Date: 20021112
Docket: IMM-5721-00
Neutral citation: 2002 FCT 1169
Ottawa, Ontario, this 12th day of November 2002
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
AHMED SHIBLEE NOMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), for judicial review pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision of Mr. Mick Chong, a visa officer at the Canadian High Commission in Singapore, dated September 20, 2000, whereby the applicant's application for permanent residence in Canada was refused.
THE BACKGROUND
[2] Ahmed Shiblee Noman currently lives in the city of Dhaka in the country of Bangladesh. He is 29 years old, and received a Bachelor of Science in Engineering from the Bangladesh University of Engineering Technology in 1997. Mr. Noman's brother lives in Toronto. Mr. Noman also plans to reside in Toronto.
[3] In April of 1999, Mr. Noman submitted an application for permanent residence in Canada to the Canadian High Commission in Singapore. His application was made pursuant to the Independent Selection Criteria for skilled workers, as a "Civil Engineer" (National Occupation Classification ("NOC") # 2131). Mr. Noman advises that he has worked as an engineer since September 1, 1997, first with The Challenger Enterprises and subsequently with Associates of Structural Engineers and Architects. He has experience using the latest engineering computer applications, which he says is a rarity in Bangladesh.
[4] Mr. Noman was interviewed by a visa officer on September 20, 1999. The interview lasted between 45 and 60 minutes. During that time, Mr. Noman's job qualifications were discussed extensively, but according to the visa officer's CAIPS notes, there was little conversation regarding personal suitability.
[5] The interview was never properly completed because of a misunderstanding between the visa officer and Mr. Noman. The visa officer asked Mr. Noman to wait in the reception area while he spoke with Mr. Noman's employer. Mr. Noman was under the impression that he was supposed to leave. Mr. Noman swears in his affidavit that he was in fact told to leave by a unknown High Commission employee. The visa officer intended to continue the interview after speaking with Mr. Noman's employer, but could not because Mr. Noman had already departed.
[6] The visa officer refused Mr. Noman's application for permanent residence in a letter received October 5, 1999. Mr. Noman seeks judicial review of this decision.
THE VISA OFFICER'S DECISION
[7] The visa officer refused Mr. Noman's application based on the fact that no points were awarded in the categories of "experience" and "occupational demand." Although Mr. Noman was employed by an engineering firm, the visa officer concluded that Mr. Noman did not perform enough of duties listed in the NOC for "Civil Engineer" in order to be considered a civil engineer. Officer Chong also noted that Mr. Noman was not "licenced" to approve design.
[8] There are 13 duties listed in the NOC for civil engineer. Mr. Noman was found to have performed four duties, those being;
a. Conferring with clients and other members of the engineering team and conduct research to determine project requirements;
b. Planning and designing major civil projects such as buildings, roads bridges, dams, water and waste management systems and structural steel fabrications;
c. Ensure construction plans meet guidelines and specifications of building codes and other regulations; and
d. Act as project or site supervisor for land survey or construction work.
[9] In the refusal letter he sent to the Applicant, the visa officer advised Mr. Noman that he was not satisfied Mr. Noman had;
"...accumulated the required minimum of one year's cumulative experience performing a substantial number of the main duties of your indicated intended occupation in Canada, as those are set forth in the NOC. This results in an award of 0 units of assessment under both the "experience" and "demand" factors for this evaluation pursuant to the NOC description. As indicated above, an award of 0 units of assessment under the demand or experience factors results in the refusal of your application, regardless of whether or not the total number of units of assessment you are awarded exceeds 65."
[10] Mr. Noman received 64 points overall.
[11] With respect to personal suitability, the visa officer awarded the Applicant five out of ten possible points. According to the refusal letter, this assessment was based on:
a. extent of preparations undertaken to educate himself re: general living conditions in Canada and labour market conditions in particular intended occupation;
b. efforts made to keep current with regard to developments in his occupational field;
c. transferability of skills to the Canadian labour market;
d. assets readily available for establishment in Canada;
e. number and ages of dependents and their capability to contribute to his successful establishment in Canada;
THE ISSUES
[12] Did the Visa Officer err in interpreting the NOC to mean the Applicant had to perform a "substantial number of the main duties" in order to receive any points in the categories of "experience" and "occupational demand?"
[13] Did the visa officer err in his assessment of the Applicant's personal suitability?
THE ARGUMENTS OF THE PARTIES
The Applicant's position
[14] A reviewable error is committed when a visa officer requires an applicant for permanent residence to perform all duties listed in the NOC in order to be considered in that particular job category. If the visa officer requires that an applicant for permanent residence perform all duties listed in the NOC for a civil engineer, he or she is essentially adding requirements and changing the applicable legal standard, thereby acting in excess of his jurisdiction (Chen v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 422 (F.C.T.D.) at para. 8. The result is that the decision of the visa officer should be set aside.
[15] It was submitted that although the NOC's are legally binding, they should not be meticulously construed. Their interpretation should be broad. (Hussain v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No 1570 (F.C.T.D.) at para. 27. In the case at bar, the visa officer took a very narrow, all-or-nothing approach.
[16] The Applicant argued that the visa officer failed to consider key pieces of information when he decided the Applicant did not have one year of experience as a civil engineer. The failure to consider important, relevant information is an error in law.
[17] The relevant information the Applicant alleges the visa officer failed to consider was the Canadian Council of Professional Engineer's approval of the Applicant's qualification, the Applicant's employment references, the Applicant's curriculum vitae, and the Applicant's verbal representations at the interview.
[18] It was submitted that the four duties the visa officer agreed the Applicant had performed were also not considered. Had they been considered, the Applicant would have been awarded at least one point in the experience category.
[19] It is further argued that there is no NOC specifically for the occupation "structural engineer." "Structural engineer" is a part of a group of occupations found under the main heading of "civil engineer". In these circumstances, the Applicant should be awarded some points in carrying out key duties of a civil engineer, even if he does not perform them all.
[20] With respect to the personal suitability assessment, it was submitted that the Applicant did not have the opportunity to discuss the steps he has taken in order to prepare to live in Canada during his interview. The visa officer did not make sufficient inquiries, and information was not requested upon which an assessment of personal suitability could be based, yet the visa officer still somehow made an assessment. The Applicant was also denied the opportunity to disabuse the visa officer of any concerns he might have about Mr. Noman's application for permanent residence. This constitutes a breach of the duty of fairness.
[21] The Applicant suggested that, had he been given the opportunity, he could have advised the visa officer about the research done and inquiries made about life and work in Canada. The Applicant could also have talked about his social connections and supports in place in Canada. The Applicant submits he could not advise the visa officer about his adaptability, motivation, initiative, resourcefulness and other similar qualities since the interview was not completed.
THE RESPONDENT'S POSITION
[22] The Respondent submits that the appropriate standard of review when reviewing the decision of a visa officer with respect to personal and professional qualifications of a prospective immigrant is that of patent unreasonableness. (Lim v. Canada (Minister of Employment and Immigration et al. 12 Imm. L.R. (2d) 161 (F.C.A.))
[23] It was argued that the visa officer did not err in concluding the Applicant did not have experience in his intended occupation, given that he was informed by the Applicant he did not have such experience during the interview. The Applicant confirmed he had only performed 4 of the 13 duties listed in the NOC for "civil engineer.".
[24] The Applicant is required to have performed " a substantial number of the main duties" as set out in the NOC. (Kanjibhai v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1922 (F.C.T.D.) The visa officer's conclusion that the Applicant did not perform a substantial number of the listed duties is not patently unreasonable, as he agreed he had only performed 4 of the 13 duties listed in the NOC.
[25] With respect to personal suitability, the Respondent submits that the visa officer was not obliged to assess the Applicant's personal suitability once it became clear that the Applicant could not obtain a visa in any event (Sidhu v. Minister of Citizenship and Immigration) [2000] F.C.J. No. 1220, (F.C.T.D.)
[26] Furthermore, the Respondent submits that even if the visa officer is required to assess the Applicant's personal suitability, the Applicant relieved the visa officer of this obligation when he left the interview early.
STANDARD OF REVIEW
[27] I agree with the Respondent that the appropriate standard of review with respect to the qualifications of the Applicant is patent unreasonableness. Mr. Noman's qualifications as a civil engineer, and his level of personal suitability to immigrate to Canada, are questions of fact. In Cai v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 55 (F.C.T.), it was held by Pinard J. that:
"It is well established that the onus is on the applicant to fully satisfy the visa officer of the existence of all of the positive ingredients in his or her application. Accordingly, provided that the visa officer does not act unfairly, and/or makes an error of law apparent on the face of the record in arriving at his or her decision (such as considering extraneous criteria not contained in the CCDO definition), that decision is entitled to a significant amount of curial deference (see Hajariwala v. Canada, [1989] 2 F.C. 79 (F.C.T.D.))."
[28] Additionally, I find that if a visa officer imports requirements not found in the NOC into the assessment of the qualifications of an applicant for permanent residence, a reviewable error in law has been committed.
[29] I am of the opinion that the application of the Applicant ought to be allowed. The visa officer made an error in law in assessing the Applicant's qualifications as an engineer as compared to the NOC guidelines.
[28] I rely upon a recent case decided by Kelen, J. In A'Bed v. Canada (Minister of Citizenship and Immigration) F.C.J. No. 1347 (F.C.T.D.), the visa officer decided that the applicant, who is a civil engineer, was not entitled to any units of assessment as a civil engineer because he worked as a construction manager, not as a civil engineer. The visa officer found that the applicant had performed four of the thirteen duties of a civil engineer, as is the case in this instance.
[29] In allowing the application for judicial review and sending the matter back for re-hearing by a different visa officer, Kelen J. observed at paras. 13-15:
"I am satisfied that the visa officer required the applicant to have performed a majority of the listed duties for a civil engineer. The officer erred in law by requiring the applicant to have performed a majority of the duties listed in the NOC to be assessed units for experience and occupation as a civil engineer.
Thirteen "main duties" are listed are in the NOC for civil engineers. However, the NOC states that "civil engineers perform some or all of the following duties". This explains that civil engineers do not necessarily perform every duty listed. The NOC specifically states that civil engineers perform "some or all of the duties". "Some" is defined in the Concise Oxford Dictionary (8th Edition) as "an unspecified amount or number", "a considerable amount or number", and "at least a small amount".
The language in Item 4(1)(b) of Schedule I contains general language which applies to all NOC occupations. This general language is modified by the specific language of the NOC with respect to civil engineers. The Latin maxim of statutory interpretation generalibus specialia derogant (special things derogate from general things) applies. The NOC description of a civil engineer specifically states that "civil engineers perform some or all of the following duties:", and then lists thirteen duties. This specific language qualifies the more general language so that "some or all" takes precedence and supersedes the general language "a substantial number of the main duties as set out in the NOC". "Some" means more than one."
[30] In this instance, the visa officer went through the 13 duties of a civil engineer with the Applicant, and found that the Applicant had performed four of them. The four duties are described by the Applicant as core duties. There is no indication the visa officer looked at the quality of duties he found the Applicant to have performed - rather, it appears that he looked at the quantity. The foregoing is supported by the argument of the Respondent, who states at paragraph 9 of the Respondent's Memorandum of Law and Argument:
"The Respondent submits that, on the basis that the Applicant only performed 4 out of the 13 duties listed in the NOC, the visa officer's conclusion that the Applicant did not perform all, or a substantial number of, the duties is not patently unreasonable."
[31] The visa officer also stated in his refusal letter to the Applicant:
"Based on the information you provided with your application and at your interview, you have not satisfied me that you have accumulated the required minimum of one year's cumulative experience performing a substantial number of the the main duties of your indicated intended occupation in Canada."
[32] The Applicant is not required to perform all of the duties listed in the NOC. He is required to perform some. Of course, this decision does not mean an Applicant must always be given points in this category whenever he or she can point to performing more than one duty required by the NOC, no matter how minor. In Farooqui v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 714 (F.C.T.D.), Dawson J. stated at paras. 14-15:
"I accept the submission of counsel for the respondent that the visa officer was entitled to give greater weight to certain duties contained in the NOC description and to conclude on a fair, broad, reading of the whole of the position description that an individual with experience in maintaining, installing and commissioning equipment and supervising a staff, including a staff of engineers and technicians, does not have experience in the occupation of electrical and electronics engineers.
As noted by Justice Reed in Wu v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 4, 1999 CarswellNat 43 "[t]he fact that not all duties in a CCDO description need be performed does not mean that the ability to perform some are not essential to an occupation".
[33] In my opinion, the decision of the visa officer does not give us any explanation as to what is "substantial" and "not substantial". No reasons are given as to why the four duties are so insubstantial they do not merit a single point. In Moneim v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1977 (F.C.T.D.), Tremblay-Lamer J. noted, "Although I recognize that it is entirely within the mandate of the visa officer to give greater weight to certain duties, it is unreasonable, in my opinion, to give zero unit of assessment for experience to an accountant who has performed some of the key duties for at least two years." In Bhutto v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1411 (F.C.T.D.) Sharlow J. (as she was then) stated at para. 8;
In this case the visa officer did not recognize any of Mr. Bhutto's experience in mechanical engineering because it did not involve research, design, cost and time estimates, contracts or tenders. The officer thought that experience in those aspects of mechanical engineering was compulsory. However, there is nothing in the language of the NOC category for mechanical engineers that justifies the officer's interpretation.
[34] A second difficulty with Visa Officer Chong's decision is the matter of final design approval. In his letter refusing Mr. Noman's application for permanent residency, Officer Chong states:
"I advised you of my concerns after we reviewed the main duties as listed in the NOC. Specifically that you have not performed a substantial part of the duties of a civil engineer as defined in NOC. You confirmed that you had not done these duties as you were not "licenced" to approve design. I considered all the information and your employment experience before my final decision to refuse your application."
[35] I can find nothing written in the NOC for "civil engineer" requiring the Applicant to be licenced to approve design before he or she can be considered an engineer. According to the Applicant, an engineer must work for three years and be a full member of the Institute of Engineers Bangladesh, before he or she is allowed to give final approval on designs. Otherwise, the designs of an engineer with less than three years experience (these engineers are considered associate members of the IEB) must be approved by a full member. The visa officer did not inform the Applicant that he was not going to be considered an engineer because he was not a full member of the IEB at the time of his interview.
[36] In my opinion, the visa officer imported a new requirement into the NOC for "civil engineer", thereby acting in excess of his jurisdiction. According to Haughton v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 421 at para. 12:
"The wording of the Visa Officer's decision indicates that the criteria outside of the CCDO which were considered were dominant in his decision. The skills he considered were not unreasonable in that they probably are skills required in the contemporary Canadian office environment. However, the Visa Officer is bound by the CCDO definitions. While it may be that there is a problem with outdated definitions provided in the CCDO, a Visa Officer is nonetheless not permitted to substitute his/her own criteria for a given occupation. Under the scheme of the Immigration Act and Regulations, that is for Parliament or the Governor in Council to address."
[37] In Pang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 868, the visa officer did not assess the applicant's work experience from 1987 to 1991 because the applicant was not registered as a professional engineer in China. This was because the Applicant had not completed the required 5 years of work experience. Blanchard J. stated:
"In my view, the visa officer did not assess the applicant's experience in accordance with the NOC. Rather than asking if the applicant is registered as an engineer, the visa officer should have asked whether the applicant has experience performing the duties of a mechanical engineer as outlined in the NOC. The visa officer committed an error by not assessing the applicant's experience from 1987 to 1991 in accordance with the NOC."
[38] Insofar as personal suitability is concerned, I note that the visa officer in his affidavit at paragraph 17 j), said:
"However, the applicant could not be found. That said, having determined that the applicant lacked experience in his chosen occupation, it was unnecessary for me to consider his personal suitability as it would not have resulted in him receiving a visa."
[39] In addition, the visa officer's notes of the interview dated September 20, 2000, do not advise that personal suitability assessment is uneccessary. The notes are completely silent on the matter.
[40] Despite the fact that the interview was not completed, and a personal suitability assessment was supposedly not needed because the Applicant had already been found ineligible, the visa officer completed the personal suitability assessment section in his refusal letter dated September 20, 2000. The Applicant was awarded five points out of ten. This assessment was finalized without input from Mr. Noman subsequent to the aborted interview.
[41] In my opinion, there is question whether or not a personal suitability assessment was ever done. Furthermore, the fact that the interview could not completed, thereby denying Mr. Noman the opportunity to provide input and explanations about his personal suitability, casts a shadow over the assessment, even if it was done. Clarity and transparency in making such assessments are necessary to insure the reasonableness of the process. I find that the assessment made by the visa officer with respect to personal suitability was not fairly done, and such the Court's intervention is warranted.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review is allowed and the decision rendered by the visa officer dated September 20, 2000 is set aside and the matter is returned to another visa officer for redetermination.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5721-00
STYLE OF CAUSE : AHMED SHIBLEE NOMAN and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : October 31st, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE SIMON NOËL
APPEARANCES:
Mr. Brian Lazanik FOR THE APPLICANT
Mr. Greg G. George FOR THE RESPONDENT
SOLICITORS OF RECORD:
Janet L. Bomza & Associates FOR THE APPLICANT
Toronto, Ontario
Department of Justice FOR THE RESPONDENT
Toronto, Ontario