Date: 19991217
Docket No.: IMM-218-99
Ottawa, Ontario, this 17th day of December, 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
ZAHURUL HASSAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
[1] Zahurul Hassan applied for a visa to immigrate to Canada. He indicated that he wished his application to be assessed on the basis of his employment as an accountant. He was interviewed in Buffalo, New York. The interview did not go well. He was refused his visa because the Visa Officer awarded him 0 points for experience on the point grid prescribed in Schedule 1 to the Immigration Regulations 1978 ( the Regulations). Section 11(1) of the Regulations provides that no visa shall be granted to person who scores 0 on the occupational experience factor, subject to an exception. But for the 0 score with respect to experience, he scored enough points to qualify for a visa.. Mr. Hassan finds this unfair because he submitted documentary evidence of his employment as an accountant which the Visa Officer disregarded. He brings this application for judicial review seeking to have the Visa Officer's decision set aside and the matter reheard by another Visa Officer.
[2] Mr. Hassan's difficulties began early on. At the start of the interview, the Visa Officer noted that the name on Mr. Hassan's passport was spelled differently than the name on the visa application. Mr. Hassan indicated that this was simply a typographical error and that he could get the passport replaced.
[3] The Visa Officer then verified Mr. Hassan's educational qualifications. He presented a degree of Master of Commerce from the University of Dhaka. It is dated November 21, 1994 and recites that Zahurul Hassan has obtained the degree of Master of Commerce (Finance and Banking). The diploma goes on to say that Mr. Hassan placed in the Second Class in the final M. Com. examinations of 1992. Mr. Hassan also submitted, as proof of his educational qualifications, a document entitled Testimonial from the Department of Finance, University of Dhaka. This document indicates that he passed the M. Com final examination in May 1994. In one spot, the document is dated January 1, 1994 but next to this is a handwritten date "January 1, 1995". In his application for a visa, Mr.Hassan indicated that he was in attendance at the University of Dhaka in the M. Com. program from January 1991 to January 1994.
[4] The Visa Officer questioned Mr. Hassan as to the date on which he wrote his final examinations for his M. Com. After Mr. Hassan had committed himself to an answer, "the end of 1993", the Visa Officer showed him his diploma which said that he had written the exam in 1992. Mr. Hassan explained that as a result of unstable political conditions the University had been closed and that his examinations were put off. Under more questioning from the Visa Officer, Mr. Hassan admitted that he could not recall when he wrote his final examinations. His explanation for the discrepancy between the Diploma and the Testimonial was country conditions at the time. The Visa Officer had previously advised Mr. Hassan of concerns about the authenticity of the documents due to their appearance and the lack of a transcript and a raised seal . The discrepancies with respect to examination dates reinforced these concerns.
[5] Mr. Hassan was then asked to describe his work experience. He had produced 3 letters confirming his employment as an "accountant". The first was from an employer in Bangladesh and indicated that Mr. Hassan had experience with the employer's various accounts and was in charge of "both Revenue and Development accounts". A letter from a U.S. employer indicated that Mr. Hassan was in charge of drawing balance sheets, profit and loss accounts and "development of our organization". A second letter from a U.S. employer described his duties as "drawing balance sheets, Profit & Loss accounts, tax etc." According to the Visa Officer's notes, Mr. Hassan described his duties as doing inventory, setting pricing and doing profit and loss calculations. When asked how he prepares financial statements, Mr. Hassan answered that based on sales and costs he would determine whether they were making enough of a profit on items sold.
[6] As a test of his accounting knowledge, the Visa Officer asked Mr. Hassan to define and show in writing how one would calculate two financial ratios which he took from an accounting textbook: the quick ratio and account receivable turnover. The Visa Officer concluded that Mr. Hassan's answers were completely non-responsive to the question, and having reviewed the questions and answers, I agree. When asked to explain why he did not know these ratios, Mr. Hassan's answer was that his work was practical not theoretical and that he had given was the practical answer.
[7] When the Visa Officer expressed some doubt as to whether the applicant had actually performed the duties in question, Mr. Hassan indicated that he could obtain further confirmation from his employers if necessary. According to the Visa Officer's notes, his view was that if the employers were employing an illegal immigrant[1], their own credibility was in issue.
[8] The interview concluded with the Visa Officer pointing out to Mr. Hassan his reservations about both his educational qualifications and his work experience. Mr. Hassan asked if there were other documents which he could produce which would deal with the Visa Officer's concerns. The Visa Officer indicated that he could think of none and inquired of Mr. Hassan what he thought he could provide. Mr. Hassan offered to provide more documentation about his educational credentials, such as transcripts. The Visa Officer indicated that if his only concerns were with respect to education, he would accept such further documentation. However, since he had serious reservations about Mr. Hassan's work experience, no useful purpose would be served by tendering additional documents with respect to Mr. Hassan's education. The Visa Officer indicated that he was not prepared to credit Mr. Hassan with any experience as an accountant which would have the effect of completely defeating his application.
[9] The Visa Officer mentioned that he was aware of the job offer which Mr. Hassan had from a firm in which his brother-in-law was a partner to employ him as an accountant in his grocery business but that he could give it little weight, describing it in his notes as a "putative"offer of employment.
[10] The interview took place on November 30, 1998. On December 2, 1998, Mr.Hassan telephoned the Visa Officer to inquire about providing more documentation. According to Mr. Hassan, the Visa Officer's response was that he did not require further information and that he did not want to hear anything further about Mr. Hassan's case. The written reasons for dismissal, dated December 1, 1998, reached Mr. Hassan shortly thereafter.
[11] The letter officially advising Mr. Hassan of the refusal of his visa application does not set out the points assessed to Mr. Hassan for the various factors prescribed in Schedule 1 of the Regulations. It appears from the Visa Officer's notes that Mr. Hassan scored 69 points which is 4 points in excess of the required minimum for an assisted relative applicant. See s. 10(1)(b) of the Regulations. Mr. Hassan's failure to qualify is based entirely upon his failure to score any points with respect to the occupational experience item (Item 3) in Schedule 1.
[12] Counsel for Mr. Hassan attacks the decision primarily on the ground that the Visa Officer owed Mr. Hassan a duty to allow him to address his (the Visa Officer's ) concerns which he was not given when the Visa Officer refused to entertain further documentation, particularly on the subject of occupational experience when it was clear that this would be fatal to the application. Secondly, counsel says that the finding of no occupational experience is perverse since there was evidence that Mr. Hassan had in fact worked as an accountant. The experience scale is an 8 point scale. Even if the Visa Officer was not impressed with Mr. Hassan's experience, awarding no points is a complete denial of his experience when there was some evidence of experience.
[13] The Respondent Minister argues that Mr. Hassan got exactly what he was entitled to, which was the opportunity to address the deficiencies which the Visa Officer perceived in his application. Given that the onus is always on the applicant to satisfy the Visa Officer, no applicant is entitled to further chances to improve his material as of right. It is only when the Visa Officer relies on material provided by others of which the applicant could not have knowledge that the duty to provide an opportunity for rebuttal arises. Teitlebaum J. put it thus in Chou v. Minister of Citizenship and Immigration ,[1998] F.C.J. No. 819
[21] In essence, where an interview is necessary to assess an applicant, the duty of fairness requires that the visa officer thoroughly interview the applicant on factors relevant to the claim and give the applicant an opportunity to respond to allegations or assumptions of which the applicant could not be reasonably aware. (Emphasis added).
[14] Counsel for Mr. Hassan says that the duty of fairness is wider than the position taken in Chou. He says it extends to an obligation to fully interview the applicant so as to break the applicant's chosen occupation down into its constituent pieces so as to make decisions as to the adaptability or portability of the experience to the intended occupation. Fong v. Canada (1990), 11 Imm. L. R. (2nd) 127 per McNair J. at p.215.
In my view, there is no cogent evidence in the present case that the visa officer went beyond the intended job description of production line manager and the CCDO definition thereof and directed a specific line of questioning as to the applicant's actual work experience in the garment industry broken down into its constituent elements for the purpose of making an appropriate assessment with respect to their adaptability or transferability to the intended occupation. It is apparent from Mr. Thornton's affidavit that he made no attempt to do this. In my opinion, his failure to do so constituted an error in law.
[15] To put this dispute in context, the National Occupational Classification ( "NOC") entry for accountants reads, in part, as follows:
Employment Requirements
Education/Training
5+, 6+, 7+, R
Chartered accountants require a university degree
and
completion of a training program approved by the institute of Chartered Accounts and several years of on-the-job training
and
accreditation by the institute of Chartered Accountants.
Certified general accounts and certified management accounts require completion of secondary school and usually require completion of secondary school and usually require some post-secondary education related to accounting
and
completion of a training program approved by the Society of Certified General Accountants or Society of Management Accountants and several years of on-the-job training
and
accreditation by the Certified General Accountants or the Society of Management Accountants.
To act as a trustee in bankruptcy proceedings, accountants must hold a licence as a trustee in bankruptcy.
Licensing by the provincial or territorial governing body is usually required for accountants practising public accounting.
In Quebec, membership in the professional corporation for accountants is mandatory.
[16] Whatever the date upon which the applicant took his final examinations, it is clear that his academic training as a graduate of a commerce program in finance and banking would not equip him for employment in Canada as an accountant as that term is defined in the NOC. The description of the occupation focuses upon licensed accounting professionals as opposed to financial management positions. The applicant's lack of suitability for an accounting position is illustrated by his inability to describe how he would prepare financial statements as well as his obvious inability to define two ratios taken from an accounting textbook. His lack of familiarity with these concepts suggests that he cannot have been employed in a position where those concepts were in use. To attempt to justify this by saying that his was the practical approach as opposed to the theoretical approach is simply another way of saying that the applicant was not employed as an accountant. To that extent, the Visa Officer's conclusion about Mr. Hassan's lack of occupational experience is justified. Experience in a position where one uses or generates financial information is not experience as an accountant (as defined in the NOC) any more than employment as a nurse is experience as a physician.
[17] If Mr. Hassan does not have experience as an accountant, as defined in the NOC, he does have some employment experience unless the employment letters are to be discounted entirely. The experience factor is designed to assess experience is the designated occupation. It is not experience at large. The fact that the experience does not count in the assessment of the applicant's designated occupation of accountant, does not mean that it must count towards some other occupation, unless the Applicant can be assessed in another occupation. This is implicit in the various cases which raise the point of which Hajariwala v. Canada (M.C.I.), [1989] 2 F.C. 79 (T.D.) is typical :
I should also add that as a matter of fairness the record should show that the applicant was given the opportunity to provide information in support of his current experience in each included occupation. The record must equally indicate reasons which support the visa officer's assignment of a specific experience rating to the included occupations or reasons which support the refusal to do so.
[18] This raises the question of assessment in "included" occupations. As this was not raised at the hearing of the application, counsel were advised that the question of duty to assess in an alternate occupation might be an issue in the decision and submissions on this issue were invited. Submissions were received and considered.
[19] It is sometimes said that a visa officer has a duty to consider an applicant for alternative occupations for which he might be qualified by experience or training and which might be said to be included in his chosen occupation. See Hui v. Canada (M.C.I.) (1998), 152 F.T.R. 112. See also Paramar v. Canada (M.C.I.) (1997), 139 F.T.R. 203 for a review of the cases on this point. On the other hand, some reservation has been expressed as to how far this duty extends. In Hajariwala supra, a case which is often cited as authority for the duty to assess in all included occupations, Jerome A.C.J. says this:
The affidavit consists of twenty-five paragraphs and provides a complete description of the process at issue here, including the qualifications and responsibilities of the visa officers abroad. I quote paragraph 15:
15. Alternate occupations will also be considered by the
officers where there is the possibility that the applicant
is qualified for and prepared to follow that occupation.
I take this to be a very important expression of fundamental fairness to the applicant. Counsel for the applicant asks me to find that it imposes upon the visa officer the obligation to assess alternate occupations inherent in the applicant's work experience, whether the applicant puts them forward or not. I am not prepared to go that far, but I do find that it puts beyond question the responsibility of the visa officer to do so where, as here, the applicant seeks it by designating altemate occupations in the application. (emphasis added)
[20] In Paramar supra, MacKay J. appears to put limits on the extent of the duty:
In my view, the visa officer must consider the applicant's whole work experience, and the occupations inherent in it, and must provide the applicant with an opportunity to submit evidence of his or her qualifications. Where there is no evidence presented of alternate or inherent occupations, the officer does not err in failing to consider other occupations than those which the applicant has requested. (emphasis added)
[21] The Federal Court of Appeal has considered the question Patel v. Canada (1991), 121 N.R. 260; (1991), 12 Imm.L.R. (2d) 190 where this very issue was raised:
The Appellant also submits that because the occupation Buyer, Assistant, CCDO no. 5191-114, is "included" in the occupation Buyer, Retail Trade, the visa officer was obliged to assess the Appellant with reference to it even though it had not been mentioned in his application. The seed of that submission lies in a schematic drawing provided to visa officers which illustrates the decision making path to be followed in assessing immigrants subject to all criteria. At its foot is the following note:
Before refusing immigrants who are not acceptable under the criteria officers should consider whether:
1) discretion is warranted;
2) the immigrant is qualified in an alternative occupation, particularly associated occupation.
However reasonable that directive may be, unless it were established to be law, it could not, in my opinion, impose a duty enforceable by mandamus nor would failure to observe it invalidate a refusal. In Harajiwala, at p. 227, the same trial judge characterized evidence to the effect that alternate occupations which an applicant is qualified for and prepared to follow will also be considered as "a very important expression of fundamental fairness to the applicant". It is clear from the context that he was not considering it in the sense of procedural fairness, a failure of which would vitiate the visa officer's assessment. (emphasis added)
[22] These comments, which have not been the subject of adverse comment, would appear to represent the Court of Appeal's position on the issue. On that basis, I am not prepared to find that the Visa Officer was required to assess the Applicant in an included occupation when none was suggested by the Applicant. That finding disposes of the Applicant's submissions on the experience factor as well. There was no alternate occupation against which the experience could be assessed.
[23] As a result, there will be an order dismissing the application.
[24] Counsel asked to certify a question with respect to the issue of assessment of included occupations. Given that the decision of the Court of Appeal in Patel, arose from a refusal to assess in the occupation designated by the Applicant, the issue of included occupations was not squarely before it. For that reason, I am prepared to certify the following question:
Is a visa officer obliged to assess an applicant for permanent residence in Canada in occupations other than those for which the applicant has sought an assessment?
ORDER
The application for judicial review of the decision of Norman Barnes dated December 1, 1998 is dismissed.
"J. D. Denis Pelletier"
Judge
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