Date: 20021010
Docket: IMM-3197-01
Neutral citation: 2002 FCT 1057
BETWEEN:
JASBIR SINGH GREWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] Mr. Jasbir Singh Grewal (the "Applicant") seeks judicial review of the decision of visa
officer Maria Colucci (the "Visa Officer"). In her decision dated June 4, 2001, she refused the application of the Applicant and his wife, Jatinder Pal Kaur Grewal, for permanent residence in Canada. The Applicant now seeks an order quashing the decision, an order referring the matter back for reconsideration by another visa officer in accordance with the law and an order for the costs of this application.
FACTS
[2] The Applicant and his wife are citizens of India. They made application for permanent
residence in Canada with the Canadian High Commission in New Delhi, India on March 6, 1999. The Applicant requested that he would be assessed as a mathematician under the National Occupational Classification ("NOC") 2161.1. His wife requested that she be assessed as a cook pursuant to NOC 6242.0.
[3] The Applicant and his wife were interviewed by the visa officer at the Canadian High
Commission in New Delhi on May 31, 2001.
[4] In their affidavit filed as part of this proceeding, the Applicant and his wife recounted the
conduct of that interview. The Applicant claimed that the Visa Officer never asked him any questions about his qualifications or experience as a mathematician nor expressed any concerns to him about these matters or any other aspects of his application. His wife claims that the Visa Officer did not ask any questions or express any concerns concerning her qualifications or experience as a cook or cooking instructor or about any other aspect of her application.
[5] The Visa Officer rejected the Applicant's application for permanent residence. According
to her refusal letter dated June 4, 2001, she was not satisfied that the Applicant met the employment requirement of a mathematician or that he performed a substantial number of the main duties of a mathematician as set out in the NOC.
[6] The Visa Officer also filed an affidavit for use in this proceeding. According to her
affidavit, she recorded her interview notes in the computer assisted immigration processing system ("CAIPS"). She states in her affidavit that she questioned both the Applicant and his wife about their work experience. She was not satisfied that the Applicant met their employment requirements of a mathematician and specifically, that he held a graduate degree in mathematics. She was not satisfied that he met a substantial number of the duties and responsibilities identified in the NOC 2161 as a mathematician.
[7] Similarly, the Visa Officer stated in her affidavit that she had reviewed the educational
background of the Applicant's spouse. She questioned Mrs. Grewal about her experience as a cook and noted that she had work experience as a cooking instructor only. The Visa Officer was not satisfied that, as cooking instructor, the Applicant's spouse met a substantial number of the duties and responsibilities for the particular occupation in which she applied, that is as a cook. The Visa Officer stated in her affidavit that Mrs. Grewal was assessed as a cook. She was informed at the interview that there was no occupational demand for cooking instructors in Canada.
[8] By a letter dated June 4, 2001, the Visa Officer advised the Applicant that he did not
qualify for permanent residence in Canada. The letter sets out the reasons upon which the application was refused.
APPLICANT'S ARGUMENTS
[9] The Applicant argues that the Visa Officer did not express any concerns about his
educational qualifications during the interview. He provided a transcript of marks for his Master's of Science degree and he was not questioned about this. He argues that if the Visa Officer had doubts about his educational qualifications or the documents submitted in support for those qualifications, she should have raised her concerns. Failure to do so constitutes a breach of procedural fairness.
[10] The Applicant then argues that the Visa Officer erred in law by failing to award points for
the experience factor set out in Item 3, Schedule 1 to the Immigration Regulations, 1978, SOR/78-172, as amended. He argues that he and his wife had the requisite experience to qualify in their claimed occupations.
[11] The Applicant further argues that the Visa Officer erred in law by neglecting to consider
the separate elements of the employment positions identified by the Applicant and his wife in their work histories. The failure to do this and to take these components into consideration and analyzing whether the Applicant and his wife met the job requirements for the occupations of mathematician and cook, resulted in the negative assessment for experience.
[12] The Applicant argues that the Visa Officer further breached the duty of fairness by failing
to properly and fully assess his wife's application. He submits that the Visa Officer summarily dismissed consideration of his wife's experience and her designated occupation of "cook". He argues that the Visa Officer improperly restricted herself to his wife's job title, of cooking instructor, and did not embark on a specific line of questioning concerning the actual work experience related to that position.
[13] Finally, the Applicant argues that the Visa Officer erred in awarding only six units for his
English language ability. In his affidavit, he stated that all his university studies had been undertaken in the English language. He argues that he can read, write and speak fluently and that his accent led the Visa Officer to erroneously conclude he was not fluent in English.
[14] The Applicant argues that his interview was conducted in English and without an
interpreter. The Applicant argues that it is unfair for the Visa Officer to penalize him, by minimizing his fluency in English, merely on account of his accent.
