Date: 20000307
Docket: IMM-5018-98
BETWEEN:
JOSEPH CORCILIUS D'SILVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON, J.
Introduction
[1] This is an application by Joseph Corcilius D'Silva (the "Applicant") for judicial review of a decision of a visa officer (the "Officer") dated August 13, 1998, in which the Officer refused the Applicant's application for permanent residence in Canada. The Applicant was assessed as a marine engine mechanic and as a rigger. The Applicant acknowledges that these assessments were conducted under both the Canadian Classification and Dictionary of Occupations (the "CCDO") and under the equivalent occupation in the National Occupational Classification Guide (the "NOC").
The Preliminary Motion
[2] Counsel for the Applicant made an oral motion at the outset of the hearing to strike the affidavit of Yagya Datt Malhotra sworn on January 7, 2000. Counsel argued that the affidavit was longer than twenty pages and was served by fax without prior consent contrary to Federal Court Rule 143.
[3] Counsel for the Respondent had no notice of the motion and, in particular, had no indication before the hearing that the Applicant's counsel would allege that he had failed to consent to service of the affidavit by fax.
[4] I dismissed the motion orally for two reasons. Firstly, I found that the Respondent was not given notice of the motion, and secondly, there was no evidence filed which showed that the Applicant's counsel had, in fact, failed to consent to service by fax.
The Proceedings
[5] The Applicant's counsel was given leave to file an amended memorandum of fact and law by Mr. Giles, A.S.P., in an order dated December 30, 1999. This was not done, and it clearly should have been done, as the arguments in the factum in the Court file bore little resemblance to those proposed for argument by counsel for the Applicant.
[6] Counsel for the Respondent, on learning in court of the proposed arguments for the first time, asked me to refuse to hear them. I declined this request. However, I said that, if the arguments were to be made, the adjournment would be for less than one week, a proper factum would be filed, and I would hear the matter from Vancouver by teleconference. I indicated that both counsel were responsible for the considerable delay to date and that the Applicant was entitled to a timely resolution of his appeal. Fortunately, the teleconference proved unnecessary. After two brief adjournments, counsel agreed to proceed on the basis that they would address only the three issues listed below.
The Issues
| [7] 1. Did the Officer err in assigning units of assessment based on the Applicant's age? |
| 2. If successful on Issue 1, is the Applicant entitled to have his assessment under the heading "Personal Suitability" increased by one point? |
| 3. Did the Officer err in assessing the Applicant's wife as a stenographer rather than as a secretary? |
Issue 1: Age
[8] The Applicant was born on March 1, 1949. The record discloses that, on February 28, 1996, when the Applicant was 46 years old, his application and related cheques were delivered by courier to the Canadian Consulate General in Detroit. However, the Respondent's computerized records note that his application was received on March 27, 1996. By then, the Applicant was 47 years old. March 27th is the date the Officer used to calculate the Applicant's age and, on that basis, he was awarded four points. The narrow issue is which date is the correct receipt date for the purpose of determining the Applicant's age. If the proper date was February 28, 1996, the Officer should have given the Applicant six points for his age.
[9] The Respondent relied on Operations Memorandum IS 93-24 of August 6, 1993. The relevant passage reads:
| As of October 1, 1993, Detroit and Buffalo will pilot the Area Processing Centre (APC)/Satellite office concept. Detroit will become an immigration selection office for Buffalo and, accordingly, all new immigration cases will be assigned to Detroit by Buffalo. Therefore, all sponsorships and job offers for Detroit's former area of jurisdiction must be forwarded to Buffalo. Detroit will continue to provide all non-immigrant processing services. |
I read this passage as indicating that, while the Detroit office still retained the ability to accept immigrant applications, it no longer had jurisdiction to process them. Processing was to occur in Buffalo.
[10] Nothing in Operations Memorandum IS 93-24 indicates that applications were not going to be treated as received until they reached Buffalo. As well, there is no material filed by the Respondent which shows that prospective Applicants or their advisors were notified that, although applications could be delivered in Detroit, they would not be considered as received until they arrived in Buffalo for processing.
[11] In my view, as far as the Applicant could tell, the Respondent had possession of his application and the required fees on February 28, 1996. In Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763 at 767, MacGuigan J.A. observed that to use any date except the date on which the application was delivered would be purely arbitrary and subject to the vagaries of the Respondent's administrative process. In this case, the application would be subject to whatever invisible administrative procedures were involved in the four weeks it took to transfer the Applicant's application from Detroit to Buffalo.
