.R.(2d)
14 Ping v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 53 and Stefan v. Canada (Minister of Citizenship and Immigration) 35 Imm. L.R. (2d) 21, at para.5
15 Bastanfar v. Canada (Minister of Citizenship and Immigration) (1996) 35 Imm.L.R. (2d) 29
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4355-96
STYLE OF CAUSE: MOHAMMAD AHMAD v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: October 27, 1997
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE TEITELBAUM DATED: October 30, 1997
APPEARANCES:
Mr. Emile Jean Barakat FOR THE APPLICANT
Mr. Daniel Latulippe FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Emile Jean Barakat FOR THE APPLICANT Montreal, Quebec
Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada