Date: 20030605
Docket: IMM-656-02
Citation: 2003 FCT 711
OTTAWA, ONTARIO, this 5th day of June 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
MUHAMMED AFZAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of William J. Hawke, an immigration officer employed at the Canadian Consulate General in Seattle, Washington (the "Visa Officer"), dated January 9, 2002, wherein he refused the Applicant's application for permanent residence in Canada.
FACTS
[2] The Applicant, Muhammed Afzal, is a citizen of Pakistan. He came to Canada in 1999 on a temporary foreign worker authorization to work as a cook in a restaurant in Edmonton, Alberta.
[3] In October 2000, he submitted an application for permanent residence in Canada to the Canadian Consulate General in Seattle, Washington.
[4] The Applicant attended an interview with the Visa Officer on October 10, 2001.
[5] During the course of the interview, the Visa Officer confirmed that the Applicant had completed two years of full-time study to receive his highest academic qualification. The Visa Officer also explained to the Applicant that there was no evidence that a job offer had been validated by Human Resources Development Canada ("HRDC").
[6] On December 5, 2001, the Visa Officer sent the Applicant a letter, confirming that there had been no validated job offer for a permanent position approved by HRDC so that he could not award the Applicant ten points for arranged employment.
[7] The Visa Officer also indicated in the letter that he was awarding the Applicant 13 units of assessment for education. As the Applicant had completed two years of full time study before receiving a Bachelor of Arts degree from the University of Punjab, he was not eligible to receive the number of units awarded to Applicants who have completed first-level degrees that require at least three years of full-time study.
[8] The Applicant was informed that, when totalling the points for the remaining selection factors, he received less than the minimum number required for selection.
[9] The Visa Officer also acknowledged that he would consider whether to exercise positive discretion pursuant to paragraph 11(3)(a) of the Immigration Regulations, SOR/78-172 ("Regulations") as requested by the Applicant's counsel. The Visa Officer gave the Applicant 30 days to submit good reason why he should exercise positive discretion.
[10] As of January 9, 2002, the Visa Officer had not received any reasons from the Applicant as to why he should exercise positive discretion.
[11] The Visa Officer sent the Applicant a letter dated January 9, 2002, informing the Applicant that he was awarding him the following units of assessment:
Age 10
Occupational Factor 10
Education and Training 7
Experience 4
Arranged Employment or 0
Designated Occupation
Demographic Factor 8
Education 13
Knowledge of English 9
Knowledge of French 0
Personal Suitability 6
Total 67
[12] The Visa Officer also indicated in his letter that the Applicant had not submitted any reasons within 30 days why he should exercise positive discretion. As such, he concluded that the Applicant had not met the requirements of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") and Regulations and, therefore, he refused the Applicant's application for permanent residence.
APPLICANT'S SUBMISSIONS
[13] Firstly, in his written materials the Applicant alleged that the Visa Officer had erred in his assessment of the Applicant's arranged employment. The Applicant pointed out that he had arranged employment on the basis of his knowledge and experience. His employer had applied to HRDC for permanent job validation in November 2001 but had received no decision. At the hearing of this matter in Edmonton on May 7, 2003, the Applicant conceded that the Visa Officer had not made a mistake on this issue.
[14] Secondly, the Applicant submits that the Visa Officer applied the wrong test when assessing his education. The Visa Officer awarded the Applicant thirteen units whereas a minimum fourteen units should have been awarded, given that the Applicant has a Bachelor of Arts degree and not a diploma or apprenticeship program.
[15] Thirdly, the Applicant submits that the Visa Officer erred in his assessment of the Applicant's personal suitability. The Applicant points out that he has been living in Canada for two and a half years. He has adapted well in Canada and has improved his English language skills and his knowledge of Canadian culture and customs. He is very motivated and ambitious. He has extended family support and his skills will be needed in future. He has managed to save a substantial amount of money and has a distant uncle, a Canadian citizen, who is a well established businessperson and who is willing to assist him.
