Date: 19980414
Docket: IMM-2222-97
BETWEEN:
MARGARET MARY BRAGANZA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] This is an application for judicial review pursuant to section 82.1(2) of the Immigration Act, R.S.C. 1985, c. I-2, of a decision of a visa officer (B032994323) dated February 11, 1997 and communicated to the applicant on May 5, 1997 in which the applicant's application for permanent residence was denied.
[2] The applicant seeks an order quashing the decision and asks that the matter be remitted back to a different visa officer for reconsideration.
[3] On December 5, 1995, the applicant submitted an application for permanent residence seeking entry as a student activities advisor (CCDO 2339-114). The applicant graduated from the University of Calcutta in 1984 and holds a certificate in teacher's training. Upon completion of her studies, the applicant worked at the Calcutta School of Music as a music teacher. In addition to her work at the School of Music, the applicant worked at the Loreto Day School in Calcutta as an activities co-ordinator, from 1981 until 1992. There, she was required to co-ordinate special assemblies, cultural events, cultural events and extra-curricular activities. In 1992, the applicant left India to work in the United Arab Emirates at the Modern High School as a teacher, music conductor and student activities advisor. At the Modern High School, the applicant works as a teacher, a music conductor and a student activities advisor.
[4] On January 23, 1996, the application was paper screened. In the initial assessment of the applicant's application, the applicant was awarded 69 points, including 6 points for the experience factor.
[5] The applicant was called in for an interview, which took place on March 12, 1996. During the interview, the visa officer, Michael MacKenzie, determined that, while the applicant was an experienced teacher, she did not meet the requirements of the CCDO job description for "Student Activities Advisor". "Student Activities Advisor" is defined in the CCDO as follows:
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Plans and arranges social, cultural and recreational activities of various student groups, according to institutional policies and regulations. |
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Meets with student and faculty groups to plan activities. Evaluates programs and suggests modifications. Schedules events to prevent overlapping and co-ordinates activities with sports and other institutional programs. Contacts caterers, entertainers, decorators and others to arrange for scheduled events. Participates in orientation program for freshmen. Advises student groups on financial status of, and methods for improving their organizations. Promotes student participation in social, cultural and recreational activities. Prepares and publishes calendar of student affairs. Provides, on request, individual or group counselling on selection of social activities and use of leisure time. |
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[6] The visa officer requested complete job descriptions from her previous employer and from her current employer. While the applicant agreed to provide a job description from her previous employer, she did not want her present employer to know that she was seeking admission to Canada, as it might jeopardize her employment in Dubai.
[7] On May 16, 1996, the visa officer received the job description from Loreto Day School. The visa officer reviewed the letter but determined that the applicant did not meet the definition of a Student Activities Advisor as contained in the CCDO. At paragraph 17 of the visa officer's affidavit (page 4 Respondent's Record), he writes:
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On May 16, 1996, I received the requested job description from Loreto Day School submitted by Inter-Connections Canada Inc. On May 17, 1997 [sic] I reviewed the Loreto Day School job description carefully. I determined that it did not substantiate the Applicant's claim to meet the requirements of a "Student Activities Advisor". There was no mention in the job description of key elements of the CCDO description such as: "Participates in orientation program for freshmen", "Advises student groups on financial status of, and methods for improving their organizations", "Prepares and publishes calendar of student affairs". Thus, on balance, I determined that the applicant did not meet the requirements of her intended occupation in Canada. |
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[8] Despite the fact that the visa officer determined that the applicant did not meet the definition of Student Activities Advisor, he decided not to issue the refusal letter immediately, as he was awaiting the outcome of a decision of the Trial Division Jetha v. Minister of Citizenship and Immigration, IMM-1049-96, October 3, 1996, as that case involved a teacher seeking entry to Canada as a student activities officer.
[9] In June, 1996, the visa officer left Colombo, and has had no further dealings with the file except to swear an affidavit for the judicial review proceedings.