RESPONDENT'S SUBMISSIONS
[15] The Respondent argues that it is well established that a person seeking admission to
Canada as a permanent resident must meet the employment requirements set out in the NOC in order to obtain units of assessment for experience.
[16] The Respondent says that the Applicant received zero points for experience because the
Visa Officer was not satisfied that he met the employment requirements for NOC 2161.1, in particular that he held a graduate degree in mathematics or that he had performed a substantial number of the main duties set out in that description.
[17] The Respondent argues that, in the absence of evidence before the Visa Officer that the
Applicant indeed possessed a Master's of Science degree in mathematics, her conclusion on that point was reasonable. The onus lay on the Applicant to produce all the information and support of his application, including sufficient proof of his academic attainments.
[18] The Respondent argues that the Visa Officer provided the Applicant with an
opportunity to explain the details of his work experience but he did not elaborate beyond stating that his only work experience was that of teaching math to senior classes.
[19] The Respondent argues that it was reasonably open to the Visa Officer to conclude that
the Applicant had not performed a substantial number of the main duty of a mathematician as set out in NOC 2161.
[20] Regarding the Applicant's language ability, the Respondent argues that the Visa Officer
committed no reviewable error. Since this Court has held that a Visa Officer is in the best position to evaluate an applicant's language abilities and that this determination should not be interfered with lightly, the Respondent submits that this argument is without merit. Here the Respondent relies on Yang v. Minister of Citizenship and Immigration, 2001 FCT 750, [2001] F.C.J. No. 1126 (F.C.T.D.) (Q.L.).
[21] The Respondent argues that the Visa Officer reached a reasonable conclusion concerning
the application by the Applicant's spouse in her intended occupation as a cook. She concluded that the spouse had not performed a substantial number of the main duties set out in NOC 6242 and that this conclusion was reasonably open to her, on the basis of the evidence presented at the time of the interview.
[22] The Respondent further argues that there was no evidence to support the Applicant's
contention that the Visa Officer dealt with Mrs. Grewal's application in a summary manner. To the contrary, the tribunal record indicates that the Visa Officer conducted a separate assessment of Mrs. Grewal's application and provided her with the opportunity to elaborate on her experience.
[23] In conclusion, the Respondent argues that the Visa Officer's conclusions regarding the
experience of both the Applicant and his spouse, and the language ability of the Applicant, are factual findings which are subject to a high degree of deference.
ANALYSIS
[24] This application arises from the discretionary decision of a Visa Officer in her assessment
of application for permanent residence in Canada in the independent category. The decision under review involves findings by the Visa Officer concerning the qualifications of the Applicant and his spouse in the categories identified in their applications for permanent residence. According to the Federal Court of Appeal in Lim v. Canada (Minister of Employment and Immigration) (1981), 121 N.R. 241 (F.C.A.), a finding whether a person is qualified to meet a specific occupational definition "was a pure question of fact entirely within the mandate of a Visa Officer to resolve". The standard of review relative to factual findings made by a Visa Officer in such a case is patent unreasonableness; see Sharma v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1131, [2001] F.C.J. No. 1562 (F.C.T.D.) (Q.L.).
[25] In the present case, the Visa Officer was required to make finding of facts concerning the
Applicant's application for admission into Canada, as a permanent resident, in the intended occupation of mathematician. She was not satisfied that the Applicant met the requirements of that position. In my opinion, she did not make an erroneous finding of fact in a perverse or capricious manner without regard for the material before her, in the manner in which she has assessed the Applicant's educational qualifications, his experience, employment as a math teacher or in his language ability.
[26] Insofar as her assessment of the spousal application is concerned, I am
satisfied that her conclusions in that regard are also reasonable and supported by the evidence on the record before her.
[27] Furthermore, the record shows that the Visa Officer did fully and fairly assess the
application of the Applicant's spouse and reasonably assessed Mrs. Grewal's employment history and experience.
[28] On the basis of the record before the Visa Officer, the conclusions she ultimately reached
were reasonable.
[29] The application for judicial is dismissed.
[30] No question for certification arises from this application.
ORDER
The application for judicial review is dismissed.
"E. Heneghan"
J.F.C.C.
OTTAWA, ONTARIO
October 10, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3197-01
STYLE OF CAUSE: JASBIR SINGH GREWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, OCTOBER 7, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: THURSDAY, OCTOBER 10, 2002
APPEARANCES: Mr. Jaswant Singh Mangat
For the Applicant
Ms. Angela Marinos
For the Respondent
SOLICITORS OF RECORD: Mr. Jaswant Singh Mangat
Barrister and Solicitor
Mangat & Company
7420 Airport Road, Suite 202
Mississauga, Ontario
L4T 4E5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021010
Docket: IMM-3197-01
BETWEEN:
JASBIR SINGH GREWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER