Date: 20040426
Docket: IMM-2681-02
OTTAWA, Ontario, this 26th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
ANTHONY CHRYSANTHA LALITH SIRIWARDENA
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Cindy Munro, visa officer at the Canadian High Commission in Colombo, Sri Lanka ("visa officer"), dated April 3, 2002, which refused the applicant's application for permanent residence in the Independent category as a Business Development Officer or as a Telecommunications Engineer, because he received less than the required minimum of 70 units of assessment points.
FACTS
[2] The applicant is a 37 year old citizen of Sri Lanka who applied for permanent residence in December, 2001. He requested that he be assessed under the following occupations: Business Development Officer and all related occupations (NOC 4163.0), Telecommunications Engineer and all related categories including Microwave Systems Engineer, Test Engineer, Electronics, Transmission Planning Engineer (NOC 2133.0). He presented the following qualifications to support his application:
Education
i. a Diploma in Computer Programming from East-West Information Systems;
ii. a BSc. in Engineering from the University of Moratuwa in Colombo;
iii. a Certificate in Front Office & Housekeeping from the Colombo Hilton;
Work History
i. From 2001 - date: iOnosphere Lanka, Consultant Business Solutions
ii. From 2000 - 2001: Celltell Lanka Ltd., Head of Sales and Marketing
iii. From 1996 - 2000: Suntel Ltd., Corporate Sector Manager
iv. From 1994 - 1996: Mobitel Ltd., Product Manager
v. From 1991 - 1993: Genetco, Senior Sales Executive
vi. From 1990 - 1992: Adelphi Electronics, Acting Sales Manager/Senior Sales Executive
vii. In 1991: Hilton Colombo, Banquet Steward and Front Office Assistant
viii. From 1987 - 1990, Fentons Ltd., Sales/Customer Service Officer
[3] On March 29, 2002, the visa officer assessed the applicant under each of the requested occupations and refused his application at the paperscreening stage, without an interview. The visa officer determined that the applicant did not meet the requirements for any of his intended occupations, because he did not have the education required for business development officers, and he did not have the employment experience required for telecommunication engineers. In her refusal letter, the visa officer states at page 1:
Your application was assessed based on the requirements for the occupation Business Development Officer, NOC: 4163.0 this being the occupation under which you requested assessment. You will find hereafter the units of assessment awarded for each of the selection criteria:
NOC
AGE 10
OCCUPATIONAL FACTOR 00
EDUCATION AND TRAINING 17
EXPERIENCE 00
ARRANGED EMPLOYMENT OR DESIGNATED OCCUPATION 00
DEMOGRAPHIC FACTOR 08
EDUCATION 15
KNOWLEDGE OF ENGLISH 09
KNOWLEDGE OF FRENCH 00
PERSONAL SUITABILITY
TOTAL 59
The letter continues at page 2:
You have obtained insufficient units of assessment to qualify for immigration to Canada, the minimum requirement being 70 points.
Subsection 11(2) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants, in the class in which you have applied, who have received zero units of assessment for the occupational factor. You received no points for this factor because you do not meet the employment requirements for your occupation in Canada. Specifically, you do not have the required educational background.
Subsection 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"... You cannot be awarded points for experience in an occupation for which you do not meet employment requirements.
You have also been assessed as a Telecommunication Engineer and in occupations related both to Business Development Officers and to Telecommunications Engineers but you also do not meet the employment requirements of those occupations...
[...]
[4] Subsections 11(1) and (2) of the former Immigration Regulations, 1978 S.O.R./78-172 ("Regulations") provide in part:
| 11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant
(a) 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; or
(b) is qualified for and is prepared to engage in employment in a designated occupation.
2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless
(a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I; [...]
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11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant:
a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou
b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire.
(2) Sous réserve des paragraphes (3) et (4), l'agent des visas ne délivre un visa en vertu des articles 9 ou 10 à un immigrant autre qu'un entrepreneur, un investisseur, un candidat d'une province ou un travailleur autonome, que si l'immigrant:
a) a obtenu au moins un point d'appréciation pour le facteur visé à l'article 4 de la colonne I de l'annexe I; [...]
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[5] The relevant portions of Schedule I of the Regulations provide in part:
| 3. Experience
Units of assessment shall be awarded for experience in the occupation in which the applicant is assessed under item 4 or, [...]
4. Occupational Factor
(1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation
(a) for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification;
(b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and
(c) that the applicant is prepared to follow in Canada. [...]
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3. Expérience
Des points d'appréciation sont attribués pour l'expérience acquise dans la profession pour laquelle le requérant est apprécié selon l'article 4 ou, [...]