[10] The Jetha case was dismissed on October 3, 1996 by Madam Justice McGillis. A different visa officer, Alain Gingras, reviewed the applicant's file and was satisfied that the intention of the first visa officer was to refuse the applicant entry into Canada based on the fact that the applicant was really, merely a teacher attempting to enter Canada as an Activities Advisor, as he had decided previously in the Jetha case. Based on this reasoning, visa officer Gingras prepared the refusal letter on January 21, 1997. The letter was signed on February 11, 1997 and mailed out to the applicant on April 21, 1997. The relevant portion of the letter reads as follows (pages 49 and 50, AR):
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This assessment is completed from the notes entered on the computer system by the visa officer at the time of the interview. You were assessed in the occupation of "Student Activities Advisor", (CCDO 2339-114) for which you earned the following units of assessment: |
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Specific Vocational Preparation 11 |
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You were awarded 0 units for the experience factor as your duties, described during the interview and in your reference letter, did not match, on the whole, those described under 2339-114 of the CCDO. The interviewing officer believed that your duties are better described under Elementary School Teacher, General (CCDO 2731-110), an occupation with no demand. |
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[11] Based on this refusal, the applicant raises the following issues in this application for judicial review:
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1. Whether the visa officer erred in law in finding that the applicant was not a Student Activities Advisor because the applicant's work duties did not mention the "key elements" of the CCDO description, as asserted by the visa officer; |
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2. Whether there was a breach of procedural fairness since the visa officer who rendered the decision did not interview the applicant; and |
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3. Whether the respondent's delay in mailing the decision irreparably prejudiced the applicant's right as the CCDO (now the National Occupational Classification) no longer contains the applicant's intended occupation, Student Activities Advisor. |
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1. Error of Law: Strict Adherence to the CCDO Definition
[12] The applicant's primary argument is that the visa officer erred determining that she did not meet the definition of "Student Activities Advisor" as contained in the CCDO. Counsel for the applicant asserts that the visa officer "pigeon-holed" the applicant by relying upon the decision in Jetha simply because of the similar fact situation without independently assessing the applicant's qualifications. This, in the applicant's opinion, is demonstrated by the fact that the visa officer, Michael MacKenzie stated in his affidavit that the applicant did not satisfy all of the job requirements, in totality. Specifically, Michael MacKenzie, in his affidavit states that:
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Although it appeared to me that she performed some of the duties such as "Schedules events to prevent overlapping and co-ordinates activities with sports and other institutional programs" and "Contact caterers, entertainers and others to arrange for scheduled events" there were not sufficient to satisfy the job description in totality. There was no reference made by the applicant to conducting activities with respect to student groups or clubs. I do not believe that the documentation supplied substantiated that Ms. Braganza met the requirements of "Student Activities Advisor". |
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He later added:
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There was no mention in the job description of key elements of the CCDO description such as: "Participates in orientation program for freshmen", "Advises student groups on financial status of, and methods for improving their organizations", "Prepares and publishes calendar of student affairs". Thus, on balance, I determined that the applicant did not meet the requirements of her intended occupation in Canada. |
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The applicant argues that this demonstrates a "slavish" adherence to the definition contained in the CCDO. In support, the applicant relies upon Muntean v. Canada, (1995), 103 F.T.R. 12, where Mr. Justice Cullen made the following comment at page 16:
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I agree with the applicant that job descriptions in the CCDO should be broadly construed and that an applicant need not perform all of the tasks in the description to qualify in a particular occupational category. If a visa officer mechanically adhered to the CCDO descriptions and demanded that an applicant has performed each job duty, it could be said that the visa officer would be fettering his or her discretion. |
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[13] In Muntean, Mr. Justice Cullen held that the visa officer did not err in assessing that applicant as a motor vehicle mechanic despite the fact that the applicant had the academic qualifications of an engineer. In Nunes v. Minister of Citizenship and Immigration, IMM-2749-96, April 9, 1997, Mr. Justice McKeown cited Muntean with approval. That case, however, dealt with the issue of whether a visa officer is required to assess an applicant in his chosen category of employment. There, the visa officer failed to assess the applicant in his intended occupation, as an administrative officer, due to the visa officer's mistaken belief that the work experience of the applicant was limited to clerical duties. Accordingly, the visa officer assessed him as general office clerk. In allowing the application, Mr. Justice McKeown cited Muntean to concur that a visa officer needs not strictly to adhere to the occupational definition contained in the CCDO.
[14] On this issue, the applicant also argues that the visa officer did not take into account the fact that the applicant performed the principal functions of a Student Activities Advisor. The applicant points to the letter provided by the Loreto Day School to demonstrate that essential functions of a student activities advisor were met. (Pages 35 to 37, Application Record).
[15] The respondent argues that it is not the role of a reviewing judge to dissect the components of the applicant's experience and compare them with the CCDO definition. The respondent relies on Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 1 where Mr. Justice McIntyre stated at pages 7 to 8:
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It is, as well, a clearly-established rule that the courts 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 same 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. |
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[16] While the respondent's statement certainly represents the legal test a reviewing judge is required to follow, this does not amount to a prohibition to review the manner in which a discretion is exercised. From Muntean what is demanded of a visa officer is to conduct an assessment to determine whether the applicant performed the substantial requirements of the position in order to be able to conclude on a balance of the evidence that the applicant can be classified into that job position. In the case at bar, it appears that this assessment has not been fulfilled. From his affidavit, it appears that the visa officer was mechanically applying the definition without assessing the applicant's qualifications. In addition, by waiting for the outcome of the Jetha decision, a decision involving a school teacher seeking admission to Canada as a student activities advisor, the visa officer seems to have assumed that all individuals with a teaching component to their job are ineligible for entry to Canada as a student activities advisor, regardless of whether their qualifications meet that definition.1
[17] At the sure risk of making these reasons longer, the Court now recites in full, the letter received from Loreto Day School, dated April 17, 1996, and signed by Sister Bernadette, I.B.V.M., principal:
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Ms. Margaret Mary Braganza was an active member of the Staff of Loreto Day School Elliot Road Branch Calcutta. She was responsible for the all round growth of the school and was involved with the children at all levels. She was co-ordinator in charge of organising, supervising and co-ordinating activities in the school. |
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Her detailed job description was as follows: |
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ORGANISING CELEBRATION AND IMPORTANT DAYS. |
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National Day, Independence Day, Co-ordinated Special Assemblies, |
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Teachers' Day and Indian Festivals Cultural Events and Exhibitions, preparing the hall seating arrangements and decor appropriately. |
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Open House Supervised entertainment/exhibition by the children, meeting of parents and teachers, organised light snacks and tea. |
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Annual Sports Day Co-ordinated drill display, athletic events, designed a programme brochure, purchased the prizes and certificates. |
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Annual Fete Fund raising effort, Organised the entire Fete, including the food, entertainment and Handicrafts Stall. |
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- Co-ordinated curricular activities for the seniors in school clubs including dramatics, music, public speaking, literary activities, cookery, knitting, art and craft, games -- basketball, table tennis, throw ball, hockey and indoor games . Organised inter house competitions in clubs and games. |
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- Organized with a student and teacher committee inter school festival incorporating a range of competitions including Eastern and Western Music, quizzes, dramatics and elocution. Assisted and advised other schools (St. Xaviers, St. James, and Loreto Schools) to host their Festivals. |
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- Budgeted, planned and arranged field trips to local places of interest, significance, natural beauty and rural areas. |
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- Organised two week summer camps during the summer vacations. These involved swimming, games, karate, music craft and excursions. |
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- Supervised extra curricular activities after school and co-ordinated a vocational guidance scheme including swimming, typing, knitting and music. |
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- Directed musicals and a Christmas programme annually. |
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- Was a consultant to other schools in organising plays, music festivals and competitions. |
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- Responsible for the school choir and taught music and singing. |
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- Organised talent contests for both senior and junior students. |
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- Encouraged children to attend evening study classes. |
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- Organised special help for the slow learners. |
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- Guided children needing remedial help, academic guidance and recommending children to boarding school. |
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- Assisted in the school sponsorship programme and liaised with sponsors from Australia, Belgium, SCF (Save the Children Fund) and Worked with ISSA (Indian Society for Adoption). |
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- Assisted in admissions and recruitment of personnel. |
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- Involved in the planning of the school calendar, incorporating the above and other activities in relation to the examination and holidays. |
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- Development and planning of school timetables and curriculum. |
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- Planned seminars and courses for the faculty in areas such as a) Progressive Teaching Methods, b) Reading and Writing, c) Personality Development. |
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- Worked in collaboration with the Teacher,s Centre -- A Progressive Educational Techniques Society in Calcutta. |
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- General Budgeting. Generated funds through Corporate Sponsors for events relating to co-curricular activities and thereby purchasing essential educational equipment for the school. |
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Margaret generally carried out her duties with sincerity and aplomb. Her untiring efforts combined with her organisational capabilities in particular were outstanding. |
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A comparison of the CCDO definition of student activities adviser, with the Loreto reality, shows how ill advised, rigid - and fundamentally wrong - the visa officer's assessment was. Paragraphs 13 and 17 illustrate the officer's misconception of the CCDO's requirements.
