Date: 20010705
Docket: IMM-3504-00
Neutral citation: 2001 FCT 746
Between:
Lahoussine QACHACH, a practising
accountant (department head), residing
and domiciled at the following address: 8 Allée de l'Aigle,
Quartier Hermitage, Casablanca, Morocco
Plaintiff
- and -
The Minister of Citizenship and Immigration,
at the offices of Justice Canada, 200 boul. René-Lévesque
ouest, 5ième étage, Montréal, province of Quebec
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision communicated to the plaintiff on June 5, 2000 following his interview with Marie-France Prévost, visa officer at the Canadian Embassy in Rabat, rejecting the plaintiff's permanent resident application, made in the "independent application" class pursuant to s. 8(1) of the Immigration Regulations, 1978.
[2] The breakdown of the points obtained by the plaintiff for each factor in the subject decision is as follows:
Aged 10
Occupational demand 03
Specific vocational preparation 15
Experience 06
Arranged employment or designated occupation 00
Canadian demographic factor 08
Education 00
Knowledge of English 00
Knowledge of French 09
Personal suitability 04
TOTAL 55
[3] The plaintiff argued primarily that he should have been awarded points for his two post-secondary diplomas under factor 1 of Schedule I of the Immigration Regulations, 1978, SOR/78-172, amended by SOR/93-44 ("the Regulations"), which includes the following requirements:
| 1. Education
(1) Subject to subsections (2) to (4), units of assessment shall be awarded as follows:
(a) where a diploma from a secondary school has not been completed, zero units;
(b) where a diploma from a secondary school has been completed, the greater number of the following applicable units:
(i) in the case of a diploma that does not lead to entrance to university in the country of study and does not include trade or occupational certification in the country of study, five units,
(ii) in the case of a diploma that may lead to entrance to university in the country of study, ten units, and
(iii) in the case of a diploma that includes trade or occupational certification in the country of study, ten units;
(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 . . .
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1. Études
(1) Sous réserve des paragraphes (2) à (4), des points d'appréciation sont attribués selon le barème suivant :
a) lorsqu'un diplôme d'études secondaires n'a pas été obtenu, aucun point;
b) lorsqu'un diplôme d'études secondaires a été obtenu, le plus élevé des nombres de points applicables suivants :
(i) si le diplôme ne rend pas le titulaire admissible à des études universitaires et ne lui confère pas de qualification de membre d'un corps de métier ou d'un groupe professionnel dans le pays où il a été obtenu, 5 points,
(ii) si le diplôme rend le titulaire admissible à des études universitaires dans le pays où il a été obtenu, 10 points,
(iii) si le diplôme confère une qualification de membre d'un corps de métier ou d'un groupe professionnel dans le pays où il a été obtenu, 10 points;
c) lorsqu'un diplôme ou un certificat d'apprentissage d'un collège, d'une école de métiers ou de tout autre établissement post-secondaire, 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 . . .
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[4] As I see it, it is clear from reading this passage in the Regulations that the real intent of Parliament in adopting this provision was to award points only to persons holding secondary school diplomas. This requirement is repeated in each of the relevant paragraphs of the passage in question and is clearly a necessary prerequisite for a visa applicant to obtain points for the "Education"factor.
[5] Section 8(1) of the Immigration Act, R.S.C. 1985, c. I-2, clearly provides that the plaintiff has the burden of supplying the visa officer with sufficient evidence to support his application. It appeared from reading the interview notes of the officer in question that she based her assessment of the plaintiff's education on several observations, including the following:
- the plaintiff admitted he had not successfully completed his final year of secondary school (that is, he did not receive a diploma for his secondary education);
- the plaintiff stated that the sales training included no academic requirements and was open to persons who had not completed their secondary education;
- the plaintiff stated that at most two years of secondary education were needed to go on to the training of an accountant.
[6] In my opinion, the evidence allowed the visa officer to say the following, in para. 44 of her affidavit:
[TRANSLATION]
44. Based on the documents he gave me and his own statements, having nothing at my disposal to indicate to me that he had obtained a secondary school diploma and in fact having several things which indicated the contrary, I concluded that the plaintiff did not obtain a secondary school diploma.
[7] The plaintiff's allegation that the officer erred in providing the additional explanation that a secondary school diploma assumes 12 years of study in no way alters the fact that the documents he submitted did not constitute the secondary school diplomas required in factor 1 of Schedule I of the Regulations.
