Mahatab v. Canada (Minister of Citizenship and Immigration), docket IMM-1206-00

Date: 20000918

Docket: IMM-1206-00

BETWEEN:

     MD. ABUL MAHATAB

    

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

TEITELBAUM, J:

[1]      The applicant challenges by way of judicial review the decision, dated February 8, 2000, made by visa officer Gregory Chubak of the Canadian High Commission in Singapore, in which the applicant's application for permanent residence in Canada was refused.

Background

[2]      The applicant, Mohammed Abul Mahatab, is a 42 year old citizen of Bangladesh. He applied for permanent residence in the independent category on April 29, 1997. He requested that he be assessed in his intended occupations of Accountant (CCDO 1171-Generally), Administrative Officer (CCDO 1179-182), and Bookkeeper (CCDO 4131-114).

[3]      On February 8, 2000, the applicant was interviewed at the Canadian High Commission in Singapore by visa officer Chubak.

[4]      According to the visa officer's affidavit,¹ on which he was cross-examined by applicant's counsel on May 28, 2000,² he reviewed with the applicant details of the applicant's education and training. The applicant has a Bachelor of Commerce degree and a Masters in Commerce degree from the University of Dhaka. He completed his articles as a Chartered Accountant in Bangladesh, but never wrote the required exams in order to receive his accreditation as a Chartered Accountant.

[5]      The visa officer determined that the applicant lacked the equivalent of the minimum training and entry or employment requirements required by the CCDO or NOC for the occupation of Accountant. The CCDO and NOC employment requirements for Chartered Accountants are a university degree, completion of a training program approved by the Institute of Chartered Accountants, several years of on-the-job training, and accreditation by the Institute of Chartered Accountants.

[6]      The visa officer proceeded to ask the applicant for details of his employment history so that he could be assessed under the alternate occupations listed in his application. In his affidavit and CAIPS notes,³ the visa officer states that the applicant referred to himself as a bookkeeper when describing his past positions. Since 1996, he had been with a firm that is a commissioned sales agent, where he maintained books, prepared basic financial statements, ledger entries, cash accounts, assisted with budget preparations, and supervised several subordinates. He described his previous job experience as involving similar work. He stated that he did not have any experience as an administrative officer, after the visa officer asked him whether he had any experience as a bookkeeper or administrative officer pursuant to the CCDO and NOC descriptions.

[7]      The visa officer determined that the applicant's employment experience was most consistent with that of bookkeeper. His experience, according to the visa officer, was not consistent with either administrative officer or accountant. The visa officer informed the applicant that his education, training, and experience were not consistent with either the CCDO or NOC requirements for accountant and that he did not meet that occupation's selection criteria.

[8]      The applicant was assessed under bookkeeper and earned 58 units under the NOC and 62 units under the CCDO, falling short of the required 65 units. In particular, the applicant was awarded 4 units, out of a possible 10, for personal suitability. The visa officer's reasons for this are as follows:

The Applicant was awarded four (4) units of assessment for personal suitability reflecting the amount [sic] adaptability, motivation, resourcefulness, and initiative shown. The Applicant had done less than a modicum of research into the Canadian labour market. The Applicant stated that he would seek work as a bookkeeper in Canada but he [sic] done no concrete research beyond sending his resume to a few employers. The Applicant was asked if he had any contingency plans to which he replied and confirmed that he had none. The Applicant stated and reiterated that he would rely on his sister and brother-in-law to assist in his job search. I asked the Applicant if he had made any inquiry about licensing requirements in Canada, to which he replied that he knew of the CGA but that he was aware that his qualifications were insufficient to meet any licensing requirements in Canada.4

[9]      In the cover letter which accompanied his application for permanent residence, the applicant requested the visa officer to exercise positive discretion, in his favour, according to subsection 11(3) of the Immigration Regulations, 1978 in the event he did not earn the required units for admission. The visa officer, however, declined to do so because, in his opinion, the assessment accurately reflected the applicant's likelihood of becoming successfully established in Canada.

[10]      At the close of the interview, the visa officer advised the applicant of the assessment and gave him an opportunity to address or rebut the visa officer's findings. The visa officer states that the applicant did not provide any additional information at that time.

Applicant's Position

[11]      The applicant contends that the visa officer erred by failing to formally assess the applicant in his intended occupations of Accountant⁵ (CCDO 1171-Generally) or Administrative Officer (CCDO 1179-182). The applicant submits that he must be formally assessed in each of the intended occupations he listed in his application for permanent residence.

[12]      The applicant submits that the visa officer erred by failing to properly assess the applicant's experience as an administrative officer. An applicant being assessed under this occupation is required to perform any combination of the duties set out in the definition. According to the applicant, he has three years' experience with budget preparation, analysing operating practices to implement cost reductions, and supervising and coordinating the activities of clerical workers, all of which are included in the occupational definition in CCDO 1179-182. The applicant contends that the visa officer improperly imported an additional requirement when he determined that the applicant's experience did not come within the CCDO definition because there was not a "significant degree of complementarity"⁶ between the applicant's experience and the definition.

[13]      The applicant argues, in his written submissions, that the visa officer erred by failing to properly assess the applicant with respect to Factor 9 of Schedule I of the Regulations. The applicant appears to take issue with the visa officer's failure to assess, or agree in cross-examination, that the units awarded--four--can be expressed as a ratio (4/10) or percentage (40%) of the applicant's likelihood of successfully settling in Canada.⁷ Furthermore, the applicant contends that the visa officer failed to properly consider evidence of a job offer with Century 21 in Ontario. This submission was not pursued by the applicant.

[14]      The applicant also submits that the visa officer erred by failing to properly consider whether to exercise positive discretion pursuant to subsection 11(3) of the Regulations. The applicant contends that the visa officer fettered his discretion by limiting his consideration to the same facts which he considered under personal suitability, instead of considering broader "good reasons." The applicant also contends that the visa officer considered whether to exercise his discretion before completing an assessment of all of the factors set out in Schedule I.

Respondent's Position

[15]      The respondent maintains that the visa officer did a full and complete assessment of the applicant with regard to his intended occupations. The visa officer's CAIPS notes and affidavit show that he did assess the applicant with regard to his intended occupations, but did not do a formal point assessment for accountant and administrative officer after determining that the applicant did not meet the occupational requirements. It would be unreasonable, according to the respondent, to have the visa officer continue the assessment in such circumstances.

[16]      The respondent denies that the visa officer imported an additional requirement of "significant degree of complementarity" between the applicant's experience and the duties as defined in CCDO 1179-182. The respondent submits that the visa officer considered the duties and requirements under the CCDO and considered whether the applicant had experience in any combination of the stated duties.

[17]      The respondent submits that the visa officer did not err when he failed to exercise positive discretion pursuant to subsection 11(3) of the Regulations. The section, which speaks of "good reasons", deals with economic factors or reasons relating to the applicant's ability to make a living and establish himself in Canada. The respondent maintains that there was nothing in the applicant's record which suggested there were any good reasons as to why the units of assessment did not accurately reflect the chances of successful establishment in Canada by the applicant.

Discussion

[18]      The applicant relies on Issaeva v. Canada (M.C.I.)⁸ and Birioulin v. Canada (M.C.I.)⁹ for the contention that the visa officer has a duty to assess all of an applicant's listed intended occupations. Madam Justice Reed considered these cases in Goussev v. Canada (M.C.I.) and held:

I do not understand this jurisprudence to require a visa officer to continue an assessment in a given occupational category after it has become clear that the Applicant cannot obtain the required number of points to be granted landing. For example, if there is a requirement that at least one point be awarded under a given factor, and the visa officer determines that the particular individual will be awarded zero under that factor, the visa officer is not required to continue a pointless exercise of evaluating the other factors. An assessment has been done.