[12] In Mou v. Canada (Minister of Citizenship and Immigration) (1997), 125 F.T.R. 203, Lutfy J. (as he then was) at paragraph 16 noted that, in June 1996, Citizenship and Immigration Canada published the "Immigration Manual - Overseas Processing". It provided in chapter OP1, at paragraph 3.4.1, under the heading "General Procedural Guidelines", that:
| The lock-in date is the day the Department has physical possession of either an application for permanent residence in Canada (IMM-8) or if applicable, an undertaking to sponsor (IMM-1344), as well as the correct and complete fees (cost recovery processing fees and Right of Landing Fee). |
I have concluded that, as long as the Respondent accepted applications in Detroit and did not notify potential applicants that other acceptance dates would be used, the Applicant was entitled to rely on February 28, 1996, as the "lock-in" or acceptance date for his application. Accordingly, he was 46 years old when his application was delivered/accepted, and he should have been given two more points for his age than he was given by the Officer.
Issue 2: Personal Suitability
[13] The Applicant submits that if, as I have found, he was entitled to two more points for his age, then he is, consequently and automatically, entitled to one more point for personal suitability. The Officer gave the Applicant six points for personal suitability. Both parties agreed that this assessment was within the normal range. However, had the Applicant been given seven points, his application for permanent residence would have been successful.
[14] While I am sympathetic to an Applicant whose application fails by one point, I can see no basis for assuming that, if the Officer had realized that the Applicant was entitled to be treated as being one year younger, he would have changed the Applicant's personal suitability assessment. The Applicant's motivation, adaptability, resourcefulness and initiative are among the criteria to be assessed under personal suitability. I can find no basis for assuming that an assessment of such factors would automatically alter, either because an applicant was 46 instead of 47 years old or because an applicant was one point short of success.
Issue 3: Mrs. Joyce D'Silva
[15] The Officer also assessed Mrs. D'Silva because the Applicant's letter of application dated February 15, 1996, asked that this be done. The Respondent submitted that the Officer's decision about Mrs. D'Silva was not subject to review because he was not obliged to assess her application. I agree that, by reason of Section 8(1) of the Immigration Regulations, 1978, SOR/78-172, as amended, the Officer is under no obligation to make an assessment of anyone other than the principal applicant. However, counsel for the Respondent conceded that the Officer had jurisdiction to conduct the assessment. I am therefore of the view that, once the assessment was undertaken, the Officer's decision about Mrs. D'Silva became subject to judicial review.
[16] The Applicant alleges that his wife should have been assessed as a "secretary" under the CCDO and NOC. Mrs. D'Silva's letter of reference and her related hiring letter show that, from 1990 to 1995, she worked at a hospital equipment company as an "office secretary". However, the record is not clear about her title at Lamina Suspension Products, where she worked from April 1995, to at least the date of her interview in May of 1998. Her letter of reference dated May 20, 1998, describes her as an "office secretary" but her hiring letter of April 12, 1995, describes her as an "office assistant".
[17] Unfortunately, none of the written material Mrs. D'Silva submitted discusses the nature of her duties. The material only gives her titles. It is clear from the Officer's computerized notes and from Mrs. D'Silva's affidavit of October 16, 1998, that the Officer discussed Mrs. D'Silva's letters of reference and her duties with her during her interview and was not satisfied that she actually performed the duties of a secretary. I say this because, at the interview, the Officer asked Mrs. D'Silva to provide her hiring letters and she later did so.
[18] The onus was on Mrs. D'Silva to satisfy the Officer both that she held the title of "secretary" and that she performed secretarial duties. She did not meet this onus and I can find no error in the Officer's conclusion that, in spite of her titles, she did not function as a secretary. I am also confident that Mrs. D'Silva was aware that this was an area of concern since the Officer asked to see her letters of appointment.
[19] Finally, in the absence of any independent evidence before the Officer about Mrs. D'Silva's actual duties, I am not prepared to find that the Officer erred in assessing her as a stenographer rather than an office assistant. Further, it was not demonstrated that the difference was potentially material. There was no occupational demand for a stenographer, and I was not shown that any demand exists for an office assistant.
Conclusion
[20] For all these reasons, the application will be dismissed.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
March 7, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5018-98
STYLE OF CAUSE: JOSEPH CORCILIUS D'SILVA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: February 18, 2000
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER BY: SIMPSON J.
DATED: March 7, 2000
APPEARANCES: Ms. Mary Lam
for the Applicant
Ms. Geraldine MacDonald
for the Respondent
SOLICITORS OF RECORD: Mary L.F. Lam
Barrister & Solicitor
808 - 255 Duncan Mill Rd.
Don Mills, Ontario M3B 3H9
for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario
for the Respondent
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