Huong v. Canada (Minister of Citizenship and Immigration), 2004 FC 73

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2004 FC 73

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Date: 20040119

Docket: IMM-810-02

Citation: 2004 FC 73

BETWEEN:

SEAN MICHAEL HUONG,

Applicant,

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1] Mr. Huong's application for permanent residence in Canada was denied by a visa officer on January 30, 2002. He had applied to immigrate under the now defunct Family Business Program pursuant to the former Immigration Act, R.S.C. 1985, c. I-2 (the Act) as a watch repairer and jeweller at Ngoc Chau Jewellery, his family's jewellery store in Toronto, Ontario.

[2] Mr. Huong and his wife were born in Vietnam, but are residents and naturalized citizens of the United States. Their children are American citizens. All other members of Mr. Huong's family live in Canada.

[3] Mr. Huong first entered Canada as a visitor in 1993 and remained until 1995, working illegally at Ngoc Chau. He was issued an exclusion order in 1995 and left Canada for the United States. He applied for permanent residence under the Family Business Program in 1997 as a manager for Ngoc Chau. His application was denied on the basis of lack of aptitude for store management.

[4] Since 1999, Mr. Huong has visited Canada, but officially lived in California. He again received approval under the Family Business Program in March, 2000 and again applied for permanent residence. He was interviewed at the Canadian Consulate in Detroit.

[5] Mr. Huong received 66 units of assessment and thus fell short of the 70 units required for landing. The refusal letter contains the visa officer's reasons for denying the application. The relevant paragraphs state:

A total of seventy units of assessment is required to qualify for immigration to Canada. You have obtained insufficient units of assessment. Pursuant to section 9(1)(b)(i) of the Immigration Regulations, 1978, you have failed to obtain at least 70 units of assessment, the minimum number required to comply with the selection criteria for immigration to Canada. You are therefore not a person to whom I may issue an immigrant visa in accordance with section 9(4) of the Immigration Act, and so your application has been refused. The fact that I was unable to award you units of assessment for the factor of experience also renders you inadmissible. I was unable to award you units of assessment for occupational factor as I was not satisfied that you have performed the functions of a jeweller and watch repairer.

At interview you did not display a fluent ability to speak English. Throughout your interview questions had to be repeated and rephrased. You displayed poor articulation and enunciation. You were asked to read the NOC description of jeweller. Based on your speaking, reading and writing abilities, you were awarded seven units of assessment for English language ability.

You were asked to describe in detail your education, training and experience as a jeweller and watch repairer. You had difficulty doing so. I was unable to conclude you possess any formal training or education in these occupations. You were asked specific questions to assess your knowledge as a jeweller. Based on your answers I was not satisfied that you have performed the functions of a jeweller as per the NOC description. You stated at interview that you were not a jeweller. You stated you were able to repair watches. You were unable to satisfy me that you possess any formal training or education as a watch repairer or that you would be able to obtain a watch repairer certificate which is compulsory in the province of Ontario. I was unable to conclude you have performed the functions of a watch repairer as per the NOC description or that you meet the employment requirements of this profession.

I am of the opinion that the points awarded to you, accurately reflect your chances for successful settlement in Canada. Considering factors such as initiative, resourcefulness, motivation and adaptability, I am unable to conclude you will successfully establish in Canada.

[6] Mr. Huong requests that I set aside the visa officer's decision. After considering his submissions, I have determined that his allegations of error by the visa officer are without merit and that the application should be dismissed.

[7] Mr. Huong submits that the visa officer breached the duty of procedural fairness in failing to ask about his experience as a watch repairer, other than whether he had a certificate, in failing to alert him regarding her doubts about his experience and whether he could engage in his intended occupation without a certificate, and in breaking her promise to give him an additional 30 days to submit documentation.

[8] The visa officer's affidavit and the Computer Assisted Immigration Processing System (CAIPS) notes reveal that the officer did explore Mr. Huong's aptitude as a watch repairer. She questioned him about his training, reviewed the National Occupational Classification (NOC) with him and invited his comments, and asked him to describe his work as a watch repairer. Although there is no duty on a visa officer to apprise an applicant with respect to concerns that arise directly from the Act or the Regulations (Chou v. Canada (Minister of Citizenship and Immigration) (1998), 148 F.T.R. 245 (T.D.); Wang v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 266 (T.D.); Duan v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1651 (T.D.)), the visa officer did express her concerns both during and at the end of the interview.

[9] The NOC indicated that a watch repairer certificate was required in the province of Ontario. It is common ground that such a certificate is not required. However, whether Mr. Huong had a watch repairer certificate was not determinative of his application because the officer also considered his education, experience and training. With or without a certificate, Mr. Huong did not satisfy the visa officer that he could perform the duties of the occupation of watch repairer. The CAIPS notes disclose that Mr. Huong was questioned at least twice about his education and training as a watch repairer. The visa officer also prompted him to discuss the repair work he had done out of his home, but he was vague: "some repairs at times".

[10] The argument that the visa officer relied on extrinsic evidence to refuse his application as a jeweller, when she requested that he demonstrate his knowledge by examining a diamond ring, was not contained in Mr. Huong's written submissions. It is not open to an applicant to recast his arguments at the hearing. Where an issue is not contained in the applicant's memorandum, counsel for the respondent has no opportunity to respond and it is not appropriate for the court to decide it: Coomaraswamy et al. v. Canada (Minister of Citizenship and Immigration) (2002), 289 N.R. 137 (F.C.A.); Kioroglo et al. v. Canada (Minister of Citizenship and Immigration) (1994), 86 F.T.R. 87 (T.D.); Qureshi v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 9 (T.D.); Kazi v. Canada (Minister of Citizenship and Immigration) (2002), 222 F.T.R. 132 (T.D.). Even if this were not the case, the argument is of no consequence in the face of Mr. Huong's admission that he was not a jeweller.

[11] The visa officer denies that she offered Mr. Huong 30 days within which to submit further documentation. She attests that had she done so, it would appear in the CAIPS. It does not. I accept the visa officer's evidence in this respect.

[12] Mr. Huong also submits that the visa officer ignored relevant evidence of aptitude as a watch repairer, specifically, the letter from Movado and the notes of the previous visa officer. This argument fails for three reasons.

[13] First, it is within the visa officer's discretion to assess an applicant's experience on the basis of the applicant's representations at the interview and to assign less weight to written documents: Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262 (T.D.); Kalia v. Canada (Minister of Citizenship and Immigration) 2002 FCT 731, [2002] F.C.J. No. 998; Atangan v. Canada (Minister of Citizenship and Immigration) 2002 FCT 752, [2002] F.C.J. No. 1017; Malik v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1050 (T.D.).

[14] Second, the notes of the previous visa officer, even if considered, would not have been of value. The previous officer noted that Mr. Huong had work experience at Ngoc Chau and out of his home. His previous application was considered in the context of a managerial position, rather than a watch repairer or a jeweller. The previous officer was assessing Mr. Huong's managerial experience and noted his professed work experience as it related to her concerns. She did not consider its veracity in the context of the managerial position because it was not relevant to that position. It was incumbent on the visa officer, in this application, to independently assess Mr. Huong's application on the basis of the evidence she had before her: Baber v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1077, [2001] F.C.J. No. 1480; Parmar v. Canada (1997), 139 F.T.R. 203 (T.D.); Stanislaus v. Canada (Minister of Citizenship and Immigration) 2003 FCT 529, [2003] F.C.J. No. 690. That is precisely what she did.

[15] Third, visa officers are afforded considerable discretion in determining whether an applicant satisfies the requirements for a given occupation, including their interpretation of the provisions of the NOC. They have a familiarity with and understanding of this document that is at least equal to, and will often exceed, that of a reviewing court: Madan, supra.

[16] Mr. Huong also takes issue with the award of 2 units of assessment for personal suitability and suggests that it is perverse. The visa officer considered his initiative, resourcefulness, motivation and adaptability and found him to be well below average. Mr. Huong had been unemployed for the previous five years, attended the interview without much of the required supporting documentation, stated that he wanted to come to Canada because of his parents, and could not respond to questions regarding his application because his brother had completed it. I cannot fault the visa officer's assessment.

[17] Even if the visa officer had erred, it could not have made a difference for Mr. Huong. Subsections 11(1) and 11(3) of the Immigration Regulations, 1978, SOR/78-172 (the Regulations), operate as a bar to the issuance of a visa where an applicant fails to obtain any units of assessment with respect to the experience factor or fails to obtain at least one unit of assessment for the occupational factor.

[18] The application for judicial review is dismissed and an order will so provide. Counsel posed no question for certification. This matter raises no question appropriate for certification.

__________________________________

Judge

Fredericton, New Brunswick

January 19, 2004

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET: IMM-810-02

STYLE OF CAUSE: SEAN MICHAEL HUONG v. MINISTER OF CITIZENSHIP AND IMMIGRATION

DATE OF HEARING: January 15, 2004

PLACE OF HEARING: Toronto, Ontario.

REASONS FOR ORDER BY: Madam Justice Layden-Stevenson

DATED: January 19, 2004

APPEARANCES BY: Mr. Calvin Huong For the Applicant

Mr. Stephen Jarvis

For the Respondent

SOLICITORS OF RECORD: Mr. Stephen Nguyen

Toronto, Ontario

For the Applicant

Mr. Stephen Jarvis

Department of Justice Ontario Regional Office.