Date: 20011217
Docket: IMM-1550-00
Neutral Citation: 2001 FCT 1386
BETWEEN:
SUMONTO CHAKRAVARTY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review made pursuant to subsection 82.1(2) of the Immigration Act (the "Act") of the decision rendered by Visa Officer John Butt ("visa officer") dated January 28, 2000 wherein the visa officer refused the applicant's application for landing in Canada.
FACTS
[2] The applicant is a citizen of India who applied for landing in Canada in the independent category as a sales promotion administrator. His application was received at the Canadian High Commission in New Delhi, India on December 17, 1996.
[3] The applicant holds an undergraduate degree from Chaudry Charat Singh University (formerly Meerut University).
[4] The applicant also holds a diploma in Sales and Marketing Management from the National Institute of Sales (NIS) dated January 9, 1999 issued in Delhi.
[5] On January 27, 2000, the applicant attended an interview conducted by the visa officer at the Canadian High Commission in New Delhi.
[6] During the interview, the applicant was questioned as to his occupational experience and training, education and financial resources.
[7] The applicant told the visa officer that he had worked as a sales promotion administrator or sales promotion officer for Super Aquacem India Pvt. Limited. The applicant also told the visa officer that he had worked for another employer (Al Mawarid Food Group) in Saudi Arabia.
[8] The visa officer found the broad and vague descriptions of the applicant's employment history to lack credibility.
[9] The visa officer therefore did not find that the applicant qualified as a sales promotion administrator as described in the Canadian Classification and Dictionary of Occupations [CCDO 1179.154] nor as its equivalent of a Promotion specialist in the National Occupational Classification [NOC 1122.2].
[10] The visa officer did however assess the applicant in the occupation for which he did have relevant experience as a sales representative - construction supplies [CCDO 5131.126].
[11] The applicant was awarded a total of 68 units in this occupation and so, in a letter dated January 28, 2000, the applicant was advised that his application for permanent residence in Canada had been refused.
DESCRIPTION OF NOC OCCUPATION [NOC 1122],NOC CAREER HANDBOOK
[12] Management consultants perform some or all of the following duties:
| Analyse and provide advice on the managerial methods and organization of a public or private sector establishment;
Conduct research to determine efficiency and effectiveness of managerial policies and programs;
Conduct assessments and propose improvements to methods, systems and procedures in areas such as operations, human resources, records management and communications;
Conduct quality audits and develop quality management and quality assurance standards for ISO (International Organization for Standardization) registration;
Plan the re-organization of the operations of an establishment;
May supervise contracted researchers or clerical staff.
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Analyser et donner des conseils sur les méthodes de gestion et sur l'organisation d'une entreprise du secteur public ou privé;
Mener des études afin de déterminer le bon fonctionnement et l'efficacité des politiques et des programmes de gestion;
Effectuer des évaluations et proposer des améliorations aux méthodes, aux systèmes et aux procédures dans des domaines comme les opérations, les ressources humaines, la gestion des dossiers et les communications;
Effectuer des vérifications de la qualité et élaborer des normes de gestion de la qualité et de contrôle de la qualité aux fins d'inscription auprès de l'Organisation internationale de normalisation (ISO);
Planifier la réorganisation des opérations d'une entreprise;
Surveiller, au besoin, des chercheurs contractuels ou du personnel de bureau.
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[13] Advertising and promotion consultants perform some or all of the following duties:
| Assess characteristics of products or services to be promoted and advise on the advertising needs of an establishment;
Advise clients on advertising or sales promotion strategies;
Develop and implement advertising campaigns appropriate for print or electronic media.
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Évaluer les caractéristiques des produits ou des services à promouvoir et évaluer les besoins en publicité d'une entreprise;
Conseiller les clients sur les stratégies de publicité ou de promotion de vente;
Développer et mettre en oeuvre des campagnes de publicité appropriées aux médias imprimés ou électroniques.
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ISSUES
[14] Were the principles of natural justice and procedural fairness violated in this case since the visa officer did not confront the applicant with credibility concerns?
ANALYSIS
Standard of review
[15] First and foremost, it is necessary to determine the standard of review applicable to a visa officer's decision. In To v. Minister of Employment and Immigration, [1996] F.C.J. No. 696 (F.C.A.), the Court held:
[para 2] The appellant's application to enter Canada as an "entrepreneur" immigrant from Hong Kong gave rise to a discretionary decision on the part of the immigration officer which was required to be made on the basis of specified statutory criteria. The appellant's intention was of establishing a business in Canada. The "ability" so required was one of the relevant criteria.
