Date: 19990423
Docket: IMM-3413-98
BETWEEN :
VANDANA DOGRA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.
[1] Vandana Dogra is a citizen of India who has been living in New York for the last five years. In July 1997 she applied for permanent residence in Canada as an independent applicant in the skilled worker category. In her visa application Ms. Dogra entered school and guidance counsellor as her intended occupation in Canada.
[2] She submitted with her application two letters of reference describing in positive terms her performance as a teacher and a school guidance counsellor. The first was from a school in India; the letter said that she had been employed there for four years as a teacher, and had also performed the duties of guidance counsellor to students. The letter described these duties in words that are virtually identical to those found in the National Occupational Classification"s description of occupation 4143, school and guidance counsellors.
[3] The second letter was from a Mr. Singh, whose two children the applicant had been tutoring privately in their home in New York. The letter stated that Ms. Dogra had been helping them in Hindi, English and math and "in maintaining the balance between eastern and western values", and acting as a "guidance instructor". The areas in which she is said to have provided guidance are again similar to the NOC"s description of the duties of school and guidance counsellors.
[4] Ms. Dogra was interviewed at the Canadian Consulate in New York City by a visa officer, Mr. Romano. Although their recollections of the interview diverge significantly, they agree that the officer raised with the applicant the relevance to Canada of her experience as a guidance counsellor in India, and suggested that, with education cutbacks and the laying-off of teachers, Ms. Dogra might find it difficult to find employment in Canada in her intended occupation.
B. THE VISA OFFICER"S DECISION
[5] In the letter of decision that Mr. Romano sent soon after the interview, he advised Ms. Dogra that her application had been rejected because she did not satisfy the statutory requirements for admission to Canada as a permanent resident. She had not been awarded the 70 units of assessment that an applicant in Ms. Dogra"s application category must normally obtain before being issued with a visa: paragraph 9(1)(b)(i) of the Immigration Regulations, 1978 SOR/78-172.
[6] The visa officer awarded the applicant zero units for experience, which is factor 3 in Schedule I of the Regulations. This disqualified her from obtaining a visa, unless the visa officer exercised discretion in her favour: subsections 11(1) and 11(3) of the Regulations. Visa officers must evaluate applications by reference to the factors listed in Schedule I: paragraph 8(1)(a) of the Regulations.
[7] In the letter of decision Mr. Romano explained that he could award Ms. Dogra no units for experience
| because I am not satisfied that you have one year of Canadian equivalent experience as a school and guidance counsellor. You claim experience as a guidance counsellor in Pakistan. When I asked you questions about Canadian customs and culture, you were unable to answer them. It was evident from your responses that you would not know how to provide personal guidance to Canadian students who, for the most part, come from an entirely different background than yourself. |
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If the applicant had been given full or even half credit for her experience in India as a guidance counsellor, she would have had 70 units of assessment or more.
[8] Counsel for the applicant attacked the validity of the visa officer"s decision on three main grounds. First, the visa officer acted in a procedurally unfair manner when he failed to raise with Ms. Dogra his doubts about the veracity of the letters of reference, or to make further inquiries of his own about them. Second, the officer"s evaluation of the applicant"s experience as worth no units of assessment was perverse and capricious and made without regard to the material before him. Third, in discounting her experience on the ground that the cultural milieu in which she had gained it made it valueless in Canada, the officer had taken into account irrelevant considerations.
C. TWO PRELIMINARY MATTERS
[9] Before examining what seems to me the most important issue raised in this case, I should note two aspects of the decision that seem to me unsatisfactory, and to cast an unfortunate cloud over it.
1. The errors in the letter of decision
[10] First, as counsel for the applicant noted, the visa officer made two elementary mistakes in the letter of decision. He incorrectly recorded a total of 61 units of assessment, rather than the 66 that he had in fact awarded to her. It is not certain that this was a material error. However, the notes that the officer entered into his computer shortly after the interview indicated that he probably thought then that 61 was the correct total, because he stated that he told the applicant that, even if he awarded her full credit for her education and experience, she would still not have enough points. As I have already indicated, since she had been awarded 66 units of assessment, Ms. Dogra needed only another four points to be eligible for a visa.
[11] The other mistake made by the officer in the decision letter was to refer to the applicant"s previous experience as a guidance counsellor in Pakistan when, as her application made quite clear, her work had been in a school in India, her country of origin. According to the notes that the applicant had made of the interview, Mr. Romano was under the same mistaken impression at the interview about the applicant"s country of origin and where she had worked as a school guidance counsellor.
