Date: 19980519
Docket: IMM-1261-97
Between :
NAEEM AKHTAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MULDOON, J. :
[1] This is a contested application for judicial review pursuant to subsection 82.1(2) of the Immigration Act, R.S.C. 1985, Chap. I-2 of a decision of a visa officer (B034311443) dated February 6, 1997, in which the applicant"s application for permanent residence was denied.
[2] The applicant seeks the following relief:
| 1. A declaration that the applicant meets the criteria for selection as a permanent resident; |
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| 2. In the alternative, an order directing a different visa officer to reconsider the application of the applicant; and |
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| 3. An order of costs in the amount of $3500.00 for legal fees plus disbursements incurred in connection with the case; costs of any further interview which may be required by the Court and costs of any further examinations which may be required as a result of the refusal of the applicant"s application. |
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[3] Upon conclusion of this hearing, counsel for the applicant was accorded the privilege to provide further written submissions because there was insufficient time in which to hear counsel"s submissions orally. These reasons reflect all of the material provided by counsel on this matter.
[4] The applicant is a citizen of Pakistan. He obtained a certificate from the Rawalpindi Catering Institute in 1979. Since that time, the applicant has worked as a caterer in Pakistan. His duties as a caterer involve hiring a cook, providing tents, sofas, chairs, brass utensils and dishes and making the seating and lighting arrangements.
[5] In May 1996, the applicant submitted in Cairo his application for permanent residence. He was applying under the independent class as an assisted relative. The applicant indicated in his application that his intended occupation was a caterer (CCDO 6121-121). On May 24, 1996, the application was "paper-screened" and the applicant was awarded 76 points. The "paper screening" assessment was recorded as follows:
Age 10
Occupational Factor 10
Specific Vocational Preparation 18
Experience 8
Arranged Employment 0
Demographic Factor 8
Education 15
English 2
French 0
Assisted Relative Bonus 5
TOTAL 76
[6] Based on this assessment, the applicant was asked to attend an interview at his chosen location, in Cairo, scheduled for October 30, 1996. The applicant attended the interview with his wife, Lubna Sultan. During the interview, the visa officer asked the applicant about his experience working as a self-employed caterer in Pakistan. Based on his answers, the visa officer concluded that the applicant"s work was restricted in nature, in that he basically provided furniture, utensils, chairs and tents. The officer noted that the applicant did not cook himself and that he had virtually no training as a caterer.
[7] The CCDO definition of caterer reads as follows:
| Prepares, cooks and serves meals for parties, banquets and meeting held in private homes and other establishments. Performs duties similar to those of 6121-111 CHEF-COOK, GENERAL (cater. & lodg.). Meets with customers and prospective customers to discuss menus, costs, table decorations, settings and other details for catered event. Orders supplies and keeps records of stock. Places prepared and cooked food items in temperature-controlled containers and delivers them to customer"s premises. Sets tables and serves food to patrons at buffet or tables, or to guests at cocktail parties. Cleans cooking utensils, work and storage areas and removes supplies from customer"s premises. |
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[8] The occupation of caterer carries with it an occupational demand of 10 units. The occupation also carries with it 18 units for specific vocational preparation. According to the Schedule, this means that the amount of preparation required is a minimum of 4 years (see paragraphs (g) and (h) of Specific Vocational Preparation).
[9] The visa officer awarded the applicant the maximum of 8 units for experience as she determined that the applicant had a specialized form of a catering business in Pakistan for at least 4 years. The visa officer also awarded the applicant 15 units for education, as the applicant holds a Bachelor of Arts degree. An additional two units were awarded for the applicant"s ability in English, as the visa officer accepted the applicant"s statement that he read English "well". Finally, the applicant was awarded 3 units of assessment for his personal suitability. In determining the applicant"s personal suitability, the visa officer made the following comment at paragraph 9 of her affidavit (page 3, Respondent"s Record):
| In assessing the Applicant"s personal suitability I took into account that he had made no effort to prepare himself for the change in his employment environment, and that he did not familiarize himself with the catering business in Canada, nor the language of communication he would need to use in Canada. This indicated to me that the Applicant lacked initiative and resourcefulness, and therefore, I gave him 3 units of assessment for personal suitability. |
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[10] As a result, the applicant was awarded a total of 79 units of assessment, broken down as follows:
