Hage v. Canada (Minster of Citizenship and Immigration), 2002 FCT 5

                                                                                                                                            Date: 20020103

                                                                                                                  Court File No.: IMM-3312-00

                                                                                                                   Neutral Citation: 2002 FCT 5

Ottawa, Ontario, this 4^th day of January, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                           KAMEL IBRAHIM HAGE

                                                                                                                                                       Applicant

                                                                              - and -

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 The applicant is from Lebanon and since February 1985, has worked as Marketing Director for Arabian Hala Company, the Freemans Mail Order Catalogue, in Riyadh, Saudi Arabia. On August 26, 1998, he applied for permanent residence in Canada under the National Occupational Classification (NOC) 4163, as a Marketing Analyst. He attended an interview with his wife and son on March 28, 2000. He seeks judicial review of the April 14th, 2000 decision of a visa officer who refused his application.                                 

[2]                 In his current position, the applicant is responsible for all sales, distribution and marketing for the company as well as assisting the Manager with the overall planning and operational management issues. From 1981 to 1985, the applicant worked as a Marketing Representative and Marketing Director at the Abdul Ghani El Ajou Corporation, agent for Canon Copiers in Riyadh. He was at that point responsible for sales and marketing of Canon photocopiers and related supplies.

[3]                 The applicant was awarded a total of seventy one (71) units of assessment. The visa officer did not award the applicant the requisite minimum one unit of assessment for occupational factor.    The visa officer stated:

As I explained at your interview, I am not satisfied that you meet the employment requirements as set out under the NOC for a marketing analyst which is a degree in economics, commerce, business administration or public administration. Schedule 1 of the Regulations details units of assessment to be awarded for the factors shown above. I have awarded zero under factor 4 of the Schedule, occupational factor. Subject to subsection 11(2) of the Regulations, a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of column 1 of Schedule 1.

You therefore come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act and your application has been refused.

[4]                 The visa officer awarded the following units of assessment for the various factors under a Marketing Analyst, classification:

Factor                                                                                                                                                                  Units

Age                                                                                                                                                                    10

Occupational factor                                                                                                                                        0

Education/Training Factor                                                                                                         17

Experience                                                                                                                                                         6

Arranged Employment                                                                                                                                  0

Demographic Factor                                                                                                                                       8

Education                                                                                                                                                          13

English                                                                                                                                                                9

French                                                                                                                                                                 3

Bonus (close relative in Canada)                                                                                                               0

Personal Suitability                                                                                                                                         05

Total:                                                                                                                                                                   71                              

[5]                 The applicant contends that the visa officer erred in refusing the application arguing that consideration should have been given to the applicant's education and significant experience, to overcome the regulatory requirement of a university degree. The applicant also submits that the visa officer should also have evaluated him under classification 1122, Professional Occupations in Business Services to Management, a classification that does not necessarily require a bachelor's degree. The contention being that many of the functions in the two classifications are similar. The applicant also submits that the visa officer erred in not exercising her discretion pursuant to subsection11(3) of the Immigration Regulations, 1978, SOR/78-172, and approve the application. The applicant also argues that the visa officer failed to observe principles of natural justice, procedural fairness and ignored evidence. Finally, the applicant argues that the respondent failed in its duty to determine and set educational and employment specifications for various occupations. The respondent takes issue with each of these arguments.

[6]                 Madam Justice Reed of this Court in Hao v. Canada (The Minister of Citizenship and Immigration), [2000] F.C.J. No. 296, online: QL, reviewed the jurisprudence of this Court and adopted the standard of reasonableness simpliciter, with respect to the review of a visa officer's decision. She wrote at paragraphs 6 and 7 of her reasons:

[6] In the present case, there is no privative clause, and there is no requirement that leave be granted before a judicial review can proceed. There is a statutory right to judicial review, provided for by section 18.1 of the Federal Court Act. These factors tip the balance toward the unreasonableness simpliciter end of the scale.

[7]    Visa officers have considerable expertise in assessing applicants. The decision-making is one that requires an assessment of the personal characteristics of individuals, and depends to a significant extend on a personal interview of the applicant. There is significant discretion given to visa officers, although that discretion is constrained by the existence of the points assessment system (see Zhao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 213, (IMM-3382-98, February 17, 2000))...

[7]                 I endorse Justice Reed's analysis and adopt the reasonableness simpliciter standard for the purpose of this application for judicial review.