[12] These mistakes indicate a lack of care by the visa officer in dealing with Ms. Dogra"s visa application. In addition, the computational error might have been material to the ultimate decision since the officer"s notes suggest that he might have awarded her four points for her experience if he had thought that it would have made a difference to the result.
[13] The confusion of India and Pakistan may also suggest a cultural insensitivity on the part of the visa officer. This assumes a potential significance when considered in light of the reasons that he gave for evaluating her experience at zero, namely the absence of a Canadian cultural context, and an inadequate knowledge of Canadian customs and culture.
[14] In view of the conclusion that I have reached on what seems to me the essential issue in this case, it is not necessary to decide whether these mistakes are sufficient in themselves to invalidate the visa officer"s decision.
2. The bases of the decision
[15] The second feature of the decision that should be noted is that the reasons that the visa officer gave for rejecting the application, in both the letter of decision and the computer notes, are not identical to those that he gave in his affidavit and cross-examination. That is, in his affidavit he said that he was concerned not only about the relevance to the Canadian context of the applicant"s experience as a school guidance counsellor in India, and her lack of knowledge of Canadian customs and culture, but also about the veracity, or proper interpretation, of the letters of reference that she had submitted with her application.
[16] In particular, Mr. Romano stated in his affidavit that he was not satisfied on the basis of the letter from the school in India that Ms. Dogra had been employed primarily as a guidance counsellor. The letter could be read as saying that she was employed as a teacher, who, in the course of carrying out her professional duties as a teacher, incidentally gave advice to students on a range of non-academic and personal matters. In addition, the fact that the letter describes the applicant"s guidance duties in the very same words that the NOC describes the duties of a school and guidance counsellor obviously raised suspicions in the officer"s mind about the reliability of the letter.
[17] I can well understand the officer"s concerns on this aspect of the application. However, counsel for the applicant may also have had a point when he argued that procedural fairness required the officer either to put any concerns that he had on this score to the applicant so that she could respond, or to make inquiries himself through the Canadian High Commission in New Delhi.
[18] Nonetheless, I shall consider the validity of the visa officer"s decision on the bases that he gave for it in his letter of decision, namely that Ms. Dogra"s experience was not relevant to the pursuit of her intended occupation in Canada and because she lacked the knowledge of Canadian customs and culture necessary to give advice to Canadian students.
D. THE CENTRAL ISSUE
[19] In my opinion, this case turns on whether the officer erred in law when he evaluated at zero her experience as a school guidance counsellor in India because it did not equip her with, and she did not possess, the cultural knowledge necessary to counsel children in schools in Canada. Certainly, the experience factor in Schedule I of the Regulations does not require the visa officer to determine whether an applicant"s experience is equivalent to that in Canada, other than by considering the extent to which the duties performed by the applicant match those in the description in the NOC of the applicant"s intended occupation.
[20] The duties that the applicant is said in the letter from India to have performed may, of course, be thought to match all too well those listed in the NOC. But that is a different issue and is not relevant to this proceeding because it was not the ground on which the letter of decision relied for refusing Ms. Dogra"s application.
[21] To the extent that its language and structure permit, Schedule I should be interpreted in a manner that is consistent with its purpose: that is, the provision of objective criteria by which visa officers must decide whether an independent applicant will be able to become successfully established in Canada, which in this context means economically self-sufficient.
[22] The fact that an applicant"s experience in her intended occupation may not enable her to obtain employment in Canada in that occupation is, therefore, a legitimate concern. However, it is a concern that Schedule I may address, in part at least, through the education and training factor. Possession of the kind of qualifications that Canadian employers expect of applicants for employment in particular occupations should help a person to overcome the disadvantages that recent immigrants not uncommonly experience in entering the Canadian labour market.
[23] And, in unusual cases, a visa officer may take into account the relevance to the Canadian context of an applicant"s experience in her intended occupation under the residual discretionary authority exercisable under subsection 11(3) of the Regulations when, in the officer"s opinion, the units of assessment do not accurately reflect an applicant"s prospects of becoming successfully established in Canada.
[24] Counsel for the Minister was able to produce one case that he regarded as being on point, namely, Gracheva v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 298 (F.C.T.D.). In this case, the applicant, a Russian citizen, had applied for permanent residence with the intention of pursuing in Canada the occupation of chartered accountant. The visa officer rejected her application on the ground that "she had a limited knowledge of Western accounting principles, having been educated and trained in a market command economy". Counsel for the applicant had argued that the visa officer should not have faulted her on this ground, or on her limited knowledge of Western accounting principles, because the Canadian Classification and Dictionary of Occupations" definition of an accountant does not incorporate these principles.