Age 10
Occupational Factor 10
Specific Vocational Preparation 18
Experience 8
Arranged Employment 0
Demographic Factor 8
Education 15
English 2
French 0
Assisted Relative Bonus 5
Personal Suitability 3
TOTAL 79
[11] Although the applicant received the minimum units of assessment for acceptance as an independent immigrant, the visa officer was of the opinion that the points obtained by the applicant did not accurately reflect his chances of becoming successfully established in Canada. Accordingly, pursuant to paragraph 11(3)(b) of the Immigration Regulations, the visa officer refused to issue the applicant an immigrant visa. This subsection provides that:
| (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 |
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| (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, |
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| 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. |
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[12] At paragraph 11 of her affidavit, the visa officer outlines why she concluded that the applicant"s awarded units of assessment do not accurately reflect his chances of becoming successfully established in Canada:
| Because [sic] catering in Canada is an industry where communication is vital and the Applicant was virtually unable to communicate with me during his interview. [sic] In addition, his experience as a self-employed caterer in Pakistan was not readily transferable to the Canadian market given that his experience was of a highly specialized nature. Furthermore, he had virtually no formal training as a caterer, and he did not prepare or cook foods himself. |
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[13] Based on this assessment, the visa officer forwarded her request to exercise negative discretion to a senior immigration officer. Her letter reads as follows:
| RECOMMEND NEGATIVE DISCRETION BASED ON THE FOLLOWING: |
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| EVEN THOUGH HE MAKES THE POINTS IS VIRTUALLY UNABLE TO COMMUNICATE - CATERING IS AN INDUSTRY WHERE COMMUNICATION IS MOST VITAL. IN ADDITION, EXPERIENCE AS A CATERER IN PAKISTAN IS HARDLY TRANSFERABLE TO CDA EVEN THOUGH CATERING IS ON THE OPEN OCCUPATION LIST. HE HAS EXPERIENCE BASICALLY IN SETTING UP TENTS FOR MARRIAGES AND SUPPLIES CHAIRS AND FURNITURE IN THESE TENTS TO SEAT PEOPLE WHICH IS NOT A WAY OF CATERING WHICH CAN LEND ITSELF TO CANADIAN SOCIETY OR WEATHER. EVEN THOUGH HAS TRAVELLED TO CDA SOME 10 YEARS AGO HAS NO REAL CONCEPT OR IDEA OF WHAT CATERING ENTAILS IN CDA. FOR THESE REASONS NOT LIKELY TO ESTABLISH SUCCESSFULLY. A/N"S EXPER IS RESTRICTED TO OPERATION OF CONTRACTING/CATERING BUSINESS IN A HIGHLY SPECIALIZED ENVIRONMENT. HE HAS MADE NO EFFORT TO PREPARE HIMSELF FOR THE CDN MARKET. OPERATION OF CATERING BUSINESS IN CDA IS VERY MUCH DEPENDANT ON AN ABILITY TO COMMUNICATE WITH SUPPLIERS, ADVERTISERS, EMPLMT AGENCIES (TO HIRE WAITERS, BAR TENDERS ETC); CATERING IS HIGHLY COMPETITIVE FIELD AND HE WOULD NOT BE ABLE TO PENETRATE LOCAL MKT OR OBTAIN EMPLMT AT THIS LEVEL FOR HIMSELF ON THE BASIS OF THE INFO PROVIDED AT INTVW. IN ALL LIKELIHOOD HE WOULD END UP HAVING TO WORK IN ANOTHER OCC FOR AN INDEF PERIOD BEFORE HE COULD BE CONSIDERED QLFD IN THIS OCC TO ACCEPTABLE CDN STANDARD. POINTS AWARDED UNDER SEL CRIT DO NOT REFLECT HIS ABILITY TO ESTABLISH HIMSELF SUCCESSFULLY. |
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This request was reviewed and approved by a senior immigration officer.
[14] The visa officer, in her interview notes ("tribunal" record, p. 37) records the following about the applicant at his interview:
| . . . HE WAS CONTINUOUSLY PROMPTED BY WIFE TO ANSWER . . . WIFE SPEAKS FOR HIM ALL THE TIME. . . EVEN THOUGH HE MAKES THE POINTS IS VIRTUALLY UNABLE TO COMMUNICATE - CATERING IS AN INDUSTRY WHERE COMMUNICATION IS MOST VITAL. |
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These observations are rather inauspicious.
[15] Therefore, based on the fact that the applicant"s catering skills are not easily transferable to a Canadian market and based on the fact that the applicant did not have the required vocational training, the visa officer recommended that the applicant not be issued an immigrant visa, despite the fact that he obtained 79 units of assessment, including 3 for personal suitability.
[16] The applicant seeks judicial review of this decision, arguing that the visa officer's decision was unreasonable, and made without proper regard to the evidence before her. The applicant also argues that the visa officer erred in exercising negative discretion due to the fact that she awarded him 3 points for personal suitability. Each argument will be assessed briefly, in turn.
[17] The applicant begins his argument by stating that the visa officer, having accepted that he qualified as a caterer and subsequently granting him full points for his experience, could not then change her mind and determine that the applicant"s experience was not sufficient to qualify for the Canadian market. Apart from being confusing, this argument has no merit. The reason the visa officer exercised her discretion not to grant the applicant an immigrant visa was NOT due to the fact that he lacked experience. Rather, it was due to the fact that the visa officer determined that the applicant"s experience was of an irrelevant, specialized nature.
