Date: 20020708
Docket: IMM-3569-00
Neutral citation: 2002 FCT 752
BETWEEN:
MARLON ATANGAN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] In May, 1998 the applicant, a citizen of the Phillipines, applied for permanent residence in Canada in the independent category. He applied in four intended occupations namely, personnel officer, personnel clerk, psychometrician and computer operator. He was interviewed at the Canadian Embassy in Manila on May 4, 2000 and by correspondence dated May 25, 2000 his application was denied. He seeks judicial review of the visa officer's decision and requests that it be quashed and referred back for redetermination in accordance with the provisions of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The refusal letter dated May 25, 2000 states:
You were assessed in the occupation: Administrative Clerk, NOC 1441.0 with reference to the National Occupation Classification (NOC) which sets out the applicable employment requirements for Canada, and the main duties for each occupation.
You were also assessed in the following occupations: Personnel Officer, NOC 1223.0. Your application could not be approved on this basis because I am not satisfied that you meet the employment requirements for Canada, or have performed a substantial number of the main duties, as set out in the NOC.
[3] The visa officer awarded 65 units of assessment in the occupation "administrative clerk" thereby leaving the applicant 5 units short of the minimum 70 units required for qualification for immigration. It is the visa officer's assessment of the occupation "personnel officer" that is the subject of this judicial review.
[4] The applicant, from 1984 to 1989, worked as a freelance agent for travel agencies. From 1989 until 1996, he was employed by Employment Apprenticeship Research Network (EARN), a private school that employed between 15 to 20 people and offered computer, secretarial, fashion, cosmetology, dressmaking, automotive, mechanical refrigeration and air-conditioning courses to students numbering from 300 to 500. In September, 1996 the applicant started his own business, Atangan Garment, which engaged in the manufacture of ready-to-wear apparel and employed 15 to 20 people. The applicant was responsible for all aspects of the operation but sold his shares in anticipation of his immigration to Canada. At the time of his interview, the applicant says that he had started another business, Vidicom Electronics, which engaged in the repair of electrical appliances. The visa officer, in his affidavit, states that the applicant informed him that he was enrolled in a live-in caregiver program. Nothing turns on this latter discrepancy since neither role is alleged to impact on the assessment that is the subject of these proceedings.
[5] The applicant alleged various grounds for judicial review in his written submission but abandoned all but two at the hearing. The grounds argued were that the visa officer erred in determining that the applicant did not perform a substantial number of duties under the intended occupation "personnel officer" and that he breached the duty of fairness in failing to properly question the applicant on the range of duties required for the occupation.
[6] With respect to the first ground, the applicant submits that the visa officer ignored the certificate from his former employer EARN describing his employment duties as well as his own written work history. These documents are not referred to in the officer's CAIPS (Computer Assisted Immigration Processing System) notes nor in the refusal letter. The applicant argues that this evidence established that the applicant performed 6 out of 8 duties described in the NOC with respect to a "personnel officer".
[7] The respondent states that the visa officer did not ignore the documents. Rather, as stated in his affidavit, he gave them little or no weight, preferring instead to rely on the applicant's description of his employment as stated in the interview.
[8] The second ground arises from the first. In his affidavit, the visa officer deposes that he attached little or no weight to the EARN certificate of employment because it was dated two years after the applicant ceased employment with EARN and only two days before the interview. The officer suspected that the document had been tailored for the purposes of immigration. The visa officer also stated that he found the applicant's monthly salary relatively low, by Phillipine standards, for the occupation of "personnel officer" and found it to be more in line with the position of a "personnel clerk". Neither of these issues were explored in the interview and the applicant submits that by failing to raise them with the applicant, the visa officer breached the duty of fairness. Moreover, says the applicant, the purpose of the interview was not explained to him nor were the factors required by the visa officer delineated.
[9] The respondent submits that the onus was on the applicant to satisfy the visa officer of the existence of all information pertinent to the application. The visa officer is not required to go on a "fishing expedition". The purpose of the interview, argues the respondent, is to gain admission to Canada and is self-evident. Here, the visa officer informed the applicant that it appeared that he lacked the level of responsibility of a "personnel officer" and the applicant agreed. The visa officer, in the respondent's submissions, is entitled to weigh the evidence and he put more weight on the applicant's description of his employment duties.
[10] The applicant does not dispute that it is his responsibility to satisfy the visa officer that he meets the criteria for admission to Canada nor does he dispute that he must also have performed a substantial number of the NOC requirements to fall within the definition of the intended occupation. Here, the visa officer deposes, in his affidavit, that he attached little weight to the certificate of employment for the reasons referred to earlier. Rather, he relied upon the evidence of employment duties provided by the applicant during the interview. Similarly, although he found the applicant's income low, this was not a factor he considered in concluding that the applicant did not perform a substantial number of the duties of the occupation "personnel officer".
[11] In Malik v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1050 (T.D.). Reed, J. stated: "It was not an error then for the visa officer who conducted the interview to have relied on the information gleaned from the applicant at that interview without any express reference being made to the reference letter". While this authority is helpful, it is not determinative because in Malik, the CAIPS notes included a notation regarding the reference letter whereas here, they do not.
[12] The hurdle which confronts the applicant is the certificate of employment. Having carefully considered the contents of the document, exclusive of the applicant's statements at the interview, I cannot say that the visa officer's conclusion that the applicant performed 2 out of 8 of the duties of a "personnel officer" was unreasonable. I find nothing in the certificate that supports the applicant's submissions that he performed 6 of the 8 duties listed in the NOC.
[13] The applicant's position is further compounded by his own description of his employment duties made during the interview and most importantly, by the visa officer's sworn evidence that the applicant agreed that his employment duties were those of a "personnel clerk" rather than a "personnel officer". That evidence is not contradicted by the applicant.
[14] While it would have been preferable for the visa officer to have addressed the certificate of employment and the level of income with the applicant, the officer did not attach any weight to either factor and did not rely on either in arriving at his decision. He relied on the representations of the applicant. Had the certificate of employment contained specific information contradictory to that provided by the applicant, the situation may have been otherwise. That, however, was not the case and therefore the visa officer had no obligation in this regard.
[15] The decision of the visa officer, on the evidence before him, was reasonably open to him. The application for judicial review is dismissed.
[16] Counsel did not suggest a question for certification therefore no question is certified pursuant to section 83(1) of the Immigration Act.
____________________________________
Judge
Ottawa, Ontario
July 8, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3569-00
STYLE OF CAUSE: MARLON ATANGAN v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 19, 2002
REASONS FOR ORDER of The Honourable Madam Justice Layden-Stevenson
APPEARANCES:
Cecil L. Rotenberg FOR THE APPLICANT
Mielka Visnic FOR THE RESPONDENT
SOLICITORS OF RECORD:
Cecil L. Rotenberg FOR THE APPLICANT
Barrister & Solicitor
Don Mills, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada