Date: 19990208
Docket: IMM-4514-97
BETWEEN:
ROGELIO R. DE GUZMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] By originating motion the applicant seeks an order in the nature of certiorari to quash the decision of the visa officer at the Canadian Embassy, Manila, determining that the application by the applicant for admission to permanent residence in Canada, in the independent/assisted relative category, should be refused.
[2] The applicant is a citizen of the Philippines. He applied for permanent residence in April, 1997, indicating his intended occupation in Canada was "CCDO5133-126, sales representative, commercial and industrial equipment and supplies", an occupation included and described in the then relevant Canadian Dictionary of Occupations.
[3] The applicant had completed secondary schooling and a two-year college program in technology. Thereafter, from October 1991 to April 1992 he was employed as a salesperson trainee with Qualitek Industrial & Engineering Supplies Inc. ("Qualitek"), in the Philippines. Afterward, he was employed as a salesperson with Qualitek until August 1995. In September of that year he came to Canada to study and visit with two sisters who are Canadian citizens. He resided in Canada from September 1995 to June 1997, completing computer courses in the fall of each year, travelling with his sisters and looking after one of their children.
[4] With his application the applicant filed a letter dated September 1, 1995, from Qualitek, his former employer, which described the company as a wholesaler and distributor of a wide variety of hardware and electrical equipment for both commercial and industrial use. The letter described the applicant's responsibilities, his relationship with clients, including a number of multi-national companies, and it expressed great satisfaction with his work, noting he had maintained an excellent sales record and good relations with clients.
[5] The applicant was interviewed by a visa officer in Manila on July 10, 1997. At that interview he advised the visa officer that he had started again, the previous week as a salesperson with Qualitek, the employer with which he had worked before going to Canada. By letter dated September 17, 1997, the applicant was advised that his application for permanent residence was refused. In that letter the visa officer advised that he was assessed in his intended occupation and that
| Your application has been refused because you have failed to demonstrate that you are qualified for your intended occupation in Canada, as it is defined in its CCDO description. Accordingly, you cannot be awarded any units of assessment under the experience factor, as you have not met the requirement that you have accumulated at least one year of experience in the occupation you intend to follow in Canada and you have not met the 70 point minimum. |
[6] The officer's assessment is questioned in two respects in this application for judicial review. It is urged that the officer erred in assessing the applicant in relation to the experience factor at 0 and in assessing personal suitability at 01. The maximum points assessable for these two factors under the Regulations as they then applied were 8 and 10, respectively. The experience factor relates to assessment for experience in the occupation which the applicant indicates he proposes to follow in Canada, in this case as a sales representative, commercial and industrial supplies, (CCDO5133-126). It is said that the officer failed to take into consideration the letter from the applicant's employer, Qualitek, and that in any event, experience claimed for that employment was improperly assessed.
[7] The applicant's affidavit in support of his application for judicial review refers to the employer's letter, submitted with his application, and it is urged the visa officer failed to consider that and the relevant information it contained. The responding affidavit of the visa officer makes no reference to that letter though it does refer to his application for permanent residence and a covering letter from immigration consultants under which it was submitted to the Manila Embassy. That covering letter makes summary reference to the applicant's experience as a salesperson with Qualitek though not in the detail that had been provided by the employer's letter. The CAIFS notes made at the time of the interview by the officer make no reference to the employer's letter. The notes do refer to the applicant having returned to employment with Qualitek and the notes include as a reason for refusal:
| Although PI [prospective immigrant] has three years experience in industrial tools--sales, PI had difficulty indicating in detail types of equipemt [sic] sold and was not aware of latest trends/designs in new technology on market for industrial tools so have given PI zero points for exp. [experience.] |
[8] Only after the tribunal's record was filed with the Court, without including a copy of the applicant's application or of the letter from the employer, and subsequent inquiries were made by counsel for the applicant, was it apparent that neither the visa officer nor the Department had any recent reference to the original of the application here in question. By correspondence, counsel for the applicant was advised that the officer's reference to the application, for purposes of her affidavit in response on behalf of the minister, was to the copy provided with the applicant's affidavit in support of his originating motion. Further, there was no longer a full record of the application in possession of the Ministry since the file was stripped before the application for judicial review was filed, on October 27, 1997. I note that maintenance of the full file was apparently abandoned after consideration of the application by the visa officer in July of 1997, presumably following the interview of the applicant on July 10, with a decision only communicated by letter dated September 17, 1997 which was received by the applicant on September 26th. Thus, before filing of the originating notice of motion in this matter on October 27, 1997, some 31 days after the applicant received advice of rejection, his file had been stripped.
[9] No further explanation was offered on behalf of the Minister, and the apparent lack of any record, in the Ministry's file, of the letter from the applicant's employer, in my view, simply is not explained. No evidence is directed to whether it was considered by the visa officer. References in her CAIFS notes to the former employer could have been based upon the covering letter accompanying the application, or upon the information provided at the interview. In the circumstances, absent evidence of the visa officer that she considered the employer's letter, I am not prepared to assume that it was considered. Without that there is no evidence that the most significant written evidence relating to the applicant's experience in his selected job classification was considered by the officer.
[10] Further, in assessing his experience, on the basis of whatever was the evidence before the visa officer, I am persuaded that she erred by assessing experience primarily or exclusively with relation to the closing words of the job description for the class 5133 Commercial Travellers which by CCDO-5133-126, the applicant's intended occupation, is applicable in his case. The general classification 5133 is described thus:
| This unit group includes occupations concerned with selling commodities on a wholesale basis in an allotted geographical area to wholesale, retail, industrial, professional or other establishments. Duties include: soliciting orders from established clientele and attempting to secure new customers; showing samples of catalogue illustrations of products to prospective buyers, and explaining their merit; quoting prices, and credit and discount terms; arranging delivery schedules; processing orders to office or warehouse; resolving customer complaints; and keeping abreast of the latest market conditions, product innovations and price changes. |
[11] It is clear from the officer's CAIFS notes and from her affidavit that the applicant was assigned zero points for experience on the basis of the closing words of that description "keeping abreast of the latest market conditions, product innovations and price changes." In her affidavit the officer avers that the applicant had difficulty describing "in detail the various types of industrial tools that he sold to his customers" and "could not tell me the latest equipment and technology on the market in the field of industrial tools." It was an error to assess his experience only with reference to the current market place.
[12] For these reasons, I conclude that the officer, in this case, erred in the method used to assess experience, which resulted in zero points assigned.
[13] In itself that would not warrant intervention by the Court since even if he were awarded the maximum points for experience, at that time 8 points, the applicant would still have too few points to qualify for admission to Canada. Of the 70 points required, the applicant had been assigned a total of 58.
[14] There is another respect in which the visa officer erred, in my view. In assessing personal suitability, the officer assigned one point out of a possible 10. That assessment is "to reflect the personal suitability of the person...to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities." (See: Immigration Regulations, Schedule I, factor 9, as it then applied.) In her affidavit the visa officer notes that at the interview the applicant noted he had spent most of his time in Canada travelling to different places in Ontario and, from her CAIFS notes, "that he spent most of his free time at home babysitting his nephew." The applicant by his affidavit avers that his comment about travelling was made with reference to the last six months of his stay in Canada. While the officer's CAIFS notes do record that most of his free time was spent at home babysitting his nephew, that was related in those notes to his time on a visitor's visa from January to June 1997 being spent in this way. The notes then state that "this may have been true purpose for travel to Cda as probably cared for child while in Cda". While the officer was not impressed by his apparent failure to search out employment opportunities in Canada while he was here, it would seem that a principal factor in her assessment was the perception that the applicant may have travelled to Canada to provide babysitting services for his sister's son. I agree with counsel for the applicant that failure to indicate her concern about that service was a breach of the duty of fairness in the circumstances of this case.
Conclusion
[15] In my opinion, in her decision the visa officer erred in assessing experience, with no evidence that the key document concerning the applicant's experience, the letter from his employer, was considered, and by assessing experience on the basis of the applicant's interview, primarily on the applicant's demonstrated knowledge of tools and equipment in the current market place. Further, by apparently considering a purpose for the applicant's earlier travel to Canada which was not supported by any direct evidence and was not brought to the applicant's attention for comment, the officer erred in not meeting her responsibility for fairly assessing the application.
[16] Thus, the application is allowed, by Order. The matter is referred back to the respondent Minister for reconsideration of the application for permanent residence, by another visa officer. The applicant sought costs, and in the circumstances here they are ordered on the normal party and party basis.
Judge
OTTAWA, Ontario
February 8, 1999.