Date: 19990618
Docket: IMM-4255-98
BETWEEN:
DARYL ALEX FERNANDEZ
Applicant
-and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
A. INTRODUCTION
[1] These are the written reasons I said I would render following my dismissal, on May 26, 1999, of this judicial review application at the conclusion of oral argument.
[2] The applicant, Daryl Alex Fernandez, launched a judicial review application, pursuant to section 18.1 of the Federal Court Act, R.S. 1985, c. F-7, as amended, seeking to set aside the decision dated June 17, 1998 of Michel Dupuis, Foreign Service Officer ("FSO") at the Canadian High Commission in Islamabad, Pakistan, refusing the applicant's application for permanent residence in the independent category for the intended occupation of Executive Secretary.
B. THE FACTS
[3] The applicant is a citizen of Pakistan. On April 30, 1997, through an agent, he filed his application for permanent residence in Canada ("PRA"). His PRA listed his current occupation as Executive and his intended occupation as Executive Secretary.
[4] In terms of his work experience, the applicant's PRA indicates the following:
| (a) December 1990 to date, working for the Consul General of Italy in Karachi as an Executive; |
| (b) January 1991 to December 1994, working as an analyst programmer with Bliss & Company in Karachi; and |
| (c) February 1987 to November 1990 as an analyst programmer with Creative Computer Services in Karachi. |
[5] In terms of his post-secondary education, the applicant's PRA shows:
| (a) in 1988, a Bachelor of Science degree from Karachi University; |
| (b) in 1988, a diploma in French from Alliance Française de Karachi; |
| (c) from 1987 to 1993, a series of four-month courses from the Institute of Business Adminstration in Karachi leading to certificates in Principles of Management, Statistics and Mathematics for Management, Systems Analysis/Design and Business Communication; and |
| (d) in 1992, a certificate in German from the Goethe Institute in Karachi. |
[6] As substantiation of his work experience, the applicant produced with his PRA:
| (a) a letter dated July 20, 1993 from the Consul General of Italy in Karachi which reads as follows: |
| This is to certify that Mr. Daryl Alex FERNANDES, a local employee at this Consulate General, is presently working as an executive since 01 December 1990. |
| Taking into account his formal instruction of the Italian language obtained on our premisis[sic] and the requirement of this office for all personnel to be able to function equally well in all the departments of this Consulate General, he has worked in the Visa Section besides the Business and Cultural Affairs Section. |
| (b) a copy of a contract in Italian (not translated) dated December 27, 1994 between the applicant and the Italian Consulate General; |
| (c) a letter dated November 11, 1990 from Creative Computer Services, the material part which reads: |
| Upon joining this company he successfully completed his training period as a "Trainee Programmer" from 02-1987 to 08-1987 and thereafter served us in the capacity of a "Programmer" and later on as a "Programmer/Analyst". |
[7] The applicant, twice before, had sought permanent residence in Canada and had been refused by the Visa Section is Islamabad. The first refusal was in 1993 where his intended occupation was programmer-systems software (CCDO 2183-116), systems analyst business-electronic data-processing (CCDO 2183-110), programmer-business and computerized information processor (CCDO 4143-112). His second refusal was in 1994 when he was assessed in respect of the following occupations: computer programmer, executive secretary, interpreter and computer operator (data processor).
[8] On June 17, 1998, the applicant was sent a refusal letter from the FSO, the material part of which reads as follows:
| You were assessed based on the requirements for the following occupations: Executive Secretary (CCDO 4111-111) |
| Section 11(1) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of "experience in an occupation for which they are qualified and are prepared to follow in Canada", unless the immigrant has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience. According to your application, you have no formal training as an Executive Secretary. According to the CCDO you must have a vocational preparation factor of 7 which I do not see represented in your documents. An Executive Secretary must be able to carry out the duties of a clerical secretary as well as arranging conferences and meetings, researching and compiling information and acting on routine matters affecting the day to day operations of the organization in the employers[sic] absence. |
[9] The FSO's CAIPS notes for the applicant contain an entry dated June 17, 1998, which reads:
| I reviewed above notes and file. Applicant has no formal training (either vocational or educational) as a secretary, was previously refused as programmer, system analyst, computer operator, executive secretary, interpreter. Applicant refused. |
C. THE AFFIDAVITS ON JUDICIAL REVIEW
| (a) The applicant's affidavit |
[10] The applicant makes three points in his affidavit. First, he says that he has been working at the Italian Consulate as an Executive Secretary and there was a mistake in the Italian Consulate's letter of July 20, 1993. His occupation should have read "executive secretary" rather than "executive"; there was a typo. Second, the applicant says the FSO's refusal letter did not state that he was being refused for not having any experience in the occupation of executive secretary. The affiant says the refusal appears to be based on the FSO's perception that the applicant did not present evidence of formal training as an executive secretary. The applicant asserts he did present evidence of management training, systems analyst and design and business communication from the Institute of Business Administration, language training in both French and German, and a Bachelor of Science from Karachi University. Applicant asserts the FSO did not say why none of this training was not relevant to the duties of an executive secretary and he did not say what kind of training would have been relevant nor did he consider that his on-the-job training could have also been considered as part of training. Third, applicant says that before he received his refusal letter, he never received any correspondence from the FSO nor had any contact with him regarding any of the materials he filed. Applicant says, at all times, he was prepared to clarify any of the specific details of his employment or training which the visa officer would require.
(b) The FSO's response affidavit
[11] The FSO, in his response affidavit, also makes three points: first, the FSO says he asked a fellow employee at the Canadian High Commission who knew Italian what duties were provided for in the untranslated contract of December 27, 1994. The FSO says this written contract provides that the applicant is the "assistant to the Executive" and that the contract goes on and confirms the applicant is not an executive secretary there but he is a "secretary/typist" at the office; it describes his work as being general office work more related to the job of an office clerk. Second, the FSO rejects the applicant's opinion that he has some education useful for the purpose of carrying out the duties of an executive secretary. The FSO asserts the applicant has no formal training (either from a college or university or technical school or vocational training) and his contract does not mention any kind of on-the-job training. Third, in terms of experience, the FSO says the applicant did not demonstrate he had any experience as an executive secretary and that the applicant failed to provide sufficient evidence to demonstrate he has a minimum SVP required for executive secretary.
D. ANALYSIS
(a) Preliminary issue " the affidavits
[12] Neither affiant was cross-examined on their respective affidavits. I did not take into account part of paragraph 4 of the applicant's affidavit which mentions that his letter of reference from the Italian Consulate was wrong. This fact was not before the FSO and cannot be considered by me. See Lemiecha et al. v. M.E.I. (1993), 72 F.T.R. 49. Secondly, I did not take into account those portions of the FSO's affidavit where the FSO deposes to the information he received on what the untranslated contract meant. My reason for doing so is because it was not established when the FSO obtained that information . He could have obtained that information either before or after he sent the refusal letter. The onus was on the applicant to establish that the FSO obtained that information before his refusal letter had been sent. He did not do so.
(b) Duty to clarify a deficient application
[13] There is no duty on a visa officer to clarify a deficient application. See Dhillon v. Canada (Minister of Citizenship and Immigration), May 5, 1998, IMM-3098-97, per Rothstein J. (as he then was); Tahir v. Canada (Minister of Citizenship and Immigration), September 22, 1998, IMM-4956-97, per Tremblay-Lamer J.
[14] An applicant for permanent residence has the obligation to produce all relevant information which may assist in his application. See Hajariwala v. Canada, (Minister of Employment and Immigration), [1989] 2 F.C. 79, per Jerome A.C.J. and Wai v. Canada (Minister of Citizenship and Immigration), October 24, 1996, IMM-3418-95, per Heald D.J.
[15] In my view, this application for permanent residence was wholly deficient. His intended occupation was Executive Secretary, yet his application states his current occupation is that of an Executive and his previous experience that of an analyst programmer. He produced as his main letter of support a 1993 letter from the Italian Consulate which said he was an executive and which did not spell out in any way whatsoever what his duties were or what kind of on-the-job training he may have received. In terms of his formal training, at face value, it does not relate or provide any information speaking to the Specific Vocational Preparation requirements for the occupation of an Executive Secretary.
(c) The Specific Vocational Preparation (SVP) issue
[16] The applicant says the FSO was wrong in his calculation of the formal training requirement for Executive Secretary. The FSO in his affidavit said the CCDO indicated that a SVP of 7 is required for an Executive Secretary which is equivalent to 2 to 4 years training. Counsel for the applicant then directed my attention to the Schedule to the Regulations where under the Experience Factor it is said:
| When the amount of training required is more than six months up to and including one year, seven units. |
[17] The applicant equated an SVP of 7 with seven units of assessment. He was mistaken. Each occupation in the CCDO has a specific vocational preparation numerical assigned to that occupation. In the case of Executive Secretary, it is 7. Reference then must be made to Appendix B of the CCDO to determine how much professional, vocational, apprenticeship, in-plant or on-the-job training is assigned to that numerical. Appendix B of the CCDO says an SVP of 7 translates into having more than two years up to and including 4 years.
[18] It is only after training time is determined that reference can be made to the Schedule to award units. Simply put, the SVP is the factor that determines the amount of time of training required out of which flow units of assessment. The applicant confused the SVP with units of assessment.
E. CONCLUSION
[19] This judicial review application is dismissed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 18, 1999