Date: 20020509
Docket: IMM-3616-00
Neutral citation: 2002 FCT 541
Ottawa, Ontario, Thursday the 9th day of May 2002
PRESENT: The Honourable Madam Justice Dawson
B E T W E E N:
UDAY MITRA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Mr. Mitra applied for permanent residence in Canada in the independent category. He requested assessment in the occupation of Management Consultant, NOC 1122.1, "or alternatively, any other occupation that in your professional opinion will enable Mr. Mitra to qualify for permanent residence to Canada". This application for judicial review turns upon whether in rejecting his application for permanent residence the visa officer erred by failing to assess Mr. Mitra in an alternate occupation, or by failing to advise Mr. Mitra that his application would only be assessed in the occupation of management consultant.
[2] The Computer Assisted Immigration Processing System ("CAIPS") notes and the cross-examination of the visa officer on her affidavit filed in opposition to this proceeding establish that when interviewing and assessing Mr. Mitra's application, the visa officer knew that Mr. Mitra was requesting assistance in placing him in an alternate occupation, but that the visa officer took the position that it was not her job to provide that assistance. The parties agree that during Mr. Mitra's interview the visa officer did not advise Mr. Mitra that because he had not specified an alternate occupation he could only be assessed as a management consultant.
[3] I am satisfied the visa officer did not err in failing to assess Mr. Mitra in an alternate occupation for the following reasons.
[4] First, in Adami v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 669 (T.D.) Evans J., as he then was, reviewed the relevant jurisprudence of the Court and concluded that a visa officer is only required to assess an applicant in an occupation that the applicant has indicated that he or she is qualified for, and interested in pursuing in Canada. I agree that the weight of authority is to that effect.
[5] Second, in Warsi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1646 (T.D.) Rothstein J., as he then was, considered the failure of a visa officer to assess an applicant in related fields where the applicant had indicated that his intended occupation was "mechanical engineer or job in related fields". Justice Rothstein concluded that reference to "a job in related fields" did not designate an alternate occupation and found "no onus on the visa officer to review the CCDO [now the NOC] and attempt to decide in any given case whether a job is in a related field". Similarly, I find reference to "any other occupation that in your professional opinion will enable Mr. Mitra to qualify for permanent residence to Canada" does not designate an alternate occupation so as to trigger the obligation to assess in that intended occupation.
[6] I am also satisfied, notwithstanding the articulate submission made by counsel for Mr. Mitra, that the visa officer did not breach the duty of fairness by failing to advise Mr. Mitra that his application would only be assessed in the category of management consultant.
[7] Before setting out my reasons for that conclusion, I note that without doubt, it was bad practice for the visa officer not to have told Mr. Mitra that his application would only be assessed in the category of management consultant. It is unfathomable to me why the visa officer failed to do this. The visa officer's conduct leaves the impression of an arbitrary and dismissive attitude.
[8] As to why what I consider to be substandard conduct does not rise to the level of a breach of procedural fairness, I begin by considering that the duty of fairness is contextual, and is neither abstract nor absolute.
[9] In Khan v. Canada (Minister of Citizenship and Immigration) 2001 FCA 345; [2001] F.C.J. No. 1699 the Federal Court of Appeal observed that several factors operate to reduce the content of the duty of fairness owed to visa applicants, and in Patel v. Canada (Minister of Citizenship and Immigration) 2002 FCA 55; [2002] F.C.J. No. 178 the Federal Court of Appeal described the duty of fairness owed by a visa officer when determining a visa application by an applicant in the independent category to be located towards what was described as the lower end of the range.
[10] Having regard to the factors considered by the Court of Appeal in Khan, I find the following factors limit the content of the duty of fairness in the present case: the absence of the legal right to a visa; the less serious impact on an applicant that the refusal of a visa has when contrasted with the removal of a benefit; the imposition on the applicant of the burden of establishing eligibility for a visa; and the legislative parameters which govern the visa officer's duty to assess.
[11] Of these factors, the most significant in my view are the burden which the applicant faces to establish eligibility for a visa, and the relevant legislative provisions.
[12] Subsection 6(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") provides:
| 6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations.
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6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure.
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[13] This requires a visa officer to assess an immigrant who applies for landing in the manner prescribed in the Act and the Immigration Regulations, 1978, SOR/78-172 ("Regulations"). With respect to applicants in the independent category, subsection 8(1) of the Regulations provides:
| 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
(b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of Schedule I, other than the factor set out in item 5 thereof;
(c) in the case of an entrepreneur, an investor or a provincial nominee, on the basis of each of the factors listed in Column I of Schedule I, other than the factors set out in items 4 and 5 thereof.
(d) [Repealed, SOR/85-1038, s. 3]
(e) [Repealed, SOR/91-433, s. 3]
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8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint :
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
b) dans le cas d'un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, autre que le facteur visé à l'article 5 de cette annexe;
c) dans le cas d'un entrepreneur, d'un investisseur ou d'un candidat d'une province, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, sauf ceux visés aux articles 4 et 5 de cette annexe;
d) [Abrogé, DORS/85-1038, art. 3]
e) [Abrogé, DORS/91-433, art. 3]
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[14] This imposes a mandatory duty to assess an immigrant on the basis of the factors listed in Column I of Schedule I to the Regulations.
[15] The jurisprudence is settled that a visa officer is obliged to assess in respect of the occupation an applicant states he or she intends to pursue in Canada. See: Uy v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 201 (C.A.); Issaeva v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1679 (T.D.).
[16] I can find no obligation, however, to assess in an occupation which an applicant has not stated that he or she intends to pursue in Canada. Such a result, in addition to being counter-intuitive, would be contrary to the Regulations.
[17] Factor 4 in Column I of Schedule I to the Regulations provides:
| 4. Occupational Factor
__(1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation
(a) for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification;
(b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and
(c) that the applicant is prepared to follow in Canada.
[underlining added]
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_4. Facteur professionnel
(1) Des points d'appréciation sont attribués en fonction des possibilités d'emploi au Canada dans la profession_:
a) à l'égard de laquelle le requérant satisfait aux conditions d'accès, pour le Canada, établies dans la Classification nationale des professions;
b) pour laquelle le requérant a exercé un nombre substantiel des fonctions principales établies dans la Classification nationale des professions, don't les fonctions essentielles;
c) que le requérant est prêt à exercer au Canada
[Le souligné est de moi.]
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[18] Absent a stated intention to follow a particular occupation in Canada there is therefore no basis for an assessment under the occupational function. Further, assessment pursuant to the education and training factor, and the experience factor, is premised upon the occupation in which the applicant is assessed under the occupation factor.
[19] In the circumstance where no other intended occupations were stated, I fail to see how Mr. Mitra was denied procedural fairness when the visa officer failed to tell him that the visa officer would not assess him in what, in essence, was a non-existent alternate intended occupation.
[20] Mr. Mitra is a well-educated individual who was represented by a professional immigration consultant. That consultant prepared Mr. Mitra's application for permanent residence and corresponded with the visa post about that application. The consultant's letterhead describes the consultant to be "Canadian Immigration, Business & Settlement Specialists" and to be a member of the Association of Immigration Counsel of Canada.
[21] Mr. Mitra was convoked for an interview during which he could have requested assessment in an alternate occupation or stated his intent to pursue another occupation. At that interview four letters were discussed from Canadian recruitment companies which Mr. Mitra says described his potential employability in Canada as a management consultant. Mr. Mitra provided a letter from a prior employer which described the role Mr. Mitra had filled as a management consultant. Mr. Mitra must be taken to know that he advised of no other intended occupation and that no other occupation was discussed during the interview.
[22] On these particular facts, I fail to see how the duty of fairness can be said to have been breached. Another conclusion might have been available on different facts.
[23] Mr. Mitra also complained that the visa officer did not consider the job description he had provided with his application, but instead threw it into the wastepaper basket during the interview. The visa officer in her affidavit denied this, denied ever seeing the document, and said that she considered all of the information which was provided. In view of the fact that the job description is not shown in the list of documents which were said to be provided with the application for permanent residence, I am not prepared to prefer the evidence of Mr. Mitra over that of the visa officer on this point.
[24] The visa officer awarded zero units of assessment on account of the occupation factor, and I have found no reviewable error on the grounds asserted by Mr. Mitra. It follows, by application of subsection 11(2) of the Regulations, that Mr. Mitra was not entitled to the issuance of an immigrant visa.
[25] It is therefore not necessary to consider the errors alleged in respect of the assessment of Mr. Mitra's educational qualifications, family relationship, and personal suitability. The application for judicial review will be dismissed.
[26] Counsel for Mr. Mitra sought certification of the question as to whether there is a duty to inform an applicant that his or her application cannot be processed on the basis on which it has been framed. Counsel for the Minister opposed certification of any question because the Court of Appeal has already settled the law as to the nature of the duty of fairness owed in this circumstance.
[27] Because of the contextual nature of the duty of fairness, and that this decision turns on a specific fact situation, I am not satisfied that a question of general application is raised. No question will be certified.
ORDER
[28] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question is certified.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3616-00
STYLE OF CAUSE: UDAY MITRA
v.
M.C.I.
PLACE OF HEARING: TORONTO, ON
DATE OF HEARING: MAY 1, 2002
REASONS FOR ORDER AND ORDER OF MADAM JUSTICE DAWSON
DATED: MAY 9, 2002
APPEARANCES:
MR. CARL H. CASSIANFOR THE APPLICANT
MS. NEETA LOGSETTYFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
DAIGLE & HANCOCKFOR THE APPLICANT
Barristers & Solicitors
Mississauga, ON
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada
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