[18] A few words need to be mentioned about the discretion exercisable under subsection 11(3) of the Immigration Regulations. In Chen v. Minister of Employment and Immigration (1991), 45 F.T.R. 639, Mr. Justice Strayer found that the visa officer erred when exercising the discretion under subsection 11(3) by taking into account that applicant"s criminal or dishonest conduct. On appeal, the majority allowed the Minister"s appeal, with a dissenting opinion written by Mr. Justice Robertson. This dissenting opinion was later adopted by the Supreme Court of Canada [1995], 1 S.C.R. 725. The opinion of Mr. Justice Strayer and that of Mr. Justice Robertson both indicate that when determining whether the units of assessment do or do not actually reflect the chances of that person becoming successfully established in Canada, the primary consideration is economic:
| More specifically, the basic question is -- on what grounds can the visa officer exercise his discretion in forming the opinion that there are "good reasons" why the number of units awarded do not reflect adequately the chances of an immigrant becoming "successfully established" in Canada? It is inconceivable that this was intended to give a visa officer an unlimited mandate to decide whether a particular immigrant is generally suitable or not as a future member of Canadian society, given the existence of other, extensive, provisions in the Act for identifying those who are suitable or unsuitable. It may first be observed that subsection 11(3) cannot be taken to overlap the grounds of the "inadmissible classes" found in section 19. |
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| Given this emphasis on economic factors as identified by both Parliament and the Governor in Council for determining whether an immigrant can become "successfully established" in Canada, it is difficult to read the discretionary power granted to a visa officer by subsection 11(3) of the Regulations as allowing him to ignore the number of units of assessment and to determine, for essentially non-economic reasons, that an immigrant does not have a chance of becoming successfully established in Canada. While the subsection only requires that the visa officer have "good reasons", those reasons must be such as lead him to believe that the immigrant cannot become successfully established in the economic sense. They do not include such reasons as that an immigrant will probably not be a good neighbour, a good resident, or ultimately a good citizen of Canada;... If they are to be excluded for such reasons, it must be done under the process contemplated by section 19 and not through a visa officer exercising his discretion under subsection 11(3) of the Regulations because he feels that a particular immigrant is undesirable. |
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[19] Similarly, in Mangat v. Minister of Employment and Immigration (1991), 45 F.T.R. 128, Mr. Justice Strayer noted that:
| the discretion which may be exercised under s. 11(3) must be based on the chances the applicant has of becoming successfully established in Canada. It is not a general discretion at large conveyed on the visa officer to reject would-be-immigrants simply because the visa officer thinks such persons are unlikely to be good residents of Canada. |
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[20] A precondition to becoming successfully established in Canada is a finding that the applicant actually meets the CCDO definition. In this case, the visa officer states that the applicant did not meet the definition as he did not have the specific vocational preparation required. While he was, perhaps erroneously, assessed as a caterer, the applicant did not have sufficient training to be eligible under this category. Unfortunately, this applicant"s skills cannot be easily classified and the visa officer chose to assess the applicant as a caterer despite his lack of training in this area. This does not equate to a finding that the applicant is, in fact, a caterer. By assessing him as such, she determined that his points did not reflect his chances of becoming successful in Canada. Accordingly, the visa officer"s reasoning on this point is not in error.
[21] Even if he did have the preparation, the visa officer states that given his specialized work in Pakistan the applicant"s skills are not easily transferable to the Canadian market. The fact that the officer awarded the applicant 8 units of assessment for experience for work of a specialized nature does not reflect on his ability to become successfully established in Canada . While the applicant"s catering business may be successful in Pakistan, given the nature of the work, it does not equate with a finding that he will become successfully established in Canada. Accordingly, the visa officer"s reasoning on this point is not in error.
[22] The applicant"s final argument is that a precondition to exercising negative discretion is that the applicant be awarded 0 units for personal suitability. The applicant cites Chen in which Mr. Justice Strayer notes that:
| ...it appears to me that a pre-condition for exercising a discretion on that ground would to be rate that factor [personal suitability] at 0 in the assessment. |
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[23] The applicant"s position is untenable. In Covrig v. Minister of Citizenship and Immigration (1995), 104 F.T.R. 41, this Court upheld the decision of a visa officer in which the visa officer exercised his discretion in a negative manner, even though the officer had awarded the applicant only 5 units of assessment for personal suitability. Similarly, in the case at bar, the applicant received a below-average score, albeit not a zero. Taken in context with the fact that the officer felt that the applicant did not have the vocational preparation demanded, this conclusion is not in error.
[24] Accordingly, this application is dismissed.
[25] One note should be made about the relief sought by the applicant. The applicant could have submitted his application to the office in Islamabad. Given that he did not, he should not ask this Court to reimburse him for his travel expenses to Cairo, since it was his choice to submit his application there.
JUDGE
OTTAWA, ONTARIO
May 19, 1998
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