[para 3] Here, the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms [1982] 2 S.C.R. 2">Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, were required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
Therefore, it would seem that the standard of review for a visa officer's decision is that of patently unreasonable.
Credibility concerns
[16] The applicant contends that the visa officer showed a negative finding of credibility in his CAIPS notes. Found at page 5 of the certified record, in CAIPS notes, the visa officer wrote the following:
Conclusion: Despite applicant s [sic] ability to recite a description of his duties as a sales promotion officer, I do not find his broad and vague descriptions credible. The bottom line is that he is a non-technical sales representative since his return from Saudi Arabia, and in Saudi Arabia he was a retail salesman.
His mark sheets show that he mets [sic] the qualifications for a B.A. degree, but for reasosns [sic] that I do not find credible, he has been unable to get the certificate or diploma. He has no evidence of his efforts to acquire the degree certificate, as he has never put his requests in writing.
His reasons for choosing Toronto are general and not specific, apart from the fact that his consultant operates there. He has not yet been able to put together evidence of his ability to produce settlement funds, although he applied to immigrate more than three years ago and has been previously convoked for interview. His lack of initiative in this matter does not augur well his capacity to successfully establish in Canada; personal suitability is poor 4 units.
[17] In Jiang v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1560 (F.C.T.D.), Lutfy J. stated at paragraph 4:
The principles of natural justice and procedural fairness apply to the visa officer's meeting with the applicant. The visa officer has a serious responsibility during such interview in assessing whether the applicant will be able to become successfully established in Canada. The visa officer must maintain a level of decorum conducive to an open and fair exchange, even in circumstances which must be sometimes difficult and trying. Similarly, for many applicants, particularly those from cultures substantially different from that of the person representing Canada, these interviews are also stressful. On balance, the visa officer, when challenged by inappropriate conduct by the persons being interviewed, must remain composed in maintaining an orderly meeting. The visa officer presides over the interview. As the decision-maker, the visa officer has the duty to provide, to the extent possible, a calm environment as the applicant attempts to meet the selection criteria.
[18] The visa officer, in the present case, did assess the applicant's ability to become successfully established in Canada and in so doing, discovered that the applicant lacked credibility. The visa officer's CAIPS notes provide a reflection of the impression of the applicant at the interview. Thus, a visa officer cannot be accused of breaching the principles of natural justice and procedural fairness because he noted his candid impression of an applicant in his CAIPS notes.
[19] In addition to this, the caselaw suggests that a visa officer is not required to provide the applicant with a "running score" of weaknesses in the applicant's application. In Liao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.1926 (F.C.T.D), I provided a detailed history of the relevant caselaw in this regard and held at paragraph 23:
The applicant states in her affidavit that the visa officer did not tell her that she thought that the applicant was more of a lecturer than an engineer nor that she had decided to give the applicant less than full credit for Experience as an engineer at the Institute. However, we have to bear in mind that the duty of fairness does not require the visa officer to provide the applicant with a "running score".
[20] Consequently, the applicant is unsuccessful in his argumentation in this regard as there is no evidence that a violation of the principles of natural justice and procedural fairness took place.
Work experience
[21] The visa officer found that the applicant's work experience was more closely to that of a sales representative than a promotion specialist. At page 3, paragraph 8, of his affidavit, the visa officer wrote:
[...] I was not satisfied that he had any experience as a sales promotion administrator as described in the Canadian Classification and Dictionary of Occupations [1179.154], or as a promotion specialist [National Occupational Classification [1122.2].
[22] After reviewing the applicable caselaw, I cannot find that the visa officer erred in concluding that the applicant had not performed a substantial number of the main duties of sales promotion administrator. The applicant made no mention of the many duties listed in the description of promotion specialist such as analysing and providing advice on the managerial methods, conducting research to determine efficiency and effectiveness of managerial policies and programs and finally, performing audits. In light of the evidence, the visa officer's conclusion was valid.
[23] The applicant failed to provide evidence so as to warrant this Court's intervention.
ORDER
THIS COURT ORDERS that this application for judicial review be dismissed.
The applicant suggested a question for certification:
Does the duty of fairness in Visa Officer decisions include a duty to indicate a concern regarding a response lacking in credibility?
The respondent submitted that the question proposed does not meet the test for certification.
In my view, the question suggested is not of general importance, and the existing jurisprudence is determinative of the question. Therefore, the question will not be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 17, 2001
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