[16] Finally, the Applicant submits that there has been a breach of natural justice in that the Visa Officer did not consider the totality of the facts presented by the Applicant. The Visa Officer wrote to the Applicant requesting the Applicant to provide reasons why he should exercise positive discretion. The Applicant's counsel in reply to that letter requested that the decision on his application should be postponed until the decision on the Applicant's permanent job validation. The Visa Officer did not wait, which violated the principles of natural justice.
RESPONDENT'S SUBMISSIONS
[17] The Respondent submits that the Visa Officer did not commit an error regarding the Applicant's arranged employment, education and personal suitability, that would warrant the intervention of this Court.
[18] The Respondent also submits that the Applicant has included a variety of documents that do not form part of the Certified Tribunal Record. Consequently, the Respondent requests that the following information in the Applicant's affidavit as well as documents attached to his Applicant Record be struck:
1. Paragraph 17 and 18 of the Applicant's Affidavit is information that was not before the Visa Officer when he made his decision as is confirmed by the affidavit of the Visa Officer, William Hawke, at paragraph 21;
2. Exhibits F, G, I, K-O inclusive are documents that do not form part of the Certified Tribunal Record.
ISSUES
[19] The case at bar raises the following issues:
1. Has the Applicant submitted evidence that was not before the Visa Officer?
2. Did the Visa Officer err with respect to the Applicant's arranged employment?
3. Did the Visa Officer err with respect to the Applicant's education?
4. Did the Visa Officer err with respect to the Applicant's personal suitability?
5. Was there a breach of natural justice?
ANALYSIS
1. Has the Applicant submitted evidence that was not before the Visa Officer?
[20] The Respondent raises a preliminary issue that the Applicant has submitted evidence in his application for judicial review that was not before the Visa Officer. In particular, the Respondent argues that paragraphs 17 and 18 of the Applicant's Affidavit, and exhibits F, G, I, and K-O that are attached to his memorandum of fact and law should not be considered by this Court
[21] It is trite law that the judicial review of a Federal board, commission, or other tribunal should proceed on the basis of evidence that was before the decision maker (Lemiecha v. Canada (Minister of Employment and Immigration), 72 F.T.R. 49 (T.D.).
[22] Paragraphs 17 and 18 of the Applicant's Affidavit, in which he indicates that he contributed $3,000 toward his Registered Retirement Savings Plan, and that he has a distant uncle, Tariq Chaudry, who is a Canadian citizen and owner of a well established East Indian restaurant, contain information that was not before the Visa Officer. This is confirmed by the affidavit of the Visa Officer at paragraph 21, in which he states:
I have reviewed the applicant's affidavit sworn March 13, 2002 and have the following comments:
(a) In response to paragraph 17, the applicant did not provide any evidence, nor did he mention during the interview, that he had contributed $3,000 to a Registered Retirement Savings Plan.
(b) In response to paragraph 18, the applicant provided no evidence in support of his application that he had any relatives (as defined by "assisted relative" in subsection 2(1) of the Immigration Regulations, 1978) in Canada.
[23] Similarly, exhibits F, G, I, and K-O that are attached to the Applicant's memorandum of fact and law do not form part of the Certified Tribunal Record.
[24] As such, this information will not be considered by this Court.
2. Did the Visa Officer err with respect to the Applicant's arranged employment?
[25] The Applicant was right to concede at the hearing that no error was made by the Visa Officer in this regard.
