Bhatia v. Canada (Minister of Citizenship and Immigration), docket IMM-1410-99

Date: 20000127

Docket: IMM-1410-99

BETWEEN:

Vinod BHATIA

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

CULLEN, J.

[1]      The applicant, Vinod Bhatia, seeks judicial review of a decision of a visa officer based at the Canadian Consulate General in Detroit. The visa officer"s decision, dated 12 February 1998, refused the applicant"s application for an immigration visa on the basis that he did not satisfy the visa officer that he had sufficient experience in his intended occupation. The applicant seeks an order reversing this decision and remitting the application to another visa officer for processing in accordance with the direction of this Court.

Background

[2]      The applicant, Vinod Bhatia, resides in the United States. He applied for permanent residence in Canada by filing an application and supporting documents at the Canadian Consulate in Buffalo, New York. He was interviewed by a visa officer in Detroit in February, 1999.

[3]      The applicant indicated that his intended occupation, under the National Occupations Classification ("NOC"), was jeweller. He provided, as part of his application materials, two letters indicating that he has been employed as a jeweller in New York. He also included a letter from a Canadian firm indicating its intention to hire him on as a jeweller. At the interview with the visa officer, he was asked a number of questions about his experience and the officer concluded that he did not have sufficient experience to qualify as a jeweller under the NOC. The visa officer also assessed the applicant as a jewellery assembler under the NOC, but again concluded that the applicant did not have sufficient points to gain admission. The points awarded under the Immigration Regulations, 1978¹ to determine the applicant"s eligibility are as follows:

---

Factor	Awarded	Max
Age	10	10
Occupational Factor	00	10
Education/Training Factor	02	18
Experience	02	08
Arranged Employment	00	10
Education	15	16
Demographic Factor	08	10
Language: English	09	09
Language: French	00	06
Bonus	00	00
Personal Suitability	05	10
Total	51	107

[4]      In the independent category, an applicant must achieve a minimum of 70 points in order to be eligible for immigration to Canada. It is clear that even if the visa officer had assessed the applicant with the maximum points available for the "experience" factor, which is the main factor in dispute here, he would only have obtained 57 points, 13 points shy of the minimum required.

            

Issues

[5]      The applicant seeks judicial review of this decision of the visa officer on the basis that the visa officer failed to observe the principles of fundamental justice by (a) failing to properly question the applicant on the range of duties required for the occupation of jeweller in Canada, and by (b) failing to voice concerns regarding a lack of technical terms in the answers of the applicant. The applicant further alleges that the visa officer applied the wrong standard of assessment of the NOC requirements in determining qualification as a jeweller in Canada.

Analysis

Questioning on full range of duties of a jeweller

[6]      The visa officer stated in cross-examination that she did not question the applicant on each and every element of the job of jeweller as expressed in the NOC. Questions, instead, focussed on some elements of the NOC description of jeweller. The applicant was asked to describe his training, work and specific duties. Some specific technical questions were also asked. The applicant submits in the affidavit filed in this application for judicial review that he provided detailed explanations, peppered with technical terms of art. The visa officer, in her affidavit and on cross-examination, avers that he did not.

[7]      The applicant submits in argument that the visa officer failed in her duty of fairness to the applicant by not voicing her concerns regarding the applicant"s background. In addition, it is submitted that she erred by not making any efforts to determine the entire list of duties performed by the applicant. In support of this position, the applicant cites Hussain v. Canada (Minister of Citizenship and Immigration) ,² Chen v. Canada (Minister of Employment and Immigration),³ and Fong v. Canada (Minister of Employment and Immigration).⁴ While the first case listed is not very helpful to the Court, as it mostly concerned extraneous evidence personally known to the visa officer, the latter two are. In Chen, the applicant sought to immigrate to Canada under the investor category. The visa officer refused the application for lack of experience in business. The applicant had been a civil servant in Taiwan, but also owned an orchard. A manager was hired to oversee and operate the business. Under the regulations, the visa officer is obliged to assess whether applicant has "successfully operated, controlled or directed a business or commercial undertaking."⁵ Mr. Justice Rothstein noted that the visa officer had considered whether the applicant had operated a farm, but did not address whether he had controlled or directed the business. This was a breach of the principles of procedural fairness:

With respect to the question of procedural fairness, the visa officer indicated that she told the applicant she was concerned that he did not have the required experience to qualify as an investor or as an independent applicant. The applicant did not satisfy the visa officer's concerns. However, I am of the view that more than a general statement of concern is required.

In Fong v. Canada (M.E.I.) (1990), 11 Imm. L.R. (2d) 205, McNair, J. stated at page 215:

    

I am also of the opinion that the visa officer committed a breach of the duty of fairness by his failure to afford the applicant an adequate opportunity to answer the specific case against him on the issue of related experience vis-a-vis the job offer of production line manager, which could have been done and should have been done by an appropriate line of questioning once it became apparent that the application for permanent residence was likely to fail on that score.

In the present case, when the visa officer became concerned that the applicant might not qualify in the "Investor" class, she should have questioned him specifically on each of the criteria separately. For her to have simply expressed concern in a general way and then expected a meaningful response is, in my opinion, not consistent with the requirements of procedural fairness. However, where the requirements to be met under the Act or Regulations are fairly straightforward and the visa officer has a concern that an applicant may not qualify, I do not think it is placing too great a burden on the visa officer to address each requirement specifically and illicit answers so that a clear assessment can be made as to whether the applicant comes within the relevant definition of the Act or Regulations. This was not done in the present case.

