Date: 20000824
Docket: IMM-2316-99
BETWEEN:
BHHARAT BUSHAN BHARDWAJ
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application is for judicial review of a decision of visa officer Victor Lum of the Canadian High Commission, Immigration Section, New Delhi (hereinafter "the visa officer") dated February 19, 1999, wherein the visa officer decided that the applicant did not meet the requirements under paragraph 19(2)(d) of the Immigration Act, R.S.C. 1976-77, ch. 52 (hereinafter "the Act"), for immigration to Canada.
[2] The applicant is a citizen of New Delhi, India.
[3] Over the years, he has submitted various applications for permanent residence in Canada.
[4] On October 11, 1996, the applicant filed an application for permanent residence through the Immigration Area Processing Center in Buffalo, New York, which was later transferred to New Delhi. Attached was a letter of employment from the Vishnu Hindu Temple Society offering the applicant a full-time position as a Hindu priest.
[5] On November 25, 1998, the applicant was interviewed with respect to his application for permanent residence in Canada by the visa officer in New Delhi. The application was refused by the visa officer on February 19, 1999.
[6] Based on the information provided in the applicant"s application form and at the interview, the applicant was assessed against the requirements for Priest CCDO code 2511-110 and was awarded a total of 61 units with regard to the selection criteria.
[7] The application was assessed with specific reference to the job offered to the applicant by the Vishnu Temple Hindu Society, which required the services of a qualified priest, who has in depth knowledge of Hindu scriptures and Hindu religious ceremonies.
[8] Upon conducting the interview, the visa officer found that the applicant did not have any directly related work experience and he determined that the applicant could not reasonably be expected to acquire within a reasonable time period the skills demanded for the proposed job.
[9] The application was also assessed under the National Occupational Classification (NOC) and General Occupations List (GOL) for the occupation of Minister (NOC 4154). The visa officer found that the applicant did not qualify under the revised assessment criteria in the intended occupation.
[10] Did the visa officer err in law or breach a principle of procedural fairness or natural justice in refusing the applicant"s application for permanent residence in Canada?
[11] The applicant submits that the standard of review in respect of a visa officer in determining whether or not an application meets the selection criteria is that of reasonableness simpliciter.
[12] The applicant contends that the occupational description Priest CCDO code 2511-110, against which he was assessed, is irrelevant as it refers only to religious workers in the Christian faith and does not directly relate to a Hindu priest. The applicant argues that it was unreasonable for the visa officer not to assess him in accordance with other CCDO descriptions relevant to his qualifications and intended occupation (particularly CCDO 2511-199 "Other Ministers of Religion" and CCDO 2519-1999 "Other Religious Workers", or pursuant to the new National Occupational Classification (NOC), NOC 4154 "Religious Workers" and NOC 4217 "Other Religious Occupations"). He alleges that the visa officer unreasonably fettered his discretion in relying solely upon these occupational descriptions. A review of the refusal letter clearly shows that the visa officer was applying an unreasonably high standard for the assessment of a religious worker. The officer failed to consider the nature of the position and the requirements of the particular religious congregation in assessing whether or not the applicant could fulfill the particular needs of the intended employer.
[13] The applicant further submits that he had a "legitimate expectation" that when his application for permanent residence was being assessed in accordance with the selection criteria under the Immigration Regulations, 1978, (hereinafter "the Regulations"), the visa officer could and would apply the policy with respect to religious personnel as found at s. 1.36 of ch. IS-1 of the Immigration Manual. In refusing the 1997 application, the visa officer in New Delhi provided no points for arranged employment, without explanation. According to the applicant, had he been assessed as "other religious personnel", he would have received a number of points sufficient to be granted an immigrant visa in accordance with paragraph 10(1)(b) of the Regulations, since he had an offer of employment from a religious organization.
[14] The respondent submits that: "when an application is an inland application and therefore the consequences are not so serious, the standard of review in respect of a visa officer in determining whether or not this application meets the selection criteria is patent unreasonableness".
[15] The respondent alleges that the visa officer considered the policy with respect to religious personnel as found at s. 1.36 ch. IS-1 of the Immigration Manual. The job offered to the applicant was mentioned in the visa officer"s CAIPS notes as well as in the refusal letter. Section 1.36 of ch. IS-1 of the Manual is a policy. The respondent argues that the policy is not a statutory provision that must be strictly adhered to by visa officers, which cannot be fettered in their discretion by receiving directives which do not have the force of law. According to the respondent, the applicant has not demonstrated that the visa officer failed to take into consideration the policy as set out in ch. IS-1 of the Manual or erred in his application of the policy. As for the question of legitimate expectation, the respondent contends it is moot since the applicant did not have the experience and depth of knowledge required for the posted position.
[16] According to the respondent, the applicant erroneously states that the visa officer failed to consider his qualifications in accordance with NOC-4154 "Ministers of Religion". The visa officer specifically stated in his refusal letter that the application was assessed for this occupation but that the applicant did not qualify. The applicant"s educational qualifications as a Hindu priest were accepted by the visa officer. The respondent is of the view that the case is solely about the determination by the visa officer that the applicant did not have the required knowledge of Hindu scriptures and Hindu ceremonies. Regarding the suitability of the applicant to fulfill the requirements of the intended occupation, the visa officer stated in his refusal letter that he was not satisfied that the applicant would be capable of satisfying the requirements of the position of priest offered to him. To come to the conclusion of no experience, the visa officer also made an assessment of the applicant"s credibility regarding having worked as a Hindu priest since completing the Vedic Shastri Foundation course. The respondent submits that it was open to the visa officer to make a negative assessment regarding the applicant"s credibility.
[17] The respondent also argues that despite the existing policy with respect to religious personnel in the Immigration Manual, the applicant must still overcome the statutory hurdle of satisfying the visa officer that he can perform the job offered. The respondent submits that the visa officer"s conclusion that the applicant has no work experience as either a priest or a minister of religion is supported by the evidence and was thus reasonably open to him.
[18] In To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No 696 (unedited), the Federal Court of Appeal held that the appropriate standard of review of the discretionary decisions of visa officers with respect to immigrant applications was the same as that enumerated in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, where MacIntyre, J., stated the following:
| "It is, as well, a clearly-established rule that the court should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. |
| Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere." (at pages 7 and 8) |
[19] This has been confirmed by the Court inTajammul v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 259. In light of the Supreme Court decision in Baker v. Canada (M.C.I.), [1999] 2 R.C.S. 817, it would seem that the standard of review should be reasonableness simpliciter.
[20] It was established, in Man v. M.E.I., T-2351-91, [1993] F.C.J. No. 36, that: "the visa officer must, pursuant to the law and to a duty of fairness, address not only the intended occupation indicated by the applicant, but also alternate occupations for which the applicant is qualified and to which the applicant"s experience may apply". The visa officer assessed the applicant under the alternate occupation: Minister (NOC 4154). The visa officer did not assess the Applicant under other alternate occupations. The applicant contends that it was unreasonable for the visa officer not to assess him in accordance with the CCDO descriptions that relate directly to the applicant"s qualifications and intended occupation, that of Hindu priest. Upon reading the refusal letter and the CAIPS notes, it appears that the applicant was effectively assessed with regard to the job offered to him, which required the services of a qualified priest, who has in depth knowledge of Hindu scriptures and Hindu religious ceremonies. The applicant"s lack of knowledge in these areas are laid bare in the interview notes. I find it reasonable that the visa officer did not feel compelled to assess the applicant under alternate occupations.
[21] I agree with the respondent that the visa officer"s conclusion that the applicant has no work experience as either a priest or a minister of religion is supported by the evidence and was thus reasonably open to him.
[22] In Baker, supra, L"Heureux-Dubé. J., held that:
| "In Canada [the doctrine of legitimate expectations] is part of the doctrine of fairness or natural justice, and that it does not create substantive rights. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness. Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded. Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain. This doctrine, as applied in Canada, is based on the principle that the "circumstances" affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights." (references omitted) |
[23] Was the visa officer compelled to follow the policy found at s. 1.36, ch. IS-1 of the Immigration manual, which dictates that if a person has an offer of employment from a religious organization, the applicant should receive ten (10) points in assessment, as equivalent to receiving ten (10) points for arranged employment?
[24] It is established that a visa officer must make his decision according to the law and he cannot be fettered in his discretion by receiving directives which do not have the force of law (Ho v. Canada (Minister of Employment and Immigration), [1990] 11 Imm. L.R. (2d) 12 (F.C.A.)). Section 1.36, ch. IS-1 of the Immigration Manual is a policy. The evidence in this case shows that the visa officer did consider the job offered to the applicant, but found that 1) the fact that the Vishnu Hindu Society has been waiting for his services for the last six years clearly shows that this has just been done for his accommodation and 2) that the applicant did not have any directly related work experience and that he could not reasonably be expected to acquire within a reasonable time period the skills demanded for the proposed job. In light of these facts, I believe it was not unreasonable for the visa officer to refuse to give the applicant the ten (10) points usually awarded for arranged employment.
[25] I believe it was reasonable for the visa officer to arrive at the conclusion that the applicant had no work experience as either a priest or a minister of religion and therefore refuse to award the points for arranged employment. He assessed the applicant"s application in good faith and according to the job offer presented and breached no principle of natural justice or procedural fairness while doing so. In my view, the decision is reasonable and the application should accordingly be dismissed.
[26] Further to the hearing at Vancouver on July 14, 2000, counsel for the applicant suggested that the following question be certified:
| Is it a breach of natural justice for a visa officer to fail to award 10 points, as the equivalent to arranged employment, for a proper job offer from a religious organization for a person to work as a religious worker in accordance with the public policy enunciated by the Immigration Department in IS 1.36, if the visa officer finds that the applicant has no experience as a religious worker? |
[27] I am satisfied that the matter does not raise a question of general importance. It is too specific to the facts of this case.
JUDGE
OTTAWA, Ontario
August 24, 2000