Crisologo v. Canada (Minister of Citizenship and Immigration), 2002 FCT 382

Date: 20020405

Docket: IMM-1958-01

Neutral citation: 2002 FCT 382

BETWEEN:

                                                    ANTONIO TORIO CRISOLOGO

                                                                                                                                                     Applicant

                                                                                 and

                                                   THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                               Respondent

                                              REASONS FOR ORDER AND ORDER

HENEGHAN J.

INTRODUCTION

[1]                  Mr. Antonio Torio Crisologo ("Applicant") seeks judicial review of a decision of Mr. Rodney J. MeGill ("Visa Officer") made February 2, 2001. In this decision, the Visa Officer refused the Applicant's application for permanent residence in Canada.

FACTS

[2]                  The Applicant is a citizen of the Philippines. He is married and the father of two children, and lives with his immediate family in Quezon, Phillippines.

[3]                  In March 1998, the Applicant submitted an application for permanent residence in Canada, under the independent category. His application was submitted to the Canadian Embassy in Manila. He requested that he be assessed as an "Adverting/Marketing Consultant", National Occupational Classification ("NOC") 1122.2 ("NOC 1122.2").

[4]                  The Applicant had obtained a Bachelor's degree of fine arts, majoring in advertising, from the University of Santo Tomas in Manila in March 1977. His employment experience was in the advertising industry, primarily on the artistic side, and included work as a junior artist, visualizer and line specialist, senior art director and consultant.

[5]                  The Applicant attended at the Canadian Embassy in Manila for an interview on February 28, 2001. According to his affidavit filed in support of this application, the Visa Officer did not question him about specific courses he followed as part of his university study.

[6]                  According to the affidavit filed by the Visa Officer, that officer had reviewed in detail the transcripts of the Applicant's file, including university transcripts. The Visa Officer concluded that the courses followed by the Applicant did not meet the employment requirements of NOC 1122.2 because they did not constitute a bachelor's degree or a college diploma in business administration or commerce.

[7]                  The Visa Officer informed the Applicant that he had applied in a category for which he did not meet the employment requirements provided for in the NOC and that his application could not be approved against an assessment as a Marketing/Advertising Consultant. Furthermore, the Visa Officer advised the Applicant that he could not meet the employment or knowledge requirements of the Canadian advertising and marketing industry.

[8]                  The Visa Officer then assessed the Applicant as an art director, NOC 5421. However, the Visa Officer informed the Applicant that his application could not be approved because he received an assessment of less than 70 units of assessment.

[9]                  A refusal letter dated February 28, 2001 was sent to the Applicant, following his interview. The relevant portion of this letter reads:

APPLICANT'S SUBMISSIONS

[10]            The Applicant argues that he was entitled to a formal assessment in the occupation he identified as his intended occupation in Canada and that the formal assessment must be set out in the refusal letter. In this regard, the Applicant relies on Uy v. Canada (Minister of Citizenship and Immigration), [1991] 2 F.C. 201; Issaeva v. Canada (Minister of Citizenship and Immigration) (1996), 124 F.T.R. 178; Birioulin v. Canada (Minister of Citizenship and Immigration) (1999), 46 Imm. L.R. (2d) 178.

[11]            Second, the Applicant submits that the Visa Officer erred in law because he failed to consider his education, training and experience in its entirety, to determine whether he was employable in his intended occupation despite the fact that he did not have the "usual" educational requirements for this occupation, according to the NOC. Here the Applicant relies on Karathanos v. Canada (Minister of Citizenship and Immigration) (1999), 176 F.T.R. 296 (F.C.T.D.).

[12]            Next, the Applicant argues that the Visa Officer erred in concluding that his experience did not fall within the definition of Advertising/Marketing Consultant, NOC 1122.2, because his experience related mainly to the artistic component of the advertising industry, rather than to the strategic side of that business. The Applicant says that by adopting this narrow interpretation, the Visa Officer had imposed an additional requirement into the NOC 1122.2 definition, thereby committing an error in law.

[13]            Finally, the Applicant argues that the Visa Officer erred in law in the manner he conducted the assessment pursuant to Regulation 11(3)of the Immigration Regulations, 1978, SOR/78-172, as amended. Although the Visa Officer did consider whether he should exercise his discretion under this Regulation, the Applicant argues that since he did not complete a point calculation under NOC 1122.2, the Visa Officer could not determine whether there were good reasons why the units of assessment awarded for that occupation did not reflect the chances of the Applicant and his dependents becoming successfully established in Canada.

RESPONDENT'S SUBMISSIONS

[14]            The Respondent relies primarily upon the standard of review set out in [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at pages 7 - 8, concerning the degree of deference due to the discretionary decision made by a statutory decision-maker.

[15]            The Respondent argues that where a statutory decision-maker has exercised that discretion in good faith, pursuant to any applicable principles of natural justice and in the absence of reliance on extraneous or irrelevant matters, the decision should stand.

[16]            The Respondent argues that the Visa Officer was correct in his assessment that the Applicant did not meet the qualification under NOC 1122.2 because he did not hold any of the degrees or certifications referred to in the definition for that occupation.

[17]            The Respondent further submits that the Visa Officer was not required to conduct a formal points assessment for an occupation which the Applicant was not qualified and in this regard relies on Lim v. Canada (Minister of Employment and Immigration) (1991), 121 N.R. 241 (F.C.T.D.), Goussev v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 140 (F.C.T.D) and Jain v. Canada (Minister of Citizenship and Immigration) (June 21, 2000), IMM-4675-99, [2000] F.C.J. No. 977 (QL) F.C.T.D.

[18]            The Respondent says that the case of Uy v. Canada (Minister of Citizenship and Immigration), supra, can be distinguished from the present case. According to the Respondent, in Uy, the visa officer simply refused to assess the applicant at all in his stated intended occupation. That did not occur here.

[19]            The Respondent also submits the Visa Officer was correct in his interpretation of the occupational definition of NOC 1122.2 and that he did not introduce any additional requirements into this definition.

[20]            The Respondent argues that the Visa Officer properly exercised his discretion pursuant to Regulation 11(3) when he declined to grant positive discretion to the Applicant. The Respondent says that the factors to be taken into account under Regulation 11(3) relate to an applicant generally, not to a specific occupation. As the Visa Officer properly assessed the factors in his exercise of his discretion, the decision should stand.

ISSUES

[21]            The following issues arise from this application:

(1)                 Did the Visa Officer erred in law by failing to formally assess the Applicant as an Advertising/Marketing Consultant, NOC 1122.2?

(2)                 Did the Visa Officer properly determine that the Applicant did not meet the employment requirements under NOC 1122.2?

(3)                 Did the Visa Officer properly assess the Applicant pursuant to Regulation 11(3)?

ANALYSIS

[22]            The standard of review for discretionary decision of a visa officer is that of deference. The test was stated in [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, supra, as follows:

[23]            This standard of review has not been significantly altered by the decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In Liu v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 251, the Court found that Baker does not significantly alter the standard of review for the discretionary decisions of visa officers in those cases where there are no compassionate and humanitarian factors and where the visa officer does not ignore values fundamental to Canadian society.

[24]            The strongest argument advanced by the Applicant is that the Visa Officer erred in failing to formally assess him as an Advertising/Marketing Consultant, NOC 1122.2, as requested in the covering letter which accompanied his application for permanent residence. By "formal" assessment he means that his points allocation should have been itemized in the decision. Here, the Visa Officer did not set out a points allocation under NOC 1122.2 in his refusal letter or indeed in the CAIPS notes. Instead, the refusal letter reads:

[25]            This passage suggests that the Visa Officer did indeed consider the Applicant in the designated category. However, it also appears that the Visa Officer decided that the Applicant did not qualify for the named category because he lacked the usual educational requirements specified for that occupation. The NOC provides the following under the heading "Employment Requirements":

[26]            It appears that the Visa Officer decided that since the Applicant did not possess one or more of the educational requirements, he did not qualify for the occupation of Marketing/Advertising Consultant and that no formal assessment in this occupation was required.

[27]            The Applicant relies on the decision in Uy, supra, in support of his argument that a formal assessment, including the award of points for the identified factors, must be carried out in respect of his intended occupation. That decision was followed by Rothstein J., as he then was, in Issaeva v. Canada (Minister of Citizenship and Immigration), supra, at pages 180 - 181 where he said as follows:

[28]            This reasoning was followed and applied in Birioulin v. Canada (Minister of Citizenship and Immigration) (1999), supra.

[29]            However, the Respondent relies on other jurisprudence to support her argument that once a visa officer has decided that a person is not qualified to meet the requirements of an identified occupation, it is unnecessary to complete an assessment. In Goussev v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 140 (Fed. T.D.), Reed J. commented on these authorities and said:

[30]            In my opinion, Goussev, supra, does not support the Respondent's argument that a visa officer is not obliged to conduct a points assessment in the first place. That case says if it is clear that an assessment for a specific occupation will be unsuccessful, there is no obligation to continue. In the present case, it appears that an assessment in the intended occupation was not conducted.

[31]            However, it is clear that the Visa Officer based his decision not to conduct an assessment on his determination that the Applicant lacked the employment requirements for the position. He concluded that since the Applicant held no degree or certification in the fields of business administration or commerce, that he lacked the requisite educational background. In my opinion, this interpretation is erroneous because it strains the language in the NOC definition. That definition refers to this business degree as being "usually" required. That language suggests an element of flexibility which was ignored by the Visa Officer.

[32]            In Karathanos v. Canada (Minister of Citizenship and Immigration), supra, Sharlow J., as she then was, adopted the comments of Reed J. in Hara v. Canada (Minister of Citizenship and Immigration) (1999), 2 Imm. L.R. (3d) 316 (Fed. T.D.) at paragraph 23, page 112 as follows:

[33]            In my opinion, the Visa Officer erred in his consideration of the Applicant's qualification for the intended occupation. He relied on this error to deny the Applicant an assessment in accordance with the Immigration Regulations, 1978, SOR/78-172, as amended, Regulation 8, as per Uy, supra, and Issaeva, supra. In view of these errors, I conclude that this application should be allowed and the matter remitted to a different visa officer for determination.

[34]            While the disposition of this application does not turn on the Applicant's submissions concerning the exercise of discretion pursuant to section 11(3) of the Regulations, I will comment briefly on those submissions.

[35]            In my opinion, the Visa Officer properly exercised his discretion here since the factors to be taken into consideration relate generally to a prospective immigrant, and not to a specific occupation.

[36]            Counsel advised that there is no question for certification.

ORDER

[37]            The application is allowed and the matter remitted to a different visa officer for determination.

(Sgd.) "Elizabeth Heneghan"              J.F.C.C.

Vancouver, British Columbia

April 5, 2002

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                            IMM-1958-01

STYLE OF CAUSE:                        Antonio Torio Crisologo v. MCI

PLACE OF HEARING:                   Vancouver, British Columbia

DATE OF HEARING:                      April 2, 2002

REASONS FOR ORDER AND ORDER OF THE COURT BY: Heneghan J.

DATED:                                               April 5, 2002

APPEARANCES:                          

Peter A. Chapman                                                                      FOR APPLICANT

Pauline Anthoine                                                                        FOR RESPONDENT

SOLICITORS OF RECORD:

Chapman & Company Law Corporation                               FOR APPLICANT

Vancouver, British Columbia

Deputy Attorney General of Canada                                      FOR RESPONDENT

Department of Justice

Vancouver, British Columbia