Date: 19980213
Docket: IMM-286-97
BETWEEN:
GHULAM MUSTAFA JANJUA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J:.
[1] These reasons arise out of an application for judicial review of the decision of a visa officer wherein the visa officer refused the applicant's application for permanent residence in Canada. The decision is dated the 23rd of September, 1996.
[2] The applicant is a citizen of Pakistan, born in April of 1955. He is well-educated. He has a substantial employment history with The United Bank Limited in Pakistan. For six years preceding the date of his interview with the visa officer, he was employed as a "credit officer" with the bank. In his application for permanent residence in Canada, the applicant indicated his intended occupation in Canada to be that of a "credit officer".
[3] In his decision letter, the visa officer indicates that he awarded the applicant, against the occupation "credit officer", a total of 55 units of assessment including zero units for "experience" in the applicant's intended employment. The visa officer wrote:
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You have failed to earn the minimum required units of assessment required to pass in the Independent category (70). I consider the units of assessment which you have been awarded are an accurate reflection of your ability to successfully establish in Canada. |
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I have also considered possible humanitarian and compassionate factors. I have determined that there are insufficient grounds to warrant special consideration. |
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[4] While counsel for the applicant indicated in both written and oral submissions that the visa officer committed a number of reviewable errors in arriving at the decision he did, I conclude that a brief analysis of two of those alleged errors is determinative of this application for judicial review. Those two alleged errors are: first, whether the visa officer erred in his assessment of the applicant's experience due to a failure to recognize the purpose of the Canadian Classification and Dictionary of Occupations (the "CCDO") as a guide, thereby misinterpreting the item in the CCDO with respect to "credit officer" on the facts before him; and second, whether the visa officer denied the applicant procedural fairness in the consideration of the applicant's application for permanent residence in Canada.
[5] The item "credit officer" in the CCDO commences with the following lead statement:
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Examines, evaluates and processes applications for credit or loans and authorizes or recommends their approval. |
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[emphasis added]
[6] There follows a relatively long, more detailed statement, which includes the following:
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Approves loans within specified limits or refers loans to manager or loan committee for approval. |
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[7] In his affidavit filed in this matter, the visa officer attests:
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3. I asked the Applicant a number of questions at the interview, in order to determine whether he is qualified to be a Credit Officer, which was his intended occupation. During the interview, the Applicant clearly admitted that he does not actually approve nor does he make recommendations to approve credit or loan applications, which he examines in the course of his work. I noted that the first sentence of the Canadian Classification and Dictionary of Occupations (CCDO) definition requires that a credit officer must authorize or recommend the approval of such applications. The applicant informed me that the task of approving or recommending approval of applications for loans or credit were the responsibility of his superiors, namely the general manager and the chief manager. |
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4. I determined that the tasks performed by the Applicant do not correspond with the main criteria described in the CCDO definition and that he has no experience and is not qualified as a credit officer. |
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[8] Both the visa officer's notes at interview and his cross-examination on his affidavit confirm the foregoing. The applicant does not deny that the visa officer's affidavit is accurate in this regard but expresses concern that he was not given full opportunity before the visa officer to explain what functions he actually performed.
[9] Counsel urged that the visa officer failed to take into account the totality of the description of "credit officer" and, more particularly, failed to take into account the possible conflict between the two extracts from the description of "credit officer" in the CCDO quoted above. He urged that the second extract indicates that the function of "authorizing" or "recommending" that is reflected in the lead statement is not reflected in the body of the item and therefore the fact that the applicant acknowledged that he neither authorizes or recommends approval of loans should not be determinative. Rather, it was argued, the applicant's experience and full range of functions should have been evaluated against the item and, if that had been done, the applicant would have qualified under the description "credit officer", particularly when that description is read as a guide only.
[10] I find no conflict between the lead statement of the description "credit officer" quoted above and the more detailed description that follows that lead statement. What the lead statement in fact does is highlight critical factors in the more detailed description. The visa officer, having determined that the applicant had no experience in respect of these critical factors, committed no reviewable error in determining that the applicant had no experience with the totality of functions of a credit officer within the description provided in the CCDO and in therefore awarding zero units of assessment for experience against that occupation.
[11] Whether or not there might have been included alternate or inherent occupations against which the applicant's experience could have been assessed was not an issue raised before me.
[12] Subsections 11(1) and (3) of the Immigration Regulations, 19781 read in part as follows:
| 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
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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 :
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| (3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
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(3) L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
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| if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
[emphasis added]
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s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de s'établir avec succès au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier. [Je souligne]
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[13] The factor set out in item three listed in column I of Schedule I is "experience". Thus, unless the applicant fell within either of the exceptions set out in subsection 11(1) of the Regulations, and they are not quoted because it was acknowledged before me that the applicant did not, or could be issued an immigrant visa by virtue of subsection 11(3) or (5), the visa officer made the only decision open to him on the facts of this matter that were before him. Once again, it was agreed that subsection 11(5) of the Regulations is inapplicable.
[14] In the paragraphs from the visa officer's decision letter that are quoted above, the considerations set out in subsection 11(3) were, I conclude, properly addressed. The visa officer determined not to exercise his positive discretion under that subsection and in so doing, made no reviewable error.
[15] Despite the arguments of counsel for the applicant to the contrary, I can find no basis on the record in this matter to conclude that the applicant was denied procedural fairness by the visa officer.
[16] For the foregoing reasons, this application for judicial review will be dismissed.
[17] Counsel for the applicant recommended certification of two questions in this matter in the following terms:
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1. Is a lead statement in an occupational description determinative of an assessment of work experience under factor three of the Immigration Regulations, 1978? |
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2. Are there any prerequisites for obtaining units of assessment for a second level degree other than obtaining the degree, in factor one, of the Immigration Regulations, 1978? |
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[18] Counsel for the respondent recommended against certification of any question. In light of my determination that the lead statement to the occupational description "credit officer" was not the sole element of the description relied upon by the visa officer in this matter, question one is not appropriate for certification. Question two relates to an issue argued before me on behalf of the applicant which, I conclude, was not central to the decision of the visa officer and which I therefore have not addressed in arriving at my decision. No question will be certified.
Judge
Ottawa, Ontario
February 18, 1998
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1 S.R.O./78-172 (as amended)
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