[8] The evidence clearly established that at the interview the visa officer made her concerns about the inadequacy of his diplomas known to the plaintiff. As the latter did not request permission to provide additional evidence and had the burden of supplying sufficient evidence in support of his application, he certainly has no reason to complain here of a breach of procedural fairness.
[9] The plaintiff's argument that the standards of the National Occupational Classification ("the NOC") apply only to accountants who are members of a professional body and do not cover the conditions for membership in the general accounting profession is untenable in view of the "Examples of employment names" found in class 1111.2 of the NOC, which include "accountant" as well as "chartered accountant", "certified management accountant" and "certified general accountant". Consequently, I consider that the NOC governs access to the accounting profession in general.
[10] Finally, in his written memorandum the plaintiff challenged the assessment by the officer of his knowledge of English and his personality. In her interview notes the officer made the following comments regarding the plaintiff's knowledge of English:
[TRANSLATION]
GENERAL LEVEL OF ENGLISH WEAK. UNABLE TO CONDUCT CONVERSATION, SPEAKS WITH DIFFICULTY. VERY LIMITED VOCABULARY. SAYS HE HAS TAKEN ENGLISH COURSES SINCE OCT. '99 BUT NEVER USED IT. MADE HIM READ TEXT IN ENGLISH, ASKING HIM TO TRANSLATE INTO FRENCH. THIS EXERCISE VERY DIFFICULT FOR CDT, BOTH IN READING AND COMPREHENSION. ONLY UNDERSTOOD FEW WORDS OR PHRASES. ASKED HIM TO ANSWER THREE QUESTIONS IN ENGLISH ON HIS REASONS FOR MOVING TO CDA: "TELL US ABOUT A NORMAL DAY AT WORK. WHAT ARE YOUR DUTIES AND RESPONSIBILITIES?" REPLY: "THE DAY IN WORK I BEGIN TO CHECK A JOB OF YESTERDAY. I WRITE A NEWS."
I THINK CDT STILL BEGINNER AND COMMAND OF ENGLISH ONLY WITH DIFFICULTY. CDT AGREED WITH ME. 0 POINTS FOR ENGLISH, SECOND LANGUAGE.
[11] After also making specific observations about the plaintiff's personality, the officer concluded in the same notes:
[TRANSLATION]
I DO NOT RECOMMEND POSITIVE DISCRETION IN HIS CASE: CDT DID NOT CONVINCE ME AT INTERVIEW HE HAD ACADEMIC AND PROFESSIONAL QUALIFICATIONS REQUIRED TO FIND WORK IN HIS FIELD OF EXPERTISE IN CANADA EASILY; ADDED TO THAT WEAK COMMAND OF ENGLISH AND SHOWED NO EVIDENCE OF SPECIAL KNOWLEDGE OF CDA, SITUATION IN CDN LABOUR MARKET OR TOWN OF DESTINATION.
[12] After reviewing the evidence in the record, both as regards the plaintiff's knowledge of English and his personality, the officer's assessment in my opinion is supported by that evidence and cannot be regarded as unreasonable.
[13] As the Federal Court of Appeal found in Chiu Chee To v. Minister of Citizenship and Immigration (May 22, 1996), A-172-93, the standard of judicial review to be applied to the discretionary decisions of a visa officer is the same as that formulated by the Supreme Court of Canada in [1982] 2 S.C.R. 2">Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, in which McIntyre J. wrote at 7 and 8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[14] For all these reasons, intervention by this Court is not indicated and the application for judicial review is dismissed.
OTTAWA, ONTARIO
July 5, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010705
Docket: IMM-3504-00
Ottawa, Ontario, July 5, 2001
Before: Pinard J.
Between:
Lahoussine QACHACH, a practising
accountant (department head), residing
and domiciled at the following address: 8 Allée de l'Aigle,
Quartier Hermitage, Casablanca, Morocco
Plaintiff
- and -
The Minister of Citizenship and Immigration,
at the offices of Justice Canada, 200 boul. René-Lévesque
ouest, 5ième étage, Montréal, province of Quebec
Defendant
ORDER
The application for judicial review of the decision communicated to the plaintiff on June 5, 2000, rejecting his permanent resident application made in the "independent applicant" class, is dismissed.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-3504-00
STYLE OF CAUSE: LAHOUSSINE QACHACH v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 6, 2001
REASONS FOR ORDER BY: PINARD J.
DATED: July 5, 2001
APPEARANCES:
Sophie Patricia Querrero FOR THE PLAINTIFF
Marie-Nicole Moreau FOR THE DEFENDANT
SOLICITORS OF RECORD:
Sophie Patricia Querrero FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
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