The Issaeva and Birouilin cases speak to a situation in which an assessment, had it been completed, might have led to a conclusion that the Applicant could be awarded enough points to be granted landing.10

[19]      If the visa officer ascertains that an applicant does not meet the requirements for the intended occupation as set out in the CCDO definition, it is not unreasonable for the visa officer to hold that the applicant cannot be further assessed in that occupational category.¹¹

[20]      There is no dispute that the applicant lacked the necessary accreditation for Chartered Accountant. Based on the CCDO and NOC employment requirements for Accountant (CCDO 1171-Generally), and given his lack of accreditation, it would be impossible for the applicant to have met the occupational requirements. It was not unreasonable for the visa officer to decline to conduct a formal point assessment once the applicant's lack of accreditation was known.

[21]      With regard to the applicant's contention that the visa officer failed to properly assess the applicant's experience as an administrative officer, the CCDO definition of Administrative Officer (CCDO 1179-182) requires that an applicant perform any combination of the following duties:

Studies management methods and analyses operating practices to improve work flow, simplify administrative procedure and implement cost reductions, and makes recommendations to management. Prepares annual estimates of expenditures and maintains budgetary and inventory controls. Evaluates request for or change in accommodations and approves, proposes alternatives or rejects requests. Locates accommodation, and studies real-estate data to compare rental expenditure with purchase cost. Inspects building and office areas to evaluate suitability considering such factors as location, floor area, parking facilities and future expansion. Negotiates lease or purchase. Develops and sketches office layout to reflect management requirements. Consults with architect, contractors and others on a continuing basis to ensure scheduled occupancy. Supervises and coordinates activities of workers engaged in clerical and maintenance duties. Interviews job applicants, conducts orientation of new employees and implements training program. Reviews and answers correspondence.

[22]      The visa officer, in his sworn affidavit, states that he asked the applicant whether he had any experience as an administrative officer with regard to the CCDO and NOC definitions and occupational requirements. The applicant answered that he did not. The visa officer reviewed his work experience and concluded that it was not consistent with the CCDO and NOC, and that he did not meet the selection criteria for this occupation. Again, if the applicant's employment experience is not consistent with the occupational definition, there is nothing to be gained by having the visa officer continue with a point calculation.

[23]      Subsection 11(3) of the Regulations provides as follows:

11(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

(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,

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.

11(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

b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,

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 réussir leur installation 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.

[24]      Economic factors are the so-called driving force behind the exercise of discretion under this section. Economic reasons relate to the applicant's ability to make a living and establish himself or herself in Canada; this is a forward looking exercise.¹²

[25]      Nothing in the record indicates that the visa officer's failure to exercise positive discretion amounts to an error.

[26]      In conclusion, I am satisfied that the applicant has not established any errors on the part of the visa officer that would warrant judicial intervention.

[27]      The application for judicial review is denied.

[28]      Neither party had a question for certification.

                             "Max M. Teitelbaum"

                        

                                 J.F.C.C.

Ottawa, Ontario

September 18, 2000

__________________

¹Applicant's Application Record, pp. 71-75.

²Applicant's Application Record, pp. 77-103.

³Applicant's Application Record, pp. 8-10.

⁴Applicant's Application Record, pp. 73-74.

⁵Please note that the applicant refers to this as "Financial Officer."

⁶Applicant's Application Record, p. 90.

⁷Applicant's Application Record, pp. 96-97.

⁸(1997), 37 Imm. L.R. (2d) 91 (F.C.T.D.).

⁹(1999), 46 Imm. L.R. (2d) 178 (F.C.T.D.).

¹⁰(1999), 174 F.T.R. 140 (F.C.T.D.) at paras. 14-15.

¹¹See Cai v. Canada (M.C.I.), [1997] F.T.R. 31 (F.C.T.D.) and Raja v. Canada (M.C.I.) (1998), 145 F.T.R. 154 (F.C.T.D.).

¹²Kwong v. Canada (M.C.I.) (IMM-4955-98, September 7, 1999) (F.C.T.D.), Singh v. Canada (M.C.I.) (1995), 106 F.T.R. 66 (F.C.T.D.), Chen v. Canada (M.E.I.), (1995) 1 S.C.R. 725 (S.C.C.).