Date: 20001208
Docket: IMM-5905-99
Ottawa, Ontario, this 8th day of December 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
NARINDER DEV SHARMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] The applicant, Mr. Narinder Dev Sharma, has applied for judicial review of the decision of Carolyn Wallace, a visa officer, dated September 30, 1999, in which she denied the applicant's application for a visa under the assisted relative category.
[2] The applicant has a family job offer to work as the manager of Sammy's Carpets, a business owned by the applicant's sister-in-law and her husband. The family job offer was submitted to the Family Business Section of Citizenship and Immigration in Vancouver, and was approved on July 21, 1998. On September 22, 1999, the visa officer interviewed the applicant.
[3] The applicant was assessed in accordance with subsection 8(1) of the Immigration Regulations, 1978 (the "Regulations"), against the requirements for Sales Manager [NOC 0621] in the National Occupational Classification. The visa officer awarded the applicant the following units:
Total 42
[4] The applicant was awarded a total of 42 units. Paragraph 10(1)(b) of the Regulations requires that the applicant obtain at least 65 units of assessment, awarded in accordance with subsection 8(1) of the Regulations, in order to qualify for an immigrant visa under the assisted relative category. Given that the applicant did not have the required total, the visa officer denied his application.
[5] The departmental materials in use at the time, established the requirements for "arranged employment" under Schedule I of the Regulations. They were as follows:
| 1) the relationship between the prospective immigrant and the operator of the business in Canada must be as described in the family class or assisted relative definitions in the Immigration Regulations, 1978; |
| 2) the job offer must be bona fide and offer reasonable prospects of continuity; |
| 3) wages and working conditions are normal for the occupation in the area where the family business is located; |
| 4) the business must have been in a viable operating position for at least one year; |
| 5) there is an aspect to the job which makes a relative a logical choice for that position; |
| 6) the prospective immigrant has in his work experience and aptitudes sufficient abilities to indicate he could successfully fill the position. |
[6] Applying these criteria to the applicant's situation, the visa officer's assessment was as follows:
| ... You do not have any directly related work experience and I have determined that you do not possess the skills, training or aptitude required for this position. During interview you did not demonstrate the type of motivation, initiative and resourcefulness that would be expected of someone in a position such as has been proposed for you in the Family Business Job Offer. |
...
| According to you, you have no experience in a position involving supervision of other individuals... |
[7] Based on her finding that the applicant did not possess the skills for his arranged employment, the visa officer awarded no units for "arranged employment".
[8] The visa officer also gave no units for "experience". According to subsection 11(1) of the Regulations, a visa cannot be issued to any applicant who receives no units for experience, unless the applicant has arranged employment and the visa officer is satisfied that the person can perform the work. Given that the visa officer gave the applicant no units for experience, and assessed him as not possessing the requisite abilities to perform the job in Canada, the application was doomed.
LEGISLATION
[9] The statutory and regulatory provisions applicable to this issue are the following:
Immigration Regulations, 1978
10. (1) Subject to subsections (1.1) and (1.2) and section 11, where an assisted relative makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the assisted relative and accompanying dependants of the assisted relative if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
(b) in the case of an assisted relative who intends to reside in a place other than the Province of Quebec, on the basis of an assessment made in accordance with section 8, the assisted relative is awarded at least 65 units of assessment; and...
Règlement sur l'immigration de 1978
10. (1) Sous réserve des paragraphes (1.1) et (1.2) et de l'article 11, lorsqu'un parent aidé présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'aux personnes à sa charge qui l'accompagnent si les conditions suivantes sont réunies :
a) le parent aidé et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement;
b) dans le cas du parent aidé qui entend résider au Canada ailleurs qu'au Québec, sur la base de l'appréciation visée à l'article 8, le parent aidé obtient au moins 65 points d'appréciation;
11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant
(a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience; or
(b) is qualified for and is prepared to engage in employment in a designated occupation.
11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant :
a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou
b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire.