[26] Factor 5 of Schedule I of the Regulations, gives the Visa Officer the authority to award ten units of assessment if:
| (a) the person has arranged employment in Canada that, based on the information provided by the National Employment Service, offers reasonable prospects of continuity and wages and working conditions sufficient to attract and retain in employment Canadian citizens and permanent residents,
(b) based on information provided by the National Employment Service, employment of the person in Canada will not adversely affect employment opportunities for Canadian citizens or permanent residents in Canada, and
(c) the person will likely be able to meet all federal, provincial and other applicable licensing and regulatory requirements related to the employment, or
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a) le requérant a, au Canada un emploi réservé qui, d'après les renseignements fournis par le service national de placement, offre des perspectives de durée raisonnablement bonnes et des conditions de travail et un salaire de nature à attirer des citoyens canadiens ou des résidents permanents pour qu'ils exercent et continuent d'exercer l'emploi en question,
b) d'après les renseignements fournis par le service national de placement, le fait d'employer le requérant au Canada ne nuira pas aux possibilités d'emploi des citoyens canadiens ni des résidents permanents résidant au Canada, et
c) le requérant pourra probablement obtenir, des autorités fédérales, provinciales et autres, l'autorisation nécessaire pour l'emploi en question,
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[27] In short, the Applicant is required to have his proposed employment or job offer validated by HRDC.
[28] In this instance, the Applicant did not have a job offer that had been validated by HRDC. The Visa Officer even checked Citizenship and Immigration Canada's Field Operations Support System before rendering his decision three months after the interview to confirm whether or not the Applicant's job offer had been validated. Without such a validation, the Visa Officer was unable to award the Applicant the ten units of assessment for arranged employment.
[29] As such, there was no error committed by the Visa Officer in awarding no units of assessment for arranged employment.
3. Did the Visa Officer err with respect to the Applicant's education?
[30] The Applicant submits that the Visa Officer applied the wrong test when assessing his education in awarding him only thirteen units, whereas a minimum of fourteen units should have been awarded. This is due to the fact that the Applicant has a Bachelor of Arts degree, not a diploma or apprenticeship program.
[31] The relevant portions of Factor 1 of Schedule I of the Regulations, dealing with the Applicant's education, are as follows:
| (1) ....units of assessment shall be awarded as follows:
[...]
(c) where a diploma or apprenticeship certificate that requires at least one year of full-time classroom study has been completed at a college, trade school or other post-secondary institution, the greater number of the following applicable units:
(i) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(i) or (iii) as a condition of admission, ten units, and
(ii) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(ii) as a condition of admission, thirteen units;
(d) where a first-level university degree that requires at least three years of full-time study has been completed, fifteen units; and
[...]
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(1) ....des points d'appréciation sont attribués selon le barème suivant :
[...]
c) lorsqu'un diplôme ou un certificat d'apprentissage d'un collège, d'une école de métiers ou de tout autre établissement postsecondaire, qui comporte au moins un an d'études à temps plein en salle de cours, a été obtenu, le plus élevé des nombres de points applicables suivants :
(i) si le programme d'études menant à un tel diplôme ou certificat exige un diplôme d'études secondaires visé aux sous-alinéas b)(i) ou (iii), 10 points,
(ii) si le programme d'études menant à un tel diplôme ou certificat exige un diplôme d'études secondaires visé au sous-alinéa b)(ii), 13 points;
d) lorsqu'un diplôme universitaire de premier cycle, comportant au moins trois ans d'études à temps plein, a été obtenu, 15 points;
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[32] In the case at bar, the Applicant's application form stated that he was a student at the P.S.T College from September 1993 to July 1996. However, the Visa Officer noted that the Applicant had submitted evidence of completion of an examination held in January 1996 for a B.A. degree.
[33] At the interview, the Visa Officer asked the Applicant why he wrote his examination in January 1996 if he was in fact studying up until July 1996. The Applicant explained that he stopped studying in July of 1995. He confirmed that he completed two years of full-time study to receive his highest academic qualification, from September 1993 to July 1995.
[34] Consequently, at the interview and in the presence of the Applicant, the Visa Officer made the change to the Applicant's application form to reflect that the Applicant completed his studies in 1995.
[35] With this information, the Visa Officer awarded the Applicant 13 units for education to give him credit for the completion of a post-secondary program that requires as an admission standard secondary schooling at the level required for entry to university and includes at least one year of full-time classroom study, pursuant to 1(c)(ii) of Factor 1 of Schedule I of the Regulations.
[36] The Applicant was not entitled to receive 15 units of assessment for a first level university degree because 1(d) provides that at least three years of full-time classroom study must be completed and the Applicant only had two years of full-time classroom study.
