Date: 20030304
Docket: IMM-2793-01
Neutral citation: 2003 FCT 272
BETWEEN:
ABDUS SALAM SHEIKH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKay J.
[1] The applicant seeks judicial review of, and an order setting aside, the decision of a visa officer at the Canadian High Commission in London, who refused his request for reconsideration of the rejection of his application for permanent residence in Canada as a member of the independent category under the Immigration Act, R.S.C. 1985, c. I-2, as amended, and the regulations thereunder.
[2] Mr. Sheikh's application was that he be assessed as a Contractor and Supervisor, Mechanic Trades under the National Occupation Classification ("NOC") 7216.0. After considering his application, the visa officer assessed him under Schedule 1 of the Regulations, which provided for assessment of various qualifications. He was assigned 5 units in the education category, and 4 units in the experience category, with a total for all categories of 54 units. That was less than the 70 units required for admission, and less than the 60 units required for an interview so that the assessment of his application was completed on the basis of a review of the documents submitted. He was then advised by letter on November 30, 2000 that he was inadmissible and his application was refused since he obtained insufficient units of assessment to qualify for immigration to Canada.
[3] By letter in December 2000, Mr. Sheikh questioned the refusal with particular reference to the assessment of his education and experience. The visa officer reviewed his file, reconfirmed her assessment of those two factors and a letter reconfirming the refusal was sent on January 8, 2001. In that letter, the officer advised that:
Even if 10 points were awarded for education, you would still have insufficient points to qualify.
Again his assessment was questioned by letter of February 17th, which urged that since he was a high school graduate and held a diploma in his field of expertise he should be awarded 13 points for his education. Mr. Sheikh was again advised, by letter of March 23, 2001, that the decision made in his case, to reject his application, was reconfirmed.
[4] By this application for judicial review, the applicant raises questions concerning the officer's assessment of his education and experience. He also raises an issue of alleged unfairness in the process of considering his application.
Points Assessed for Education and Experience
[5] The visa officer assigned 5 points for education, in accord with her assessment of the documents submitted relating to his education and in accord with Schedule 1 of the Regulations which provides for 5 units where a diploma from a secondary school has been obtained, but it does not lead to entrance to university and does not include trade or occupational certification in the country of study. It is urged that he should have been assessed on the basis of completion of a diploma or apprenticeship certificate program requiring at least one year of full time classroom study in a post-secondary institution for which, as a condition of admission, completion is required of secondary school with a diploma that does not lead to entrance to university. The latter is specified as qualifying for 13 units.
[6] For the applicant, it is urged that the officer's conclusions about the type of high school diploma and trade certification completed by the applicant were contrary to the documentary evidence submitted with the application. In support of that, it is said that on his application form, he indicated that he had "both a formal trade certification and a non-university certificate or diploma". As I read his application form, it does indicate a "high school cert." at the Government International College and an "AC/Refrigeration diploma" at the Classic Engineering Training Centre, both in Chittagong, Bangladesh. Those entries do not, in my opinion, indicate completion of full-time studies leading to completion of trades training with certification. It is true the courses completed in his refrigeration program are listed on his diploma, but there is no indication in the documents whether those courses were full-time or constituted a certification for a trade. While the applicant may have understood his educational qualification would bring him within a higher level than the units assigned, that understanding was not conveyed clearly by the documents submitted and in my opinion, the visa officer's assessment was not unreasonable on the evidence before her.
[7] In assessing points for experience, the visa officer considered that the information provided in writing by the applicant indicated that he had worked as a plant foreman from September 1, 1998 to the date of the screening of his application in November 2000, and that the applicant acknowledged this in his letter of December 2000 requesting reconsideration, when he stated:
. . . Whilst I appreciate that on 'paper' I have been awarded the title of 'Plant Foreman' for the past 27 months, if I had been given the opportunity of an interview, I have documentary evidence . . . to prove that I have been carrying out the duties of a Foreman for the past 7 years.
In the curriculum vitae submitted with his application, he indicates that from "04.1993 to present", he was employed by Ghazwa Co. for Mech. and Elec. Works, and currently as Plant Foreman. But that employer, in a letter of recommendation, indicated that from March 1994 to August 1998, he was employed as "H.V.A.C. technician", but only from September 1998 as plant foreman. On the basis of this evidence, I cannot conclude that the officer's assessment was unreasonable. In earlier employment he did supervise some other workers but he does not claim, apart from the sentence quoted above, to have performed many of the main duties in the NOC description for his intended occupation.
[8] Counsel for both parties agreed that the appropriate standard of review in considering assessment of units in relation to the factors judged under Schedule 1 is whether or not the conclusions of the visa officer were patently unreasonable. In my opinion, on the evidence before her in this case, the visa officer's assessments cannot be said to be of that nature, and there is no basis for the Court to intervene with regard to those assessments.
Alleged Unfairness in the Process
[9] It is urged that the visa officer breached the duty of fairness owed to the applicant by failing to inform herself about his educational background and providing him with an opportunity to respond to her concerns about that and about his experience as a plant foreman. It is urged that the visa officer had a duty to familiarize herself with the educational institutions in Bangladesh before passing judgment on his educational qualifications. There are cases where the Court has found unfairness in the process where educational attainments have not been appropriately considered but in my view the circumstances of this case do not indicate that any duty of fairness owed to the applicant was breached. In words of Mr. Justice Evans in Madan v.Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1198 (QL), 172 F.T.R. 262 (T.D.):
. . . it is the responsibility of a visa applicant to put before the officer all the material necessary for a favourable decision to be made. Hence, visa officers are under no general legal duty to ask for clarification or for additional information before rejecting a visa application on the ground that the material submitted was insufficient to satisfy the officer that the applicant had met the relevant selection criteria.
[10] In my opinion, the visa officer did not breach any duty of fairness owed to the applicant in this case.
Conclusion
[11] Since I am not persuaded that the visa officer was unreasonable in the assignment of units for education and experience in rating the applicant, and I am not persuaded there was any breach of a duty of fairness owed to the applicant, an order goes dismissing this application for judicial review.
[12] No question was proposed, and none is certified as a serious question of general
importance pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 1.
"W. Andrew MacKay"
JUDGE
OTTAWA, Ontario
March 4, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2793-01
STYLE OF CAUSE: ABDUS SALAM SHEIKH
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: Thursday, July 18, 2002
REASONS FOR ORDER : The Honourable Mr. Justice MacKay
DATED: March 4, 2003
APPEARANCES:
RODERICK H. ROGERS FOR THE APPLICANT
MELISSA CAMERON FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART McKELVEY STIRLING SCALES FOR THE APPLICANT
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
Email this Content