(2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless
11(2) Sous réserve des paragraphes (3) et (4), l'agent des visas ne délivre un visa en vertu des articles 9 ou 10 à un immigrant autre qu'un entrepreneur, un investisseur, un candidat d'une province ou un travailleur autonome, que si l'immigrant :
(a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I;
(b) the immigrant has arranged employment in Canada; or
(c) the immigrant is prepared to engage in employment in a designated occupation.
a) a obtenu au moins un point d'appréciation pour le facteur visé à l'article 4 de la colonne I de l'annexe I;
b) a un emploi réservé au Canada; ou
c) est disposé à exercer une profession désignée.
[10] A review of these provisions shows that the admission of an assisted relative to Canada is facilitated to the extent of reducing the score which an applicant must achieve on the Schedule I rating scales from 70 to 65 (Regulations, paragraph 10(1)(b)). Applicants who have arranged employment can avoid the effect of the provision that they must score at least one under Items 3 and 4 of Schedule I (Regulations, subsections 11(1) and (2)) providing that the visa officer is satisfied that the applicants can do the job which is being held for them.
[11] The objective of the Family Business program is to expand the opportunities for family reunification. It is meant to provide an opportunity for a Canadian citizen or permanent resident to bring to Canada a member of his/her family when it can be demonstrated that it is more sensible to employ a family member rather than using normal recruiting practices to find an employee. This will normally occur where the job requires trust that exists among family members and which is not readily found among those not bound by family ties.
[12] The applicant complains that the visa officer failed to take these factors into account. He complains that the visa officer has applied a standard which would defeat the purpose of the Family Business program.
ANALYSIS
[13] The applicant complained that the visa officer committed certain specific errors.
Language
[14] At the interview, the visa officer determined that the applicant was having difficulty communicating basic information. The visa officer then expressed concern regarding the applicant's ability to manage a carpet store, and the applicant responded that 90% of the clientele speak Hindi or Punjabi. When asked how the applicant would deal with sub-contractors or officials who speak English, he replied that he would learn English immediately. In the course of the interview, the visa officer informed the applicant that she has assessed his English speaking abilities as "with difficulty".
[15] The applicant argues that the visa officer should not have imported language abilities into the assessment of the applicant's ability to perform his job in Canada. The applicant submits that this is double counting, which is an error of law.
[16] In my view, the visa officer did not double count language ability. It appears to be settled law that language can be considered in relation to the applicant's ability to establish himself in his intended occupation (Hanna v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 51; Stefan v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1793, (1995), 35 Imm. L.R. (2d) 21.
Assessment of capacity to do job
[17] The applicant's arranged employment was as Sales Manager in a carpet store owned by his sister-in-law. The visa officer determined that the applicant had no experience as a Sales Manager [NOC 0621]. She came to this conclusion after considering that the applicant had been self-employed from August 1976 until June 1997 as the owner of two small businesses. The visa officer noted that the applicant ran both of these businesses out of the same premise, and had no employees. The visa officer also considered the applicant's current employment as a salesman with a company called Indo American Marketing Co. and noted that he is not responsible for the supervision of employees nor management.
[18] The applicant argues that the visa officer did not adequately consider the applicant's experience with his businesses, the "Narindra Watch House" and the "Narindera Bakery". It is the applicant's position that these businesses required planning, directing operations, determining which merchandise should be sold, and planning budgets. While that may be so, the description which is given of these businesses makes them sound comparable to a kiosk-style operation as opposed to a multi-employee business.
[19] The standard of review of overseas visa officer decisions is reasonableness simpliciter. See Gupta v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1099, (2000), 6 Imm. L.R. (3d) 231 (Gibson J.) Some of the duties listed in NOC 0621 include managing staff, developing marketing strategies, and hiring or overseeing staff. The visa officer considered whether the applicant's experience was relevant to these duties and concluded that it was not. The visa officer's CAIPS notes at page 7 reveal the visa officer's reasoning:
[The applicant] has no management experience and no supervisory experience. The bulk of
his experience was running first a small watch shop/repair and then selling pre-made baked
goods. Only recently he switched to selling carpets. His sales experience here is limited and
may not be entirely relevant to the CND job he is supposed to be taking as sales manager/
possibly running a store on his own.
[20] It is my opinion that the visa officer's assessment cannot be characterized as unreasonable.
Personal Suitability
[21] In the course of the interview with the applicant, the visa officer asked factual questions concerning the geography of Canada, the amount of money the applicant would earn, and the employability of the applicant's wife. According to the applicant, this line of questioning, has little or no relation to adaptability, motivation, initiative, resourcefulness and other similar qualities which should be considered under the personal suitability factor.
[22] The ambit of the visa officer's discretion in assessing personal suitability was set out by Simpson J. in Khan v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 298 at 301 where she said:
| ... unless I can find that the Officer exercised her discretion inappropriately by overlooking relevant factors or by placing undue emphasis on particular factors or in some way acting unfairly, I am not in a position to second-guess her exercise of discretion. |
[23] The visa officer considered the applicant's motivation and resourcefulness by questioning the applicant's knowledge of Canada. The visa officer noted that the applicant often replied that he would learn what he needed after arriving in Canada. It is not uncommon for visa officers to consider the steps that applicants have taken to prepare themselves to come to Canada as an indicator or initiative and resourcefulness. In this case, the applicant appeared to have done little to prepare himself for a new life in Canada. The visa officer's assessment of the applicant's initiative, motivation and resourcefulness was not unreasonable.
Minimum units of assessment
[24] But there is a more fundamental reason for the applicant's failure to meet the requirements of section 10 of the Regulations. An applicant under the assisted relative program must score at least 65 points under the rating scheme provided in Schedule I to the Regulations. The applicant is assisted in this regard by being awarded 10 points for arranged employment, provided the visa officer is satisfied that the applicant can do the job. In this case, the applicant scored 42 points, and received no points for arranged employment due to the visa officer's opinion that he lacked the ability to do the job being held for him.
[25] Of the nine factors to be considered under Schedule I, age, education, specific vocational preparation, occupational factor, and demographic factor, are objective factors, that is, the value to be assigned to those items is either prescribed or involves applying a formula to certain facts to arrive at the number of points to be assigned. In this case, the total of those five items was 36 points. In order to succeed, the applicant needed to score a further 29 points with respect to language, arranged employment, experience and personal suitability. While objection is taken to counting language under the heading of personal suitability, no serious challenge was made to the score awarded to the applicant for his knowledge of English. The remaining items are experience (maximum points 8), arranged employment ( maximum points 10) and personal suitability (maximum points 10). Had the applicant scored the maximum in each of these categories, he would have exceeded the minimum requirement of 65 points by 1 point.
[26] The difficulty is that the applicant is unable to accumulate any points for experience because the occupational factor for his occupation is zero. According to Item 3 in Schedule I, experience accumulates according to the score for occupational demand in the applicant's chosen occupation. There is no provision for experience to accumulate when the score for occupational demand is zero. As a result, a score of 0 in occupational demand necessarily means a score of 0 for experience. Consequently, this application was bound to fail since even the maximum score on personal suitability (10) and arranged employment (10) would still leave the applicant with less than the required 65 points.
[27] To that extent, the visa officer's assessment of the applicant's ability to do the job is academic since the applicant would not qualify for entry even if it were shown that he could do the job because he could not score 65 points on the rating scale.
[28] This is the point at which counsel for the applicant argues that this analysis defeats the entire purpose of the Family Business policy. This is a case in which the applicant's wife is the last member of her family in India. The employment of the applicant is being offered within a family business where his failings, whatever they are, would be covered by other members of the family. To say that he must be able to manage the business in the same way, that a stranger to the family would have to manage it, is to deny the reality of the situation. The visa officer's discretion should be exercised to advance the policy of the Family Business program.
[29] There is some merit in counsel's submissions but they amount to an argument that the program should be more liberally administered than the legislation contemplates. The requirement that the assisted relative score 65 points is an indication that, while Parliament was prepared to accommodate family reunification, it has chosen to retain to a considerable extent the same requirements which are imposed on fully independent immigrants. The allocation of 10 points for arranged employment is qualified by the requirement that the immigrant be able to satisfy a visa officer that he/she can do the job. Counsel's argument is an attempt to undermine this requirement by suggesting that the visa officer should be easily satisfied given the objective of the program. It may be that some visa officers are satisfied more easily than others but where a visa officer applies rational criteria in a reasonable way, the Court will not intervene.
[30] In the end result, there is no reason to interfere with the visa officer's exercise of her discretion.
ORDER
The application for judicial review of the decision of Carolyn Wallace, dated September 30, 1999, is hereby dismissed.
"J.D. Denis Pelletier"
Judge
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