4. Facteur professionnel
(1) Des points d'appréciation sont attribués en fonction des possibilités d'emploi au Canada dans la profession:
a) à l'égard de laquelle le requérant satisfait aux conditions d'accès, pour le Canada, établies dans la Classification nationale des professions;
b) pour laquelle le requérant a exercé un nombre substantiel des fonctions principales établies dans la Classification nationale des professions, don't les fonctions essentielles;
c) que le requérant est prêt à exercer au Canada. [...] |
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ISSUES
[6] The applicant raises the following issues:
(1) is the visa officer credible?
(2) did the visa officer apply the wrong standard in assessing this application?
(3) did the visa officer fail to keep a proper record of her evaluation of this application?
(4) did the visa officer ignore key evidence and rely selectively on other evidence?
(5) did the visa officer make erroneous findings of fact?
(6) did the visa officer breach the principles of fundamental justice?
ANALYSIS
(a) Applicant's Position
[7] The applicant submits that this decision ought to be reversed because the visa officer proved to be incredible during cross-examination on her affidavit. The applicant contends that during cross-examination, the visa officer acknowledged her failure to carry out her duties in the prescribed manner and to come to a just conclusion on the merits. The applicant submits that the visa officer erred by assessing him on the higher standard of "compelling evidence. The applicant submits that the visa officer failed to properly record her evaluation of his application in the Computer Assisted Immigration Processing System ("CAIPS"). The applicant submits that the visa officer failed to provide him the opportunity to disabuse her of any concerns arising during the evaluation of his application, by either allowing him an interview or verifying the actual nature of his duties with his previous and current employers.
[8] The applicant submits that the visa officer ignored his specific request that she exercise positive discretion with respect to his application. The applicant further submits that where a visa officer blatantly errs in exercising her discretion, or fails to even consider exercising discretion, this constitutes reversible error. The applicant submits that the visa officer erred in her NOC 4163.0 assessment by focussing on one employment requirement alone and failing to assess whether he fulfilled the other requirements. The applicant submits that the visa officer ignored evidence of the engineering aspects of his job functions and relied solely on his sales and marketing functions to reach her decision. The applicant submits that the visa officer denied him fundamental justice by failing to assess him in all applicable categories.
(b) Respondent's Position
[9] The respondent submits that the applicant has misrepresented the visa officer's testimony, and that there is no factual support for the allegation that the visa officer is incredible, and that her affidavit is unreliable. The respondent submits that a careful examination of the visa officer's decision shows that she applied the proper standard and not a higher standard of "compelling evidence". The respondent submits that the visa officer made adequate remarks in the CAIPS notes and that there is no requirement that CAIPS notes be a verbatim record. The respondent further submits that failure to refer to all evidence presented does not constitute reviewable error, in the absence of an overriding error.
[10] The respondent submits that the visa officer clearly turned her mind to the exercise of positive discretion as permitted by subsection 11(3) of the former Regulations. The respondent further submits that in any case, that discretion is residual in nature and only becomes decisive in cases where the applicant has come close to obtaining 70 units of assessment. The respondent submits that written reasons are only required where a visa officer decides not to invoke positive discretion. The respondent submits that the visa officer did not breach the duty of fairness in rejecting this application without an interview, because there is no obligation to continue an assessment where it is apparent that the applicant does not meet key criteria such as the employment requirement. The respondent submits that the visa officer did not err by not assessing the applicant as a Technical Sales Specialist, because this occupation was not specifically requested.
[11] The respondent submits that the evidence does not establish that the applicant performed some or all of the duties of an engineer, and that the applicant failed to meet the burden of satisfying the visa officer fully, that he meets the selection criteria of the former Immigration Act, R.S.C. 1985, c. I-2 ("Act") and Regulations.
[12] This Court has made it clear that the determination of an applicant's occupational qualifications is a finding of fact which falls entirely within the visa officer's jurisdiction. This Court will not interfere with such a finding unless it is patently unreasonable. In Kalia v. Canada (MCI), 2002 FCT 731, [2002] F.C.J. No. 998 (T.D.) (QL), MacKay J. wrote the following at para. 8:
In my view the standard of review of a discretionary decision of a visa officer in assessing experience of an intended immigrant in relation to a particular occupation is well settled. In accord with the decision of the Supreme Court of Canada in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, a court will not intervene in regard to the exercise of discretion vested by statute merely because the court might have exercised the discretion differently if it had been charged with the responsibility. [...]
[13] After reviewing the certified record, transcript of cross-examination, and the submissions of the parties, I find that I am unable to agree with the applicant for the following reasons.