[18] The award of zero points for experience, for example, borders on wilful blindness and is equally wrong, and unfair. The applicant was, and is, absolutely entitled to a fair and reasonable assessment, and one which does bring in reverse "irrelevant and extraneous" factors through a rigid exclusion of relevant and integral factors, followed by an assessment of insufficient factors! The impugned assessment counts trees but misses the substantial forest. The impugned assessment flies in the face of good sense and constitutes the fault of maladministration.
2. Breach of Procedural Fairness
[19] The applicant also argues that there was a breach of the requirements of procedural fairness since the visa officer who interviewed the applicant was not the same person who signed the refusal letter.
[20] In support of this argument, the applicant relies on Sorkhabi v. Canada (Secretary of State) (1994), 26 Imm.L.R. (2d) 287 and Pangli v. Canada (Minister of Employment and Immigration) (1987) 4 Imm.L.R. (2d) 266 (F.C./A.). In Pangli, the Court of Appeal held that there was a denial of fundamental justice under section 2(e) of the Canadian Bill of Rights since the immigration officer who made the decision to refuse to the sponsorship application of the appellant's father, had never interviewed him. Counsel for the applicant has erroneously equated this decision with a requirement that in all cases the visa officer who interviews an applicant must be the person who signs the refusal letter. What counsel fails to note is that in Pangli there was some conflicting evidence as to the intentions of the applicant's father, requiring an assessment as to credibility. The Court of Appeal held that those circumstances mandated that the visa officer making the decision also be the person who interviewed the applicant. At pages 272 to 273, Mr. Justice Heald wrote:
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Having reached this conclusion, I emphasize the fact that I do so in rather special circumstances here present. In most cases, the Immigration Official will be able to make his decision based on the record before him and on his interview with individuals in question. However, in cases like this where the written records is not decisive but is, rather, quite ambiguous, I fail to see how the Immigration Officer or Officers charged with making the subsection 79(1) determination could make this decision in accordance with the principles of fundamental justice without taking steps to resolve the conflict and ambiguity. |
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[21] In Sorkhabi, Mr. Justice Gibson set aside a decision of an immigration officer but not on the basis alleged by the applicant. In that case, the immigration officer who refused the applicant's application was not the same person who interviewed the applicant. At pages 290 and 291 of that decision, Mr. Justice Gibson stated:
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I wish to comment on one further matter raised in the material before me but not argued before me. On the basis of the notification letter signed by a person other than the immigration officer who interviewed the applicant and her counsel, counsel for the applicant raised the concern that there was a breach of the principle that "he or she who hears must decide". In her affidavit filed before the Court, the immigration officer who interviewed the applicant swore that it was she who decided. However, the notification letter signed by another officer, states in part "... I have determined that there are insufficient humanitarian and compassionate considerations to warrant requesting such an exemption." I have no reason to doubt the sworn evidence to the effect that she who heard decided. That being the case, it is most unfortunate that the notification letter indicated otherwise. |
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[22] Based on these two cases, the applicant argues that it must always be the case that the immigration officer who interviews the applicant must be the same person who decides the case. However, neither case stands for that proportion. What Pangli states is that faced with a conflicting evidence or where credibility of a person is at issue, the immigration officer who interviews an applicant must be the person to render the decision. Similarly, from Sorkhabi it appears that when humanitarian and compassionate grounds need to be assessed, the interviewing officer must also render the decision. Thus, it appears that where an assessment is required of the person, rather than the person's qualifications, the interviewing officer must also be the officer to decide. That said, there does not appear to be an automatic requirement that the person signing the refusal letter must also be the interviewing officer.