[8]                 Item 17 of the visa application shows "Marketing Analyst" as the applicant's intended occupation in Canada. The NOC description of "Marketing Analyst" sets out a mandatory employment requirement, namely, a bachelor's degree in economics, commerce, business administration or public administration. Further, schedule I of the Immigration Regulations requires that the applicant meet the employment requirements of his intended occupation, in order to be awarded any units of assessment of occupational factor. The evidence is that the applicant does not possess the required bachelor's degree in economics, commerce, business administration or public administration. It is my view that the visa officer did not err in awarding zero units for occupational factor, and correctly concluded that such an award of zero units was indeed a bar to the applicant receiving a visa. The language of the regulation is imperative and imposes a requirement that the visa officer must respect. I am not persuaded by the argument that the applicant's education and experience should serve to overcome the mandatory requirement of a bachelor's degree. Nor am I persuaded that because occupations, Advertising and Marketing Consultant (NOC 1122.2) and Management Consultant (NOC 1122.1), require the same or similar duties to the duties set out in the NOC for category 4163.0, it should necessarily follow that since experience can overcome an employment requirement in the two former occupations, the same consideration should apply to the latter. The reason is simple, in NOC 4163 ("Marketing Analyst"), the educational requirement is mandatory and for the former two categories it is not (only "usually required").

[9]                 The applicant's second argument is that the visa officer erred in failing to consider the applicant for the virtually identical occupation of Marketing Consultant as set out in NOC 1122. The evidence is undisputed, the applicant did not request to be assessed under the alternative occupation of "Marketing Consultant". In a letter, dated April 12, 2000, to the Immigration Section of the Canadian High Commission in London, counsel for the applicant submitted that the interviewing officer should assess the applicant in the area in which he applied, namely "Marketing Analyst"(Certified Tribunal record at page 83). On cross examination, the visa officer stated that she believed that the applicant was going to work as a marketing analyst, "...because that's what he said he was going to do in his application." When asked whether the applicant showed any inclination to follow a different occupation other than the one in his application, she stated, "...He didn't express to me an intention to work in any other occupation." (Cross-examination of Anne Elizabeth Vanden Bosch, visa officer, Tab 8 at page 8 of the Applicant's Record.)    The visa officer further stated (at page 9 of the same transcript), that, "...If any person at an interview expresses a wish to follow another occupation or be assessed in another occupation, I would like to assess them in that occupation and I would do so." At page 29 of the transcript of cross-examination, in answering a question dealing with the occupation the applicant intended to pursue in Canada, the visa officer stated, "...He wasn't, as far as I was aware, anywhere prepared to follow the occupation of an advertising and marketing consultant. Therefore, there was nothing that jumped out at me that said I should therefore assess in another occupation, even though he had done some of the duties."

[10]              In Shen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 2031, online: QL, Justice McDonald considered this issue of alternative occupations and stated that:

It is well established that a visa officer has a duty to consider alternative occupations available to an applicant when assessing an application for permanent residence. Nonetheless, this duty does not appear to extend to assessing occupations which are not brought to the attention of the visa officer either in the application or at the interview. This is particularly true, where the application for permanent residence was prepared with the assistance of counsel... [footnote omitted]

In the Shen case, the learned Judge thought it unreasonable to extend the visa officer's obligation to the consideration of any alternative occupation which may be inferred from the applicant's experience and found, in the circumstances, no such obligation.

[11]            The undisputed facts of the case before me lead me to conclude as did Justice McDonald in Shen, supra. The applicant at no time brought to the attention of the visa officer a request to be assessed in the alternative occupation NOC 1122. There is no reference to an alternative occupation in his application which was prepared with the help of counsel. A review of the two occupations, NOC 1122, Professional Occupations in Business Services to Management, and NOC 4163, Economic Development Officers and Marketing Researchers and Consultants, shows that they are each found in separate job groups. Marketing and Advertising Consultants are found in the "Business, Finance and Administration Occupations Group" and Marketing Analyst are part of the "Occupational, Science, Education, Government Service and Religions Group." Finally, the evidence points to one and only one occupation that the applicant intended to pursue in Canada, that of a Marketing Analyst. I conclude that the visa officer had no duty to consider the alternative occupation of Marketing and Advertising Consultant and, therefore, did not err in failing to do so.

[12]            Counsel for the applicant also argues that the visa officer failed to observe a principle of natural justice, procedural fairness, and ignored evidence. The visa officer shared with the applicant her concerns about his failure to meet the employment requirements, and that his applications may be refused. The officer readily acknowledged the applicant's experience and education, and awarded him reasonable units of assessment for both. The applicant was represented by counsel, and ought to have known the case he had to meet from the outset, including the requirement for a bachelor's degree, which he did not possess. Having considered all the evidence, I am of the opinion that the visa officer did not fail to observe the principles of natural justice of procedural fairness.

[13]            The applicant also argues that the visa officer erred in failing to positively exercise discretion under subsection 11(3) of the Immigration Regulations. The section in question provides for a visa officer, who is of the opinion that there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant of becoming successfully established in Canada, to recommend to a senior immigration officer that a visa be granted or refused. The evidence is that no request was made by the applicant that the visa officer exercise positive discretion under subsection 11(3) of the Immigration Regulations. The jurisprudence of this Court has established that there is generally no duty on a visa officer to make a decision unless the applicant has asked the officer to exercise discretion under subsection11(3). ( Yeung v. M.C.I. (2000), 186 F.T.R. 129; Lam v. M.C.I. (1998), 152 F.T.R. 316) Although no request was made by the applicant, the visa officer did confirm on cross-examination that she did indeed consider whether an exercise of positive discretion was warranted, and concluded that it was not.

[14]            It is generally accepted that a Court should only intervene on judicial review when an officer's exercise of discretion can be characterized as arbitrary, capricious or otherwise unreasonable. (Liu v. M.C.I. IMM-3479-98. (February15, 2000), (F.C.T.D.)) I am of the view the applicant has failed to satisfy me that the visa officer's decision was arbitrary, capricious or otherwise unreasonable. After consideration of all of the evidence, I conclude that the visa officer's decision to not exercise her discretion positively, was reasonably open to the her.

[15]            Finally, the applicant submits that the respondent failed in its duty to conduct consultations pursuant to Schedule 1, Factor 4, subparagraph 2 of the Immigration Regulations. The subparagraph provides as follows:

(2) The employment opportunities shall be determined by taking into account Labour market activity on both an area and a national basis, following consultation with the Department of Human Resources Development, provincial governments and any other relevant organizations.

The applicant also argues that, if such consultations were conducted, the respondent erred in determining the educational and employment specifications for related occupations listed in NOC 4163 and NOC 1122, since they are not reflective of market conditions, and result in an unfair bias against the applicant due to his lack of formal education.

[16]            I find both of these arguments without merit. There is no duty in the respondent or the visa officer to conduct the consultations referred to in the Regulations. The NOC is a systematic taxonomy of occupations in the Canadian labour market, developed by Human Resources Canada (HRDC), for use by government and other agencies dealing with the Canadian Labour market. The respondent has no obligation or right, for that matter, to consult with HRDC with respect to the "employment opportunities" referred to in subsections (1) and (2) of Factor 4. Nor is the respondent responsible to determine and set the employment and education specifications for the respective occupations. Even if the educational and employment specifications were indeed not reflective of the market conditions, an allegation for which there is no evidence, this is certainly not the proper forum nor the appropriate process to have such an issue addressed.

[17]            For the above reasons the judicial review will be dismissed.

[18]            The applicant has proposed four lengthy questions for certification, each of which raises a number of issues. The proposed questions essentially raise issues regarding:

           (a)        The mandatory requirements set out in the description of Occupational Factor under the Immigration Regulations;

           (b)        The exercise of positive discretion by the visa officer under subsection 11(3) of the Immigration Regulations to override the applicant's failure to meet the mandatory requirement of the NOC;

           (c)        The fairness obligation in the application of the visa officer's discretion under subsection 11(3) of the Immigration Regulations;

           (d)        Consideration of Alternative Occupation when not brought to the attention of the visa officer.

I have carefully reviewed the proposed questions for certification submitted by the applicant and have considered both the applicant's and the respondent's written submissions on the proposed questions. I am satisfied that the issues raised by the proposed questions do not raise a question of serious or general importance as contemplated by section 83 of the Immigration Act, R.S.C. 1985, c. I-2. Therefore, I do not propose to certify a question.

                                                                            ORDER

THIS COURT ORDERS that:

1.         This judicial review is dismissed;

                                                                                                                                 "Edmond P. Blanchard"           

                                                                                                                                                               Judge