I therefore conclude that there was a denial of procedural fairness in the case at bar.

[8]      The respondent counters this argument by indicating that the decision of a visa officer in assigning points and evaluating the various factors are discretionary, and should only be interfered with when they are unreasonable, without jurisdiction, made in bad faith or based upon irrelevant considerations. The authorities cited by the applicant are compelling.⁶ However, the issue here is not an error per se -- in the sense of a misapprehension or an error in applying the law -- but whether the principles of procedural fairness were adhered to. Two cases cited by the respondent concern this immediate issue: Prasad v. Canada (Minister of Citizenship and Immigration)⁷ and Hajariwala v. Canada (Minister of Employment and Immigration).⁸ In Prasad, the applicant made an application for immigration to Canada through his solicitor. The written materials submitted outlined extensive experience in his trade, but revealed no information on academic or trade-school qualification. Under the visa officer"s interpretation of the occupations of Diesel Mechanic and Heavy Duty Mechanic under the Canadian Classification and Dictionary of Occupations, he was not qualified because of his lack of certification. This was the case notwithstanding twenty years" experience. Mr. Prasad"s application was only paper-screened and no interview was conducted before the negative decision of the visa officer was communicated to him. On judicial review, Mr. Justice Muldoon of this Court held

The onus is on the applicant to satisfy the visa officer fully of all the positive ingredients in the applicant"s application. It is not for the visa officer to wait and to offer the applicant a second, or several opportunities to satisfy the visa officer on necessary points which the applicant may have overlooked. The visa officer exhibited no error of law, egregious error of fact, nor yet any unfairness on this record.9

[9]      In my opinion, there is little doubt that it is not the role of a visa officer to offer help, advice or assistance to the applicant in making his or her case for admission. As put by Associate Chief Justice Jerome in Hajariwala,

It is also important to emphasize that the Immigration Act in S. 6 requires those seeking landing in Canada must satisfy an immigration officer that they meet the selection standards set out in the Immigration Regulations, 1978. It is clearly, therefore, the responsibility of the applicant to produce all relevant information which may assist his application. The extent to which immigration officers may wish to offer assistance, counselling or advice may be a matter of individual preference or even a matter of departmental policy from time to time, but it is not an obligation that is imposed upon the officers by the Act or Regulations.

[10]      It is incumbent upon the visa officer, however, to actively interview an applicant, seeking the information required by the officer in order to come to a fair and balanced conclusion.

[11]      It is my opinion that in this case the visa officer did not violate the principles of fundamental justice or procedural fairness in the conduct of the interview of the applicant. General questions were asked of the applicant regarding his job which were followed up by more and more specific questions. In my opinion, the procedure calls for an interview, not an inquisition. Visa officers, when faced with ambiguity or uncertainty, should delve deeper and seek more specific answers from applicants. The applicant was given the opportunity to demonstrate his technical expertise by the officer"s increasingly technical questions.

Application of the wrong standard of assessment as a jeweller

[12]      The applicant argues that the visa officer committed a reversible error by using the wrong standard of assessment for the occupation of jeweller under the NOC. The visa officer concluded in her letter of decision that the applicant had not satisfied her that he had performed the "full range of duties" of a jeweller as that occupation is listed in the NOC. The applicant alleges that the visa officer used the wrong standard by requiring, in effect, that the applicant have experience in all the duties listed under that classification.

[13]      The basis for this argument is the use of the phrase "full range of duties." It may be an unfortunate choice of words, as it is open to differing interpretations. It is clear that in order to be considered to have experience in a particular NOC occupation, an applicant does not have to have experience in each and every duty listed therein. The visa officer admitted this under cross-examination. Nevertheless, there is a range of duties performed in any occupation. Simply performing one or two of the duties normally associated with an occupation does not mean that one is working in that occupation. The person"s duties altogether must be compared to the duties listed in the NOC. It is impossible to say that exactly half or three-quarters of the duties must be performed in order to qualify. The Immigration Regulations, 1978 are clear: to get credit for an occupation, the applicant must have performed "a substantial number of the main duties set out in the National Occupational Classification , including the essential ones."¹⁰ Whether this has been satisfied by an individual applicant is a matter of judgment and discretion.

[14]      In my opinion, I cannot conclude that the visa officer made an error in this regard that would justify the Court"s intervention.

Conclusion

[15]      I must conclude that the applicant in this case was not denied procedural fairness during the processing of his application for admission to Canada. In addition, the record does not display any errors of law or of fact that would justify the intervention of this Court. For these reasons, this application for judicial review shall be dismissed.

Ottawa, Ontario

January 27, 2000

B. Cullen

J.F.C.C.

__________________

¹ SOR/78-172 as am.

² (1998), 159 F.T.R. 203, 45 Imm.L.R. (2d) 13 (T.D.).

³ (1993), 65 F.T.R. 73, 20 Imm.L.R. (2d) 290 (T.D.).

⁴ [1990] 3 F.C. 705, 11 Imm. L.R. (2d) 2-5 (T.D.).

⁵ Immigration Regulations, 1978, SOR/78-172, s. 2(1)(a).

⁶ Shakeel v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 638 (T.D.), To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (C.A.), [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2.

⁷ [1996] F.C.J. No. 453 (T.D.).

⁸ [1989] 2 F.C. 79 (T.D.).

⁹ Prasad, supra at para. 7.

¹⁰ Immigration Regulations, 1978, SOR/78-172, Schedule I, Factor 4.