Issue No. 1: Is the visa officer credible?
[14] The applicant's submissions with respect to the visa officer's credibility are without merit because there is no factual basis for the applicant's assertions. On reviewing the transcript of cross-examination, it is evident that the applicant has misstated the visa officer's testimony.
Issue No. 2: Did the visa officer apply the wrong standard in assessing this application?
[15] The applicant submits that the visa officer erred by applying the standard of "compelling evidence" in evaluating his application. I have reviewed the visa officer's reasons, affidavit explaining her reasons, and CAIPS notes, and I find nothing in the reasoning or language employed by the visa officer to suggest that she did not evaluate this application in accordance with the Act and Regulations. Her decision indicates that she was guided by the relevant sections of the Regulations, and furthermore, subsection 6(1) of the Act states:
| 6.(1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependents, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations.
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6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure.
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[16] I see no reason to conclude that the visa officer did anything other than require the applicant to satisfy her that he meets the selection standards established by statute.
Issue No. 3: Did the visa officer fail to keep a proper record of her evaluation of this application?
[17] While there is no requirement that the CAIPS notes be a verbatim record of a visa officer's evaluation, there is an expectation that events or factors which are determinative of the application will be noted in CAIPS. See Abdul-Karim v. Canada (MCI) (2000), 191 F.T.R. 115 (T.D.) at paragraph 19. I find that the CAIPS notes contain the determinative reasons for the visa officer's refusal, at pages 6 - 7 of the certified record as follows:
PI HAS BACH IN ENGINEERING AND DOES NOT APPEAR TO MEET EDUC RQRMNTS OF INTENDED OCCUP. EXP APPEARS TO BE MORE IN LINE WITH MARKETING MANGER 0611.2.
NO ENGINEERING EXP EVIDENT
[...]
I AM NOT SATISFIED THAT APPLICANT MEETS REQUIREMENTS AS BUSINESS DEVELOPMENT OFFICER AS THIS REQUIRES A BACHELOR'S DEGREE IN ECONOMICS, COMMERCE, BUSINESS ADMIN OR PUBLIC ADMIN. PI'S DEGREE IS IN ENGINEERING.
PI DOES NOT MEET OCCUPATIONS CLASSIFIED UNDER SAME NOC CODE FOR SAME REASON.
[...]
TELECOMMUNICATIONS ENGINEER - I AM NOT SATISFIED THAT PI HAS PERFORMED A SUBSTANTIAL NUMBER OF THE MAIN DUTIES. UPON REVIEW OF HIS CV AND REFERENCE LETTERS, THERE IS NO EVIDENCE THAT PI HAS EXPERIENCE AS AN ENGINEER. ...
I HAVE ALSO CONSIDERED PI UNDER THE OCCUPATIONS INCLUDED UNDER THE SAME CLASSIFICATION AS TELECOMMUNICATIONS ENGINEER, AND I AM ALSO NOT SATISFIED THAT HE HAS PERFORMED A SUBSTANTIAL NUMBER OF THE MAIN DUTIES FOR ANY OF THESE OCCUPATIONS
APPLICATION REFUSED AT PAPERSCREENING.
Therefore I find that the visa officer did keep a proper record of her evaluation of this application.
[18] I will deal with the fourth and fifth issues together which are:
Issue No. 4: Did the visa officer ignore key evidence and rely selectively on other evidence?
Issue No. 5: Did the visa officer make erroneous findings of fact?
[19] In the absence of an overriding error, it must be assumed that the visa officer considered all relevant evidence that was before her. See Hsu v. Canada (MCI) (1999), 50 Imm. L.R. (2d) 123 (F.C.T.D.) at paragraph 13. In this case, the allegation is that the visa officer ignored evidence of the engineering aspects of the applicant's job functions, and relied solely on his sales and marketing experience in reaching her decision. Having reviewed the certified record, I find that the applicant's employment letters, reference letters and CV overwhelmingly present evidence of sales and marketing experience, and hardly reflect a performance of a substantial number of the main duties associated with engineers, for any of the categories he requested.
[20] The Regulations make it clear that a visa officer cannot award units of assessment for the occupational factor where an applicant has not performed a substantial number of the main duties set out under the relevant category in the NOC. Therefore, I do not find that the visa officer ignored any evidence or made erroneous findings of fact in reaching her decision.
