Date: 19980402
Docket: IMM-1761-97
BETWEEN:
MOHAMMED MUNIR RAJA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of the decision of a visa officer, Kathleen O'Brien, made on March 20, 1997 denying the applicant a permanent residence visa. The applicant was denied for failing to receive at least 70 units of assessment pursuant to subsection 9(1)(b)(i) of the Immigration Regulations, 1978 [hereinafter the Regulations]. The applicant was also denied under subsection 11(2)(a) of the Regulations because there was no demand for the assessed occupation.
FACTS
[2] The applicant is a 31-year old citizen from Pakistan who has resided in the United States since February 1982. The applicant filed his application for permanent residence stating that his intended occupation was an Electrical Wiring Inspector, Canadian Classification and Dictionary of Occupations ("CCDO") 8736-110.
[3] The applicant states that he was employed by Kharian Floor Mill in Pakistan as an Electrical Wiring Inspector between 1987 and 1992. The applicant was later employed at Rob's Amco Gas Station in New York allegedly as an Automotive Maintenance Equipment Servicer between 1992 and 1994. Since 1994, the applicant states that he has been a Limousine Driver for Tel-Aviv Limousine Service.
[4] At the interview on March 14, 1997, the applicant stated that he had entered the United States illegally by obtaining a false visa. The applicant had claimed asylum but had not received notice of his status from the USINS nor had he made inquiries about his claim. He had also not informed the USINS about his change of address. The applicant had also adopted the name of Shakar although he did not formally register the name.
[5] The applicant provided two school certificates from the Board of Intermediate & Secondary Education, Gujranwala, and a certificate from the Punjab Technical Institute (Regd) Gurat, Pakistan as an Electrical Technician. The applicant told the visa officer that he had not attended Zamindara Science Degree College contrary to the information on his permanent residence application. The visa officer amended the application on that basis. In the applicant's affidavit, he again asserts that he attended that college, although there is no documentation in support of that claim.
[6] As a result, the visa officer awarded the applicant ten units of assessment for education in accordance with Schedule 1, 1(b)(iii) of the Regulations based on the fact that completion of school was not a condition of admission to the Punjab Technical Institute. The visa officer also determined that the applicant was not entitled to any units of assessment awarded under Schedule 1, 1(c)(ii). At the hearing before me, counsel for the applicant abandoned any claim for additional points relating to the issue of education.
[7] At the interview, the applicant presented a letter from his former employer, Kharian Flour & General Mills Ltd. The letter stated that he had been an Electrical Wiring Inspector from October 1987 to May 1992. This differed from the information on his affidavit and application that he had been in the United States since February 1992.
[8] The applicant informed the visa officer that there was no licensing of electrical inspectors in the Punjab and there were no government safety inspectors. He also stated that wiring was completed on his authority and he supervised the individuals who performed those duties. The applicant also stated that he did not write or approve electrical plans but ensured that the wiring met with those plans. He claimed to operate in an environment without articulated safety standards.
[9] The visa officer determined that he did not have sufficient skills to qualify as an Electrical Wiring Inspector under the CCDO. Without safety standards or inspectors, the applicant could not confirm that the wiring or equipment installations conformed to safety standards. Given that the applicant indicated that he supervised workers who installed electrical wiring, the visa officer assessed him as a Foreman of Electrical Workers, CCDO 8730-110, defined as one who:
| Supervises and coordinates activities of workers engaged in installing and repairing electrical wiring and related equipment in houses, ships, industrial and commercial establishments and other buildings. |
|
[10] At the time of the assessment, there was zero occupational demand for a Foreman of Electrical Workers. Subsection 11(2) of the Regulations prohibits the issuance of a visa to one who is awarded zero units of assessment in the occupational factor category.
