Date: 20010816
Docket: IMM-128-01
Neutral citation: 2001 FCT 899
BETWEEN:
AMADO PERADA ALAMAG
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
A. Background
[1] Amado Perada Alamag (the applicant), a citizen of the Philippines, made an application for permanent residence in Canada on July 29, 1998 in the independent category stating his intended occupation in Canada was "Chemical Engineer, Casino Pit Boss or any casino job".
[2] He was screened with 67 units as a technical sales specialist, interviewed on October 19th, 2000 where he obtained another 4 units on account of personal suitability for a total of 71, thus clearing the hurdle of 70 units.
[3] However, his application was refused through the negative exercise of discretion provided for in paragraph 11 (3) (b) of the Immigration Regulations which reads:
(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa who is awarded the number of units of assessment required by section 9 or 10,
If, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
[4] The visa officer's refusal letter is dated December 5th, 2000 and reads in part:
You have accumulated a sufficient number of units to qualify for migration to Canada. Nonetheless, 11 (3) (b) of the Immigration Regulations allow me, with the approval of a Senior Immigration Officer, to refuse the issuance of an immigrant visa if I am in the opinion that the number of assessment units awarded does not reflect your chances of becoming successfully established in Canada. In your IMM8 and during the interview, you indicated that your sole intention is to work as a casino supervisor. This occupation has no demand in Canada. This factor combined with the very low cash funds (C$ 250) available to support a family of five in Canada leads me to believe that you will not be able to successfully establish in Canada. I discussed these reasons with you and the approval of a Senior Immigration Officer was sought and obtained.
Your spouse was assessed as an Office Manager (NOC 1221). However, your application could not be approved on this basis because the Occupational Factor for this occupation, both now and at the time of submission of your application, was zero.
[5] The visa officer, who interviewed the applicant, recommended refusal because he felt that the units allocated to him do not truly reflect his real chances of establishing himself in Canada. His CAIPS notes reflect the following reasons for this view:
PA has indicated he only wants to work as a Casino Pit Boss, an occupation for which there is no demand in Canada. PA's current age (48) makes it highly unlikely he would find a job on the Canadian Labour Market, especially as he indicated his only intention is to seek employment in an occupation not in demand in Canada. His low cash assets, $250.00 equivalent at the time of his interview, are also another impediment to his successful establishment in Canada despite the fact that he has relatives in Canada. There are five persons in his household. PA's wife employment is also in areas for which there is no occupational demand.
B. The issues
[6] Counsel for the applicant relies heavily on the Federal Court of Appeal's decision in Sadeghi v. Canada (Minister of Citizenship and Immigration) [2000] 4 F.C. 337. He says the visa officer failed to account for the applicant's real property valued at $70,967.74 which was listed in the applicant's net worth statement of $44,599.15 after accounting for liabilities. Counsel argues the visa officer's duty of fairness was greater than normal: he should have inquired into this aspect of his assets - required the documentary proof he felt was missing.
[7] Counsel for the applicant relies on the Hoballahi v. Canada (Minister of Citizenship and Immigration 37 Imm. L.R. (2d) 98 for the proposition that the applicant's Canadian relatives had offered to help in his settlement and establishment in Canada and this was ignored by the visa officer.
[8] He relies on Sadeghi, supra for the proposition that paragraph 11 (3) (b) does not vest visa officers with a general discretion to revisit their assessment under the specific selection criteria.
[9] Finally, counsel for the applicant says the visa officer did not take into account a relevant consideration to demonstrate his adaptability and thus his potential to successfully establish himself - the fact he found a position as a Product Sales Engineer between 1988 and 1992 after the casino he was working failed. On the other hand, he argues the visa officer took into account an irrelevant consideration - his age - in exercising his judgment about the applicant's potential for successful establishment in Canada.
C. Analysis
[10] The applicant and the visa officer filed affidavits in this judicial review. There were no cross-examinations.
[11] What transpired during the interview was the central feature of the visa officer's affidavit. He said:
(a)the applicant told him it was his intention to work as a Casino Supervisor in Canada and that he was not interested in working as a Technical Sales Representative or as an Engineer.
(b) he raised with the applicant his concerns about the adequacy of the amount of resettlement funds for a family of five. The applicant's response according to the visa officer was that he would get a job as a Casino Pit Boss, his father would help and he had a house worth $70,000 but provided no appraisal or evidence of ownership at the interview.
(c) he disputed the applicant's version of the applicant's affidavit that the applicant had informed him of having the equivalent of $50,000 in cash. He said the applicant's version was pure fantasy. The visa officer reiterated he pressed him for ownership or appraisal documents at the interview but the applicant could not provide any.
[12] The applicant did not contradict the visa officer's version of what happened at the interview in terms of his intention to work as a Casino Pit Boss and his unwillingness to hold any other occupation. He did challenge the visa officer's version of the facts concerning the real property and the extent of family support in Canada being limited to his parents.
[13] The applicant relied on Sadeghi, supra. Counsel for the Respondent invited me to examine the factual context of that case which was very different than what took place in this case.
[14] In Sadeghi, supra, as in this case, the visa officer overrode the units awarded under the selection criteria through the exercise of negative discretion conferred under paragraph 11 (3) (b) of the Regulations. Dr. Sadeghi had been awarded 72 points.
[15] The issue in Sadeghi was one related to the duty of fairness. Justice Evans framed the issue there in the following terms:
Was it a breach of the duty of fairness for the visa officer, when exercising her discretion under paragraph 11 (3) (b), to take into consideration the appellant's limited knowledge of employment conditions in Canada, "lack of professional contacts in Canada" and "lack of preparedness to go to Canada" as indicative of his inability of his inability to establish himself successfully in Canada, even though she had not expressly raised these concerns with him so that he could respond?
[16] Justice Evans, building on the analysis of Strayer, J., as he then was, in Chen v. Canada (Minister of Employment and Immigration) [1991] 3 F.C. 350 adopted by the Supreme Court of Canada in the same case [1995] 1 S.C.R. 725, stated paragraph 11 (3) (b) is an extraordinary power intended for exceptional cases and:
...does not provide visa officers with a general discretion to revisit their assessment under the specific selection criteria or to support a view that the applicant does not in some way quite "measure up": see Chen, supra, [1991] 1 F.C. 350 (T.D.), at page 363. The important statutory purpose served by the requirement that independent applicants for permanent residence visas be assessed in accordance with the prescribed statutory selection criteria is to ensure a certain objectivity and uniformity in decision-making by visa officers.
[17] He added this:
¶ 17 In order to ensure that visa officers base their opinion that there are good reasons for thinking that the points evaluation does not adequately reflect an applicant's chances of becoming successfully established in Canada, it is important that they raise their concerns with the individual in a way that enables her or him to respond, at least when they are of the kind on which the applicant may be able to shed some useful light. Accurate decision-making is particularly important when an adverse decision may deprive a person of her legal rights or, as here, a legitimate expectation of receiving a statutory benefit.
¶ 18 The burden normally borne by visa applicants to put their "best foot forward" by placing before the visa officer all the information necessary to demonstrate that they satisfy the selection criteria reduces the obligation of visa officers to advise applicants, as a matter of procedural fairness, of whatever concerns they may have about the adequacy of the application. However, once an applicant has been awarded the units of assessment normally required for a visa by persons applying in the relevant category, it will often be unfair to expect the applicant to anticipate the grounds on which a visa officer may base a negative discretionary decision.
[18] Justice Evans in Sadeghi, supra, concluded the visa officer breached procedural fairness because he did not explicitly ask at the interview certain questions relating to his professional contacts in Canada before using that to deny him the visa he had prima facie qualified under the points system. He found similar fairness concerns existed with the visa officer's relevance on Dr. Sadeghi's lack of preparedness to come to Canada and his limited knowledge of employment conditions in Canada as reasons for the negative exercise because "these were not matters that were put to him at the interview, either expressly or implicitly.
D. Conclusions
[19] It is readily apparent from a reading of the visa officer's affidavit that the dominant feature underlying Mr. Alamag's permanent residence application is what happened during his interview and what he said there to the visa officer about his intention to seek work in an occupation for which there was no occupational demand and in no other. This constituted a major departure from what had been expressed as his intended occupation which had included Chemical Engineer or Technical Sales Representative in which he had experience in the Philippines. What happened during the interview supplies the context against which the exercise by the visa officer of his negative discretion is gauged.
[20] The Immigration Regulations supply the other context. Two provisions are relevant:
(a) First, factor 4, the occupational factor, provides for units of assessment in the occupation "that the applicant is prepared to follow in Canada". As noted, he was only prepared to follow one occupation, that of Casino Supervisor.
(b) Second, subsection 11 (2) precludes in this case the issuance of a visa unless at least one unit is awarded under the Occupation factor whose operation is premised on there being employment opportunities in Canada in the chosen occupation. Here, there were no employment opportunities because the occupational demand was zero.
[21] In my view this application for judicial review must be dismissed for the following reasons.
[22] First, the visa officer did not as submitted by the applicant seek to correct a mistake in the assessment he made of the applicant in the designated occupation of Technical Sales Representative. He properly assessed the applicant in that occupation but could not give approval of the application for permanent residence because he was not prepared to follow it in Canada (see Immigration Regulations, Schedule I, Factor 4 (1) (c).
[23] Second, it is clear the visa officer raised the issue of the resettlement funds, expressed his concern at the interview and pressed him for documentation. This satisfies the Sadeghi test for fairness.
[24] Further, I am satisfied any proof of his property assets submitted by the applicant was after the decision to refuse his application (see applicant's record p. 10) and cannot be taken into account (see, Zheng v. Canada (M.C.I.), [2001] F.C.J. No. 110.
[25] Third, I am satisfied examining the CAIPS notes and the visa officer's affidavit that he appreciated the applicant's family support extended beyond his parents. He weighed those facts against the applicant's family of five and his limited assets. His finding was not unreasonable.
[26] The applicant argued the visa officer erred in assessing the applicant's adaptability, his age and his lack of Canadian experience because he did not put his concerns to the applicant on those points. Even if I accepted the applicant's argument that these concerns were not put to the applicant, I would not intervene because they were tangential to the central feature of this case - his declared intention to work only as a Casino Supervisor.
[27] For all of these reasons, this judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
JUDGE
Calgary, Alberta
August 16, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010816
Docket: IMM-128-01
BETWEEN:
AMADO PERADA ALAMAG
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-128-01
STYLE OF CAUSE: Amado Perada Alamag v. MCI
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: August 14, 2001
REASONS FOR ORDER OF LEMIEUX, J.
APPEARANCES:
Mr. Richard M. Tumanon FOR APPLICANT
Ms. Tracy King FOR RESPONDENT
SOLICITORS OF RECORD:
Richard T. Tumanon
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
Date: 20010816
Docket: IMM-128-01
CALGARY, Alberta, Thursday, the 16th day of August, 2001.
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
AMADO PERADA ALAMAG
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
For reasons filed this judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
JUDGE