[21] At the hearing the applicant argued that he ought to have been assessed on the NOC for "Technical Sales Specialist", and referred the Court to the cross-examination of the visa officer at page 105 of the transcript:
A. You asked me to consider him as a telecommunications engineer.
Q. Right.
A. I was not satisfied that he has experience as telecommunications engineer. And in fact, since you've mentioned technical sales specialist, I think that's probably a more accurate description of the kind of work that he does. And perhaps had I thought of that at the time, or had you thought of it when you submitted your letter asking for him to be considered under various occupations, that might have been more appropriate.
The applicant did not request that he be assessed under this NOC, and the visa officer did not consider this alternative NOC until suggested by counsel for the applicant at the cross-examination. The Court suggested that the applicant reapply under this NOC since it appears that both the applicant and the respondent think the applicant would be awarded units of assessment for experience as a "Technical Sales Specialist". The respondent cannot be faulted for failing to consider an occupation not applied for, or inherently obvious.
Issue No. 6: Did the visa officer breach the principles of fundamental justice?
[22] The applicant submits that the visa officer was under a duty to either allow him an interview or verify the actual nature of his duties with his previous and current employers. The applicant submits that the visa officer ignored his specific request that she exercise positive discretion with respect to his application, and that she denied him fundamental justice by failing to assess him in all applicable categories.
[23] First of all, the jurisprudence of this Court indicates that where it is apparent that an applicant does not meet the employment requirements of the intended occupation, there is no obligation to continue the assessment. See Luthra v. Canada (MCI), 2001 FCT 331, [2001] F.C.J. No. 571 (T.D.)(QL); Cai v. Canada (MCI), [1997] F.C.J. No. 55 (T.D.)(QL); and Xu v. Canada (MCI) (1999), 177 F.T.R. 122 (T.D.). Secondly, it is trite law that the onus is on the applicant to convince the visa officer that his application conforms to the Act and Regulations. Thirdly, I agree that when a related occupation is requested for, at some point a determination has to be made as to what is reasonable in considering alternative occupations. It is unreasonable to expect the visa officer to go through every single possibility of related occupations in the NOC. I am also assisted by Dawson J.'s reasoning in Mitra v. Canada (MCI), 2002 FCT 541, [2002] F.C.J. No. 701 (T.D.)(QL) where she examines the duty to consider alternative occupations and concludes at paragraphs 3 - 5:
[3] I am satisfied the visa officer did not err in failing to assess Mr. Mitra in an alternate occupation for the following reasons.
[4] First, in Adami v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 669 (T.D.) Evans J., as he then was, reviewed the relevant jurisprudence of the Court and concluded that a visa officer is only required to assess an applicant in an occupation that the applicant has indicated that he or she is qualified for, and interested in pursuing in Canada. I agree that the weight of authority is to that effect.
[5] Second, in Warsi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1646 (T.D.) Rothstein J., as he then was, considered the failure of a visa officer to assess an applicant in related fields where the applicant had indicated that his intended occupation was "mechanical engineer or job in related fields". Justice Rothstein concluded that reference to "a job in related fields" did not designate an alternate occupation and found "no onus on the visa officer to review the CCDO [now the NOC] and attempt to decide in any given case whether a job is in a related field". Similarly, I find reference to "any other occupation that in your professional opinion will enable Mr. Mitra to qualify for permanent residence to Canada" does not designate an alternate occupation so as to trigger the obligation to assess in that intended occupation.
[24] Finally, I accept the respondent's submission that the positive discretion permitted by subsection 11(3) of the Regulations is residual in nature and only becomes decisive in cases where the applicant has come close to obtaining 70 units of assessment. In this case, the applicant has only obtained 59 points. See Chen v. Canada (MCI) (1999), 166 F.T.R. 78 (T.D.), per Evans J. at paragraph 23. Furthermore, a visa officer is not duty bound to exercise this discretion. In this case, the visa officer testified under oath that she turned her mind to positive discretion, but decided against exercising it because she saw no evidence that the applicant would be a good candidate for positive discretion. I find that the visa officer's decision was entirely open to her. And since the exercise of positive discretion is not a decisive factor in this application, the visa officer did not err in failing to note her consideration of it in the CAIPS notes.
[25] For all of the above reasons, this application for judicial review must be denied.
[26] No question was proposed for certification. The Court agrees that this case does not present any question which should be certified.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review is denied.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2681-02
STYLE OF CAUSE: ANTHONY CHRYSANTHA LALITH SIRIWARDENA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, APRIL 22, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES BY: Mr. T.Viresh Fernando
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: T. Viresh Fernando
Barrister and Solicitor
2 Carlton Street, Suite 804
Toronto, Ontario
M5B 1J3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20040426
Docket: IMM-2681-02
BETWEEN:
ANTHONY CHRYSANTHA LALITH SIRIWARDENA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER