Elijah v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1082

Date: 20021017

Docket: IMM-4638-01

Neutral citation: 2002 FCT 1082

BETWEEN:

                         KENNETH EDWARD ELIJAH

                                                                Applicant

AND:

             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                               Respondent

                          REASONS FOR ORDER

ROULEAU, J.

[1]                 This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 respecting a decision of Visa Officer Sara Trillo of the Canadian Consulate in New York City, United States ("the Visa Officer"), dated August 28, 2001. The applicant's application for permanent resident status in Canada ("the Application") was denied on the grounds that the applicant failed to obtain at least 70 units of assessment, the minimum number required to comply with the selection criteria for immigration to Canada pursuant to s. 9(1)(b) of the Immigration Regulations, 1978 ("the Regulations").

[2]                 The applicant now seeks an order quashing this decision and referring the matter back to a different visa officer for a reconsideration of the Application.

[3]                 The applicant is a citizen of India born on November 25, 1970. He is married and has one child. He speaks, reads and writes English fluently.

[4]                 On May 16, 2000, the applicant made an application for permanent residence in Canada in the Independent category through the Canadian Embassy in Buffalo, New York. He indicated on his Application that his intended occupation was one of "Financial Manager". The Application was paper-screened as Financial Manager, NOC 0111, and coded in the Independent category. The applicant was awarded the maximum experience points in six units of assessment. In accordance with subsection 11.1(a) of the Immigration Regulations, 1978 ("Regulations"), the applicant was then asked to appear for an interview to verify the information set out in his application as to his experience and qualifications and to determine his personal suitability.

[5]                 The Visa Officer interviewed the Applicant on August 23, 2001. The latter had arrived in the United States from India to attend his interview. He stated that his wife and daughter would accompany him to Canada. The Applicant indicated that he was immigrating to Canada as it was a developed country and had a well-balanced financial structure. He informed the Visa Officer that he had never visited Canada and nor did he have any close relatives here.

[6]                 The Visa Officer, with the applicant, reviewed the duties and requirements as they appear under the National Occupational Classification for the occupation in which he applied and wished to be assessed as a Financial Manager, NOC 0111. She advised the applicant that he had not performed a substantial amount of the essential duties as they appear under the NOC for this occupation. The Visa Officer was of the opinion, and she advised the applicant of this at the interview, that he did not have experience in the intended occupation. She informed the applicant of her concerns and gave him an opportunity to respond.

[7]                 On August 28, 2001, the Visa Officer reviewed the applicant's file and came to the same conclusion as during his interview. She further determined that the applicant would not establish himself successfully in Canada. He failed on points, and the Visa officer satisfied herself that the units of assessment adequately reflected his chances of successful establishment in Canada.

[8]                 By letter dated August 28, 2001, the Visa Officer informed the applicant of the reasons for her refusal. In short, his application was denied on the basis that he had received less than 70 units of assessment, pursuant to sections 9(1)(b) of the Regulations, and that he had received no points in the Occupational and Experience factors. Indeed, sections 11(1) and (2) of the Regulations require that an applicant must be awarded at least one unit of assessment under these factors in order for an immigrant visa to be issued.

[9]                 The applicant now seeks to have this decision overturned in the present application for judicial review.

[10]            The refusal letter of August 28, 2001 expresses the Visa Officer's decision and reasons as follows:

I HAVE COMPLETED THE ASSESSMENT OF YOUR APPLICATION AND REGRET TO INFORM YOU THAT I HAVE DETERMINED THAT YOU DO NOT MEET THE REQUIREMENTS FOR IMMIGRATION TO CANADA.

PURSUANT TO SUBSECTION 8(1) OF THE IMMIGRATION REGULATIONS, 1978, INDEPENDENT APPLICANTS, THE CLASS IN WHICH YOU HAVE APPLIED, ARE ASSESSED ON THE BASIS OF THE FACTORS OUTLINED IN SCHEDULE I OF THE IMMIGRATION REGULATIONS. THESE FACTORS ARE AGE, OCCUPATIONAL FACTOR, EDUCATION AND TRAINING, EXPERIENCE, ARRANGED EMPLOYMENT OR DESIGNATED OCCUPATION, DEMOGRAPHIC FACTOR, EDUCATION, KNOWLEDGE OF ENGLISH AND FRENCH LANGUAGES AND PERSONAL SUITABILITY. YOU WERE ASSESSED IN THE OCCUPATION IN WHICH YOU INDICATED THAT YOU WISHED TO BE ASSESSED, FINANCIAL MANAGER, NOC 0111. YOU WILL FIND HEREAFTER THE UNITS OF ASSESSMENT AWARDED FOR THE SELECTION CRITERIA FOR YOUR INTENDED PROFESSION:

AGE                                 10

OCCUPATIONAL FACTOR         00

EDUCATION AND TRAINING             15

EXPERIENCE                          00

ARRANGED EMPLOYMENT         00

DEMOGRAPHIC FACTOR          08

EDUCATION                           15

ENGLISH                              09

FRENCH                       00

PERSONAL SUITABILITY        04

TOTAL                                61

[11]            Further, appended to the Tribunal Record are the Visa Officer's CAIPS notes which provide the additional information given in support of the refusal of the Application analysing meticulously the letters filed in support from former employers.

[12]            The central issue in this application is whether the Visa Officer's assessment of the applicant under the Occupational Factor and Experience factor for the intended occupation of Financial Manager 0111 was unreasonable, based on the evidence. This application also raises the question of whether the Visa officer erred in her assessment of the applicant's personal suitability points.

[13]            The applicant first submits that the Visa Officer misinterpreted the definition of "Financial Manager" or misapplied the definition to the facts of his case.

[14]            It is submitted the Visa officer should have recognized the applicant as a financial manager. She granted him 0 units of assessment in that occupation when she should have awarded 3.    According to the General Occupations List, a financial manager has an Education and Training factor ("ETF") of 15. If the applicant is assessed as a financial manager, he should have received 15 points in this category, which was the case. However it is impossible that the Visa Officer may have done this while granting 0 points for occupation. The two elements should be calculated together. It is submitted that the fact that 15 ETF points were awarded to the applicant entails that the latter was in fact recognized by the Visa Officer as a financial manager.

[15]            The applicant also observes that after listing in her CAIPS notes the applicant's duties with his current employer, United Phosphorus Ltd., the Visa Officer stated she was of the impression that the applicant's main duties with this employer did not conform with the NOC for the occupation of financial manager. It is argued that it is clear that the applicant's duties did conform with the NOC definition of a financial manager, particularly if a broad interpretation of the definition is adopted.

[16]            The applicant then submits that the Visa Officer incorrectly assessed the applicant under the "Experience" factor. Up to a maximum of eight units may be granted under this heading; the Visa Officer erred when she awarded zero points in this category. In support of his contention, the applicant relies on the commentaries in the Citizenship and Immigration Canada policy manual Chapter OP-5, "Processing Independent Immigrants", which state the following under the "Experience" heading:

In general, the higher the ETF the more points may be allotted for experience. The rationale for this is that in complex occupations more experience makes an employee more valuable. In less complex occupations this is not the case. Accordingly, more points are awarded to a cabinet maker with 2 years experience than a general labourer with 15 years experience.

Experience may be awarded according to the following grid:

Work Experience

[17]            Considering that the Visa Officer granted the Applicant 15 ETF points, the applicant should have been granted 6 units of assessment for his experience as a financial manager.

[18]            The applicant submits that the Visa Officer erred when she disregarded the letter from the managing director of the United Phosphorus company, a large international corporation with 2,500 employees. According to the senior general manager of that company, the applicant performs some of the necessary functions in conformity with the NOC. In his letter, he outlines his duties. The Visa Officer erred in law in her interpretation and application of the facts of this case to the description of a financial manager in NOC 0111.

[19]            The applicant states that the Visa Officer erred in her assessment of personal suitability points. She would have awarded more personal suitability points if she had not erred in her assessment of the applicant's work experience.

[20]            Having carefully reviewed the written submissions of the parties and the Certified Tribunal Record filed with this Court as well as the affidavit of the Visa Officer, I am of the view that the decision in this case is reasonable in light of the evidence before her.

[21]            The applicant's first ground for review is that the Visa Officer erred in awarding the applicant zero points in the Occupational Factor despite having awarded him 15 units in the Educational Training Factor for the occupation of Financial Manager. I agree. The commentaries in the Citizenship and Immigration Canada policy manual Chapter OP-5, "Processing Independent Immigrants" provide the following under the "Employment training factor (ETF)" heading:

This factor is used to assign a unit equivalent to the amount of formal education and training required for average performance in the occupation in which an applicant is assessed. Once you have determined that an applicant is qualified in the occupation in which he or she is assessed, ascertains the Employment Training indicator (ETI)value of that occupation in the National Occupation Classification (NOC) Counselling handbook and converts that numerical value to the appropriate number of units of assessment under the ETF, to the maximum of 18 [...] (Emphasis added)

[22]            Under the "Occupation factor", the commentaries read:

"The General Occupations List"specifies a variety of occupations each with an assigned unit of assessment value that ranges between a minimum of 1 and a maximum of 10 units. It is important to note that point values on the list are not directly tied to labour market demand for that specified occupation. Instead, they reflect the general employability in Canada of someone with those occupational qualifications.

[...]

The full 10 units available under the "Occupation Factor" are awarded if an applicant has a validated offer of employment in an occupation to which the NOC assigns an ETI number equal to or greater than five (5). (Note that the NOC figure five (5) converts to (15) units of assessment under the "Education Training factor".

The full 10 units available under the "Occupation Factor" are also awarded to any applicant whose occupation has been designated by the Minister.

If a candidate is awarded no units under the occupation factor, i.e. the candidate's occupation is not on "The General Occupations List", or has not been designated by the Minister or does not have a validated offer of employment, further processing is barred.

[23]            This makes it clear that where a candidate's intended occupation appears on "The General Occupations List" ("List") and the candidate has been awarded a specific number of units of assessment under the "Educational Training factor", the Visa Officer must award him or her the corresponding units of assessment under the "Occupational factor" column appearing on the List.

[24]            In the case at bar, the Visa Officer erred in awarding the applicant zero points in the Occupational Factor despite having awarded him 15 ETF units for the occupation of Financial Manager as the applicant was clearly entitled to three units under the "Occupational Factor". The rationale underlying this is that a conclusion that an applicant is entitled to 15 ETF points for the intended occupation of Financial Manager means that the latter has in effect been determined to be qualified in that occupation, and the 3 units for "Occupational factor" merely reflect the general employability in Canada of someone who already has the occupational qualifications.

[25]            The applicant submits that the Visa Officer incorrectly assessed the applicant under the "Experience" factor and erred when she awarded zero points in this category. I note that it is implicit in the award of points that the applicant must have been determined to have some relevant experience in the intended occupational category.

[26]            As stated, the Visa Officer should have awarded 3 units of assessment to the applicant under the "Occupational factor". From that I must infer that the applicant met the NOC qualifications for employment as a Financial Manager including the educational requirements. How then could the Visa Officer have given the applicant no units for experience?

[27]            The applicant submits that it is clear that his duties do indeed conform with the NOC definition of a financial manager, particularly if a broad interpretation of the definition is adopted. By adopting a narrow interpretation of the NOC definition, the Visa Officer committed a reviewable error.

[28]            The applicant argues that the visa officer was required to ascertain whether he had performed all or some of the duties specified in the NOC description. By disregarding or failing to consider the letter evidence, the Visa Officer erred in law in her interpretation and application of the facts of this case to the description of a financial manager in NOC 0111. The remedy suggested by the applicant is that he be awarded 6 units of assessment under the Experience factor.

[29]            In Lim v. Canada (Minister of Employment and Immigration) (1991), 121 N.R. 241 (F.C.A.), it was determined that whether an applicant is really qualified for an occupation listed in the NOC is a pure question of fact entirely within the mandate of the visa officer to resolve. Evans J. (as he then was) wrote in Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262, that visa officers should be afforded considerable discretion both in determining whether an applicant satisfies the requirements for a given occupation and in interpreting the provisions of the NOC. Visa officers have a familiarity with and understanding of this document that is at least equal to, and will often exceed, that of a reviewing court.

[30]            In the case at bar, the visa officer deposed, in her affidavit and her CAIPS notes, that she reviewed the applicant's work experience with him. The applicant had worked for Texool Corporation in Bombay, from 1989 until 1994 in the "Service" department. He provided a non-dated letter from this company which indicated that he worked as Export Assistant since March 1989. The letter refers to a list of duties but none of them corresponded to the duties listed in the NOC for the occupation of Financial Manager. The applicant indicated that this company basically exported ready-made garments. From Unique, J.B. Chemicals & Pharmaceutical company, also in Bombay, the applicant provided two letters of reference. One letter dated February 27, 1999, signed by the Personnel and Administration manager, R. Natarajan, indicated that the applicant had worked for the company from February 1994 until February 1999 as Executive-International division and subsequently as Manager-Shipping and Advertising in the International Division. The other letter was not dated and was signed by the R. Natarajan as well. Both signatures were completely different.

[31]            The last letter that the applicant provided was from his present employer, United Phosphorus Ltd. in Mumbai (Bombay), not dated, which indicated that he was employed as Financial Manager in the Shipping Department since March 1999. This letter gave the list of his duties while working for their shipping department. The duties that the letter indicated that the applicant had performed reproduced almost verbatim the wording of the duties for this occupation as described under the NOC for the applicant's intended occupation: "planning, organizing, directing, controlling...". The Visa Officer informed the applicant of her concerns.

[32]            The Visa Officer stated in her affidavit, and this is clearly apparent from her notes, that she reviewed the letters of reference and asked the applicant to explain in his own words the duties that he had performed while working for these three companies. He indicated that he did planning, budgeting, negotiating freight rates, had cordial relationships with the dock officers and the flight operators. He also planned and budgeted for the activities which concerned the shipping division, he had to arrange advances from the banks against letters of credit. The Visa Officer then asked him to explain his involvement in the financial aspect of the business. He said that he tried to negotiate better freight rates and he tried to increase sales. This was basically his involvement in the financial aspect of the United Phosphorus Ltd. company. The Visa Officer came to the conclusion that the duties that the applicant indicated at his interview that he performed were not the duties of a Financial Manager as defined in the NOC.

[33]            Also, she was of the opinion, and she advised the applicant of this at his interview, that he did not have relevant experience in the occupation in which he wanted to be assessed. It appears from her CAIPS notes that she informed the applicant of her concerns regarding his applicant and gave him an opportunity to respond.

[34]            I am not persuaded that the Visa Officer erred in her finding with respect to the units of assessment for the experience factor.    It is clear, when regard is had of the CAIPS notes and the Officer's affidavit, that the reason the application was denied was because the officer was not satisfied, on the evidence as a whole, that the applicant had performed a substantial amount of the duties which he referred to in his Application. Specifically, the applicant's employment title from 1989 to 1994 was Export Assistant and the duties he executed had nothing to do with the one of a Financial Manager; neither of the two letters from the J.B. Chemicals & Pharmaceuticals company or the letter from the senior general manager of United Phosphorus Ltd. about his performance was determined to be credible evidence that he performed a substantial amount of the duties in the NOC. Further, as it appears from the CAIPS notes, the applicant himself suggested that he was not "doing the job" but only performing 2 of the 5-6 duties delineated in the NOC. He explained he was well educated and could perform a substantial number of the duties of his intended occupation if he were given a chance.

[35]            The onus to satisfy the Visa Officer of the merits of the application rests with the applicant. Whether or not an applicant meets the requirements contained in the NOC obviously requires a weighing of the evidence with respect to his experience and training, a task to be undertaken by the visa officer alone. In my view, on the evidence before her, the determination made by the Visa Officer was entirely reasonable and open to her.

[36]            Finally, the applicant submits that the Visa Officer erred in her assessment of personal suitability points.

[37]            I disagree. Schedule I of the Regulations requires that units of assessment are to be awarded on the basis of an interview to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities, not solely on his or her work experience.

[38]            The Visa Officer noted that the applicant had not prepared himself for his move to Canada. He had not taken any steps to upgrade his skills. He had very little knowledge of Canada and had unrealistic expectations of what would happen on his arrival in Canada. All these indicated to the Visa Officer that it would be difficult for the applicant to establish himself successfully and she therefore awarded him only four points for personal suitability. It is evident from the record that the Visa Officer had a clear "grasp of the issues".    I see no reason to interfere and second-guess the findings of the Visa Officer regarding personal suitability.

[39]            In conclusion, accepting that the Visa Officer did err in her assessment of the applicant under the Occupational Factor but that her determination of the applicant's work experience and personal suitability was reasonably open to her on the evidence, the applicant would still not have met the minimum points requirements. Accordingly, the application for judicial review is dismissed.

     JUDGE

OTTAWA, Ontario

October 17, 2002

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-4638-01

STYLE OF CAUSE:                           Kenneth Edward Elijah v. The Minister of

Citizenship and Immigration

PLACE OF HEARING:                     Vancouver, British Columbia

DATE OF HEARING:                       October 1, 2002

REASONS FOR Order :                  The Honourable Mr. Justice Rouleau

DATED:                                                October 17, 2002

APPEARANCES:

Ms. Laura Valdez                                                                           FOR PLAINTIFF / APPLICANT

Ms. Pauline Anthoine                                                                      FOR DEFENDANT/ RESPONDENT

SOLICITORS OF RECORD:

Mr. Des Friedland

Ms. Laura Valdez

Barristers and Solicitors

Vancouver, B.C.                                                                            FOR PLAINTIFF/APPLICANT

Morris Rosenberg, Deputy

Attorney General of Canada                                                          FOR DEFENDANT/ RESPONDENT