[23] In the case at bar, there is one concern which was not raised by the applicant. Here, the CAIPS notes and the Tribunal's Record do not mention a points assessment given for the "personal suitability" factor by the interviewing officer. Yet, in assessing the applicant, she was awarded 6 points for personal suitability. The personal suitability factor provides that:
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Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependents to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities. |
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[24] The assessment of one's personal suitability requires that an assessment be performed during an interview. This assessment seems to be too low, but another visa officer will be given the opportunity to reconsider it. However, the impugned decision is not being quashed on this ground. In his affidavit the visa officer who signed the impugned decision takes no responsibility for the assessment of points, but attributes it to the interviewing officer.
3. Timing of the Decision
[25] The applicant's third argument is that the respondent's delay in mailing the decision irreparably prejudiced the applicant's rights due to the fact that the National Occupational Classification, which took effect on May 1, 1997, does not include the applicant's intended occupation. The applicant states that had the visa officer issued the decision in a timely manner, she could have refiled her application.
[26] The applicant relies on Campos v. Minister of Citizenship and Immigration, IMM-1431-96, January 30, 1997 in which Mr. Justice Gibson dismissed an application for judicial review of a decision of the CRDD. The CRDD rendered its decision twenty months after the hearing. Mr. Justice Gibson noted that:
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The delay in rendering the Tribunal's decision was indeed unfortunate. However, delay of itself, absent prejudice to the applicants, does not warrant granting relief to the applicants. |
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[27] The applicant states that the delay has resulted in prejudice to the applicants. The Campos case is distinguishable from the case at bar since that decision was determining whether the applicant was a Convention refugee. The delay may have resulted in the CRDD members not be able accurately to recollect the testimony of the applicant or having that person's status undetermined for a considerable length of time.
[28] While the delay was certainly considerable in this case, the delay has not prevented the applicant from entering Canada; it is that her occupation is no longer demanded in Canada. If the applicant was concerned about the delay she could have sought mandamus as in Bhatnager v. Canada (Minister of Employment & Immigration), [1985] 2 F.C. 315 (F.C.T.D.) to compel the respondent to make a decision. However, it is unreasonable to fix her with any lack of concern, since she could not know in advance of the change which the respondent was effecting to the CCDO and the qualifications.
[29] The applicant has demonstrated prejudice and accordingly this argument is allowed.
[30] The applicant did, in the Court's opinion, establish that the visa officer too strictly followed the definition in the CCDO thus exercising his discretion in an unfair manner. Furthermore, through no fault of the applicant, she was thoroughly prejudiced by delay, and had no notice of the impending changes which prejudiced her in making her application for landing. Applicant's record, pp. 57 and 58. Thus, the applicant should succeed on these grounds. Adequate remedies, requested by the applicant, will be ordered, with options for the applicant in the circumstances of another, quite new assessment of her application for permanent residence ab initio, in light of the prejudicial delay.
[31] Upon the whole of the case it is this Court's intention that the respondent really ought to have mighty good reasons, if any there be, for even considering rejecting the applicant's application for a second time. But, after all, such is the state of the law in the first place.
Judge
Ottawa, Ontario
April 14, 1998
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1 In his affidavit, Michael MacKenzie states that the applicant did not "participate in orientation programs for freshmen". He fails to note that the school at which she worked was a grade 2 to 12 day school. How "fresh" would he expect the freshmen to be, that they would require an orientation program?