Wahid v. Canada (Minister of Citizenship and Immigration), docket IMM-5457-99

Date: 20001128

Docket: IMM-5457-99

Ottawa, Ontario, this 28^th day of November 2000

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

     MUHAMMAD AMIR WAHID

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]      The applicant, Muhammad Amir Wahid, applied for a visa to immigrate to Canada. In his application, he indicated his intended occupation as "Agriculture". The applicant has an M.Sc. (Hons) in Agriculture-Horticulture from the University of Agriculture, Faisalabad, Pakistan. He was employed for a period of time by D.E. United (Private) Ltd., a subsidiary of Dow AgroSciences LLC, as a Customer and Sales Officer. He was then employed by ICI Agrochemicals as Territory Manager. It appears from the record that both positions required him to consult with farmers and other users of agricultural chemicals about the appropriate use of the company's products for agricultural purposes and to sell those products to those users.

[2]      The Visa Officer assessed the applicant on the basis of employment in Canada as an Agricultural Specialist which is essentially a consulting agronomist. The Visa Officer then went on to award Mr. Wahid 0 points for experience in this occupation "because his experience is not in this field even if his studies are". Under the assessment scheme found in the Immigration Regulations, 1978, an applicant who scores 0 on item 3 of Schedule 1 (experience) is ineligible for a visa unless he has arranged employment. As a result, Mr. Wahid's application failed. The Visa Officer also noted that "As a sale person, he would not be able to make a living in Canada; his English is not good enough."

[3]      The applicant argued that the Visa Officer owed him a duty to assess him in an alternate included occupation which would have given him the opportunity to be assessed in the category of Technical Sales Specialist. With additional points for education (he was apparently assessed one point less than his entitlement for education), occupational demand, and experience, the applicant would have enough points to score 70 on the Schedule 1 assessment.

[4]      The respondent argues that the applicant did not express any interest in being assessed as a Technical Sales Specialist, neither at the interview, nor in his affidavit. The duty to consider alternate occupations does not arise unless the applicant indicates a desire to be assessed in the alternate occupations. The Visa Officer could not presume that the applicant would be content to continue working in his existing occupation.

[5]      The locus classicus of the statement of the duty to assess for related occupations is Hajariwala v. Canada, [1989] 2 F.C. 79 where Mr. Justice Jerome said:

[6]      This is a sensible approach to the problem for it leaves the onus on the applicant to justify his choice and to take whatever steps are required to protect it. Otherwise, applicants would simply pick the most senior position for which they could conceivably be qualified and then wait for the visa officer to find them a position for which they were actually qualified. This would make the Visa Officer responsible for finding applicants a suitable occupation.

[7]      In this case, the applicant did not designate an alternate or included occupation and in the ordinary run of events would be held to the designation which he did select. What is not clear is whether he selected anything at all, since the designation "agriculture" is so broad as to be meaningless. Agriculture is an industry not an occupation. It may be that the Visa Officer would have been within her rights to refuse to process the application until the applicant selected an occupation rather than an industry. Since this did not occur, I express no opinion on it other than to remark that the application as received was apparently incomplete. However, the Visa Officer carried on and assessed the applicant as best she could.

[8]      One could make the argument that since the Visa Officer effectively selected the applicant's occupation, it was incumbent upon her to select one in which his chances of selection were the highest. But that has the effect of shifting the onus from the applicant to the Visa Officer. It is the applicant who must satisfy the Visa Officer that he satisfies all the requirements of the Immigration Act and Regulations. His failure to designate an occupation might well have been treated as a barrier to the further processing of his application. The fact that an assessment was carried out in spite of the defect cannot have the effect of making the Visa Officer responsible for not only making a choice for the applicant but also making the perfect choice.

[9]      There is an element of arbitrariness in selecting an occupation for assessment in which the applicant has no experience. When the occupation is chosen by the applicant, the applicant bears the burden of his choice. When the Visa Officer selects an occupation in circumstances where the applicant has not provided any meaningful guidance, it seems somewhat surreal to have the Visa Officer conduct an assessment on the basis of an occupation which will essentially guarantee that the application will fail due to the applicant's lack of work experience. But if the Visa Officer is responsible for selecting an occupation in which the applicant has experience, is she also responsible for selecting one for which there is occupational demand, since a zero score on this item is also fatal to the application? And if there are two possible choices, is the Visa Officer bound to choose the one which is most advantageous to the applicant? As this demonstrates, the imposition of a duty on the Visa Officer to act unilaterally to advance the applicant's position creates more problems than it solves. While it would be desirable if visa officers acted with an eye to the success of the application, the fact remains that the onus is squarely upon the applicant to identify the occupation in which he/she wishes to be assessed and to satisfy the Visa Officer that they meet all the requirements for the issuance of visas.

[10]      This applicant is responsible for the occupational designation which led him to be assessed as an Agricultural Specialist. If he wished to be assessed as a Technical Sales Specialist, it was for him to say so at the appropriate time. While this may seem harsh treatment for those applicants who do not have professional assistance and have never heard of the National Occupations Code, let alone consulted it, any other holding would transform visa officers into the applicant's involuntary immigration consultant.

[11]      In the circumstances, the application for judicial review will be dismissed.

ORDER

     The application for judicial review of the decision of Louise Côté, Visa Officer, dated October 5, 1999, is hereby dismissed.

                     "J.D. Denis Pelletier"

     Judge