[25] Tremblay-Lamer J. upheld the visa officer"s decision on the following grounds (at 303):
| The purpose of the selection interview is to determine if a person will be able to successfully establish himself or herself in Canada. |
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...
| In the present case the applicant had limited knowledge of accounting principles and methods used in the West, which is essential for her to be able to function in her occupation in Canada. |
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[26] An important issue raised by Gracheva, and by the case before me, is the extent to which visa officers are authorized to look behind the CCDO or NOC descriptions of education, training and experience, or other statutory criteria, in an attempt to assess the relevance of an applicant"s credentials for becoming successfully established in Canada, especially in the case of applicants who list a profession as their intended occupation.
[27] Even though neither the CCDO, nor the NOC was designed for the purpose of evaluating the "market readiness" of applicants for permanent residence in Canada, I incline to the view that it is not normally appropriate for visa officers to engage in the exercise of assessing the "Canadian relevance" of applicants" education, training and experience when they are consistent with the terms of the statutory criteria.
[28] For one thing, assessing the "Canadian equivalents" of overseas qualifications and experience is a task that may be better left to national accreditation committees and provincial licensing authorities. Busy visa officers may not be well equipped to make these kinds of assessments in the limited time available for the interview, which must also canvass other aspects of the application.
[29] Moreover, immigration policy is placing increasing emphasis on applicants" adaptability and flexibility, characteristics that are particularly important in the contemporary labour market. Hence, applicants" level of education and active labour market participation are likely to be of more importance in predicting successful establishment in Canada than the possession of a store of specific knowledge.
[30] There is also, of course, legal authority for the proposition that visa officers may not reject applicants by reference to criteria that are not included in the CCDO, the NOC or the Regulations themselves: see, for example, Lee v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm. L.R. (2d) 222 (F.C.T.D.).
[31] However, on the facts of this case, it is not necessary for me to decide whether it is ever justifiable for visa officers to take into account under the factors of education, training and experience differences in the economic, social or cultural environments from which applicants come. This is because, even if these are legally relevant considerations, the visa officer in this case exercised his discretion unreasonably in rejecting Ms. Dogra"s application on the ground that he gave in the letter of decision.
[32] One of contemporary Canada"s defining characteristics is its multicultural nature. Our major cities, in particular, have a vibrant ethnic diversity and richness, and relative harmoniousness, that are the envy of many. For a visa officer to reject an application for permanent residence as a school guidance counsellor because students in Canada "for the most part, come from an entirely different background than yourself" seems to me to be quite at odds with the realities of today"s Canada.
[33] As counsel for the applicant pointed out, the visa officer seemed quite impervious to the possibility that many boards of education might well regard Ms. Dogra"s national origin and her experience in Indian schools as valuable assets in assisting children, particularly of South Asian background, to flourish in a setting where tensions between the values and expectations of parents and their ethnic community on the one hand, and the norms prevalent at school and in North American society at large on the other, may be felt particularly keenly. Indeed, this was precisely the kind of assistance that Ms. Dogra was providing to the two Singh children whom she was tutoring in New York.
[34] However, it must also be said that the visa officer focussed on the applicant"s own very limited knowledge of Canadian customs and culture. He explained in cross-examination that, in order to test her knowledge in these areas, he had asked her about when children start school, the number of grades in high school, rock groups currently popular with Canadian teenagers and whether she knew what crack cocaine was. He used her answers to these questions as the basis for his conclusion that she had insufficient knowledge of Canadian customs and culture to enable her to provide counselling to students in Canada.
[35] If these questions were indeed asked, and the applicant denies that most of them were, they seem to me quite inadequate for informing the officer on whether the applicant had the qualities necessary to succeed as a guidance counsellor in Canada. Indeed, I very much doubt whether this was something that the officer had the ability to discover, and almost certainly not in the course of a fifteen minute interview that ranged over a number of other issues, including Mr. Romano"s view that there was an over-supply of teachers in Canada, a view that in any event seems to have been overtaken by subsequent developments.
[36] Moreover, questions designed to elicit a knowledge of "Canadian customs and culture" are, in my opinion, suspect by their very nature, because they may assume that "Canadian culture and customs" are monolithic. Again, this is quite contrary to the theory and practice of multiculturalism in Canada. The danger is that visa officers may identify as "Canadian culture and customs" those of the oldest established groups, and regard others as outside the mainstream of Canadian society.
E. CONCLUSION
[37] For these reasons the visa officer"s decision was erroneous in law and the application for judicial review is granted. The decision of the visa officer is set aside and Ms. Dogra"s application for permanent residence is remitted to a different visa officer to decide.
OTTAWA, ONTARIO John M. Evans
April 23, 1999. J.F.C.C.
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