[11] During the interview, the visa officer telephoned Rob's Amco Inc. and was informed that the applicant's main duties were as a gas station attendant. The applicant was not a licensed mechanic nor was he licensed to repair equipment. The applicant did not request to be assessed as an Automotive Maintenance Equipment Servicer. The visa officer did not confirm whether the employment letter was valid because the applicant did not request to be evaluated in this alternative occupation.
[12] On the personal suitability factor, the applicant was awarded two units of assessment. The visa officer states that he had little knowledge about Canada and insubstantial knowledge of any employment standards. The visa officer considered that the lack of effort to upgrade his qualifications in the electrical field demonstrated a lack of initiative and motivation.
[13] The applicant was awarded 65 points of assessment pursuant to subsection 9(1)(b)(i) of the Regulations and was denied a permanent residence visa.
SUBMISSIONS
1. The Applicant's Submissions
[14] The applicant submits that he was entitled to thirteen units of assessment under the education factor for having completed a two-year College or post-Secondary program. As I said, this submission was abandoned at the hearing before me.
[15] The applicant submits further that he was eligible to be assessed in the occupation of Automotive Maintenance Equipment Services since he had worked in this position for two years. He argues that the visa officer was incorrect to find that the entry requirements for this position require a license or trade certification.
[16] Although the applicant agrees that no certification is required to work in private industry in Punjab as an Electrical Wiring Inspector, the applicant submits that he never told the visa officer that there are no regulations with respect to electrical installations.
[17] Finally, the applicant generally disagrees with the visa officer's assessment of his personal suitability although no specific errors are alleged. The applicant does submit that the visa officer showed a bias.
2. The Respondent's Submissions
[18] The respondent, in the written submissions, submits that the visa officer reasonably awarded the applicant 10 units of assessment under the education factor. The respondent notes that the applicant has no certificate from the Zamindara Science Degree College and claimed that he had not attended college. The respondent adds that he had not completed secondary school prior to attending the Punjab Technical Institute, and therefore this training did not require the completion of secondary school as a condition of admission.
[19] Concerning the applicant's statement that the visa officer failed to assess him as an Automotive Maintenance Equipment Servicer, the respondent submits that the applicant never requested this alternative assessment. The respondent submits further that there is no evidence that the visa officer advised the applicant that he required a license to work as an Automotive Maintenance Equipment Servicer. Moreover, the respondent submits that there is no evidence that she said that she would not evaluate his application in this occupation without proof of a license.
[20] The respondent submits that the visa officer correctly found that the applicant did not qualify as an Electrical Wiring Inspector. The respondent submits that the applicant told the visa officer that electrical inspectors were not licensed in the Punjab and there were no government safety inspectors. He also stated that wiring was completed on his authority and he supervised the individuals who performed those duties. The applicant also stated that he did not write or approve electrical plans but ensured that the wiring met with those plans. He claimed to operate in an environment without articulated safety standards.
[21] The respondent argues that without safety standards or inspectors, the applicant could not confirm that the wiring or equipment installations conformed to safety standards. Therefore, the applicant was assessed as a Foreman of Electrical Workers since he had stated that he supervised workers who installed electrical wiring. Given that there was zero demand for this occupation, the respondent submits that the visa officer could not approve the applicant's application for permanent residence.
[22] Finally, the respondent submits that the visa officer acted fairly in awarding the applicant two units of assessment for personal suitability. The respondent notes that the visa officer stated that the applicant had little knowledge about Canada and insubstantial knowledge of any employment standards. The visa officer considered that the lack of effort to upgrade his qualifications in the electrical field demonstrated a lack of initiative and motivation. The respondent also submits that the applicant's contradictory evidence concerning his attendance at college; his purchase of a false US visa; his failure to inform the USINS of his change of address after filing an asylum claim; and using a nickname on official documents was evidence upon which the visa officer could determine the applicant's personal suitability assessment.
DISCUSSION
[23] There are four issues for consideration.
[24] The first issue is whether the visa officer erred in finding that the applicant did not qualify as an Electrical Wiring Inspector. This is defined as one who:
| [i]nspects new or modified electrical wiring or equipment installations in structures to ensure conformance to safety standards. |
|
[25] The visa officer found that the applicant operated in an environment without articulated safety standards. The applicant agreed that electrical inspectors were not licensed in the Punjab and there are no government safety inspectors, however, he now says that there are regulations. In my opinion, the visa officer was entitled to conclude that the applicant did not qualify as an Electrical Wiring Inspector. The evidence is unclear but it appears that safety standards, if they exist, are lax at best. In the absence of any other evidence, it appears that the visa officer made an appropriate decision.
[26] The second ground for review is whether the applicant should have been assessed as an Automotive Maintenance Equipment Servicer. This is defined as one who "[r]epairs and adjusts equipment used to service, repair and test automotive vehicles." The current jurisprudence on this issue was aptly summarized in Saggu v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 137 (F.C.T.D.) at page 142:
| The visa officer has a duty to assess an application with reference to the occupation represented by the applicant as the one for which he or she is qualified and prepared to pursue in Canada. That duty extends to each such occupation. An order of certiorari and mandamus will be available where there has been a failure to do so. [...] Further, there is a clear responsibility on the part of a visa officer to assess alternate occupations inherent in the applicant's work experience: Li v. Canada (M.E.I.) (1990), 9 Imm.L.R. (2d) 263 (F.C.T.D.). A visa officer must consider an applicant's aptitudes, previous work experience, and whether or not this constitutes experience in the intended occupations.... |
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[27] If, however, the visa officer concludes that the applicant does not meet the criteria for the occupation as defined in the CCDO, it is not unreasonable for the visa officer to hold that the applicant cannot be further assessed in that occupational category (Cai v. Canada (Minister of Citizenship and Immigration, [1997] F.C.J. No. 55 (Q.L.) (F.C.T.D.)).
[28] The visa officer's affidavit states that when the officer contacted Rob's Amco Inc., the applicant's former employer, he was told that the applicant mainly acted as a gas station attendant. In those circumstances, the visa officer did not have to assess the applicant as an Automotive Maintenance Equipment Servicer since the applicant clearly did not meet the definition of that occupation.
[29] The third issue is whether the visa officer was entitled to award two units of assessment under the personal suitability factor. In Hussain v. Canada (Minister of Citizenship and Immigration) (1997), 36 Imm.L.R. (2d) 232 (F.C.T.D.), Heald J. stated at page 236 that "the category of personal suitability is intended to be somewhat of a basket clause encompassing a general concern with the applicant's ability to successfully survive economically in this country." This would include the applicant's knowledge of Canada because, as Simpson J. stated in Stefan v. Canada (Minister of Citizenship & Immigration) (1996), 35 Imm L.R. (2d) 21 at page 24 (F.C.T.D.): "[it is] reasonable to infer that someone who wanted to bring her family here, but had not taken the trouble to learn something of Canada, lacked the initiative and resourcefulness necessary for successful establishment in this country."
[30] The visa officer appears to have based the personal suitability assessment on the applicant's lack of knowledge of Canada, his unwillingness to upgrade his skills, his false visa, contradictory statements concerning his attendance at college, his passive approach to claiming asylum and using a false name on official documents. In my opinion, all of these factors, to a greater or a lesser extent, have a bearing on the applicant's ability to be economically successful in Canada. The visa officer was fully justified to take these factors into account in making her determination.
[31] The fourth and final issue is that of bias. The applicant submits that because the visa officer referred, on a number of occasions, on the issue of the applicant entering the United States on a false visa, on his contradictory statements, on his use of a false name, then she was biased in her assessment of the applicant.
[32] I cannot agree. It is the visa officer's responsibility to assess the applicant as to his personal suitability and the factors of false visa, false name and contradictory answers are factors to be considered.
[33] Considering these factors does not indicate bias.
CONCLUSION
[34] The application for judicial review is denied.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, ONTARIO
April 2, 1998
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