[37] As such, the Visa Officer committed no reviewable error in awarding the Applicant 13 units of assessment for education.
4. Did the Visa Officer err with respect to the Applicant's personal suitability?
[38] The Applicant submits that the Visa Officer erred in his assessment of his personal suitability. The Applicant points out that he has been living in Canada for two and a half years. He has adapted in Canada and has improved his English language skills and his knowledge of Canadian culture and customs. He is very motivated and ambitious. He has managed to save a substantial amount of money in a short period of time. He has $17,000 in his savings account. He also has a distant uncle, a Canadian citizen, who is a well established businessperson who is willing to assist him. According to the Applicant, he has all the qualities to become established in Canada.
[39] Factor 9 of Schedule I of the Regulations gives the Visa Officer the authority to award up to ten units of assessment for personal suitability based on the following:
| Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities.
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Des points d'appréciation sont attribués au requérant au cours d'une entrevue qui permettra de déterminer si lui et les personnes à sa charge sont en mesure de réussir leur installation au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et autres qualités semblables.
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[40] The assessment of personal suitability is entirely within the Visa Officer's scope of expertise and should not be interfered with unless the finding is perverse or capricious or unless the officer committed an error of law (Ali v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1080 (Q.L.)).
[41] In the case at bar, the Visa Officer recognized that the Applicant had been working in a restaurant in Canada since October 1999. He was aware of the Applicant's savings and that the Applicant's spouse had a secondary education.
[42] However, the Visa Officer chose to award the Applicant 6 units of assessment for personal suitability for the following reasons, as indicated in paragraph 19 of his affidavit:
As for the applicant's personal suitability, in addition to what I have stated in my CAIPS notes, the applicant's successful establishment in Canada depended on his continued employment at that particular restaurant as a cook. He did not indicate on his application or during the interview any other employment experience in any occupation. In the event this particular employment ended for any reason, and based on the impression he created through his application and interview, I did not think he would enjoy any distinct advantage in the labour market over other job seekers. I have given him as much credit as I though he merited for having already shown a measure of successful establishment. I could not give him more than I did because I did not have any reason to believe he was highly suitable to become successfully established without the job he was temporarily authorized to perform.
[43] This finding was reasonable based on the evidence before the Visa Officer and does not warrant the intervention of this Court. Nor does it fail to take into account evidence before the Visa Officer.
5. Was there a breach of natural justice?
[44] The Applicant finally submits that there has been a breach of natural justice in that the Visa Officer did not consider the totality of the facts presented by the Applicant. The Visa Officer wrote to the Applicant requesting reasons why he should exercise positive discretion. The Applicant was given 30 days to reply. The Applicant's counsel in reply to that letter requested that the decision on his application should be postponed until a decision was made on the Applicant's permanent job validation. The Applicant points out that the Visa Officer did not wait to make his decision, which violated the principles of natural justice.
[45] There is no requirement for the Visa Officer to delay making his decision while waiting for an Applicant to receive information that will help him in the approval of his application. The timing of the application is left to the Applicant, and the onus is upon him to ensure that the application is complete. The Applicant was given ample opportunity to place all relevant matters before the Visa Officer. As such, there has been no breach of natural justice.
[46] In summary, the Visa Officer's assessment of the Applicant was reasonable. The Applicant has failed to demonstrate that the Visa Officer erred in law, ignored evidence, or made findings on the basis of irrelevant considerations.
[47] For all these reasons, this application for judicial review is dismissed.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is dismissed.
2. No question will be certified.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-656-02
STYLE OF CAUSE: Muhammad Afzal v. The Minister of Citizenship
and Immigration
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: May 7, 2003
REASONS FOR : Russell, J
DATED: June 5, 2003
APPEARANCES:
Mr. Joginder S. Kandola For Applicant
Ms. Tracy King For Respondent
SOLICITORS OF RECORD:
J. S. Kandola Law Office For Applicant
Edmonton, Alberta
Morris Rosenberg For Respondent
Deputy Attorney General of Canada
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