Adami v. Canada (Minister of Citizenship and Immigration), docket IMM-3193-98

Date: 19990505

Docket: IMM-3193-98

BETWEEN:

     PARVIN ADAMI

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP & IMMIGRATION

     Respondent

     REASONS FOR ORDER

EVANS J.:

[1]      Parvin Adami is a citizen of Iran. A visa officer in Damascus refused her application for permanent residence in Canada as an independent applicant in the category of skilled worker. Ms. Adami stated on her application form that she intended to pursue in Canada the occupation of electrical power line and cable worker.

[2]      In this application for judicial review Ms. Adami"s counsel requested the Court to set aside the visa officer"s decision on the ground that it contained two errors of law.

[3]      First, the officer had failed to assess the applicant in the alternative occupation of industrial electrician, an occupation that is inherent in Ms. Adami"s work experience. Second, in assessing the applicant"s personal suitability under factor 9 in Schedule I of the Immigration Regulations, 1978 , SOR/78-172 [as amended], the visa officer took into account an irrelevant consideration, namely, the fact that Ms. Adami had not upgraded her employment or English language skills, factors that are specifically assessed elsewhere in Schedule I.

[4]      Ms. Adami obtained a B.Sc. degree in 1982 from a university in Iran. For 22 years she has been employed to teach mathematics and electricity at a technical school. Since 1982 she has also worked part-time as the head of the electrical department of a manufacturing company. In this latter job her department is responsible for the maintenance and repair of the electrical machinery used by the company.

[5]      There is no occupational demand for technical teachers in Canada, and the visa officer concluded that the occupation of electrical technologist more closely fitted the applicant"s experience than the occupation that she had stated as her intended occupation in Canada. Accordingly, the applicant was assessed for the occupation of electrical technologist.

[6]      The applicant told the visa officer at the interview that if admitted to Canada she would spend the first year familiarizing herself with the employment situation in Canada and in improving her English. Later, she said, she thought that she would like to start a technical school or to establish an electrical repair business.

[7]      The visa officer awarded the applicant 69 units of assessment, only one short of the 70 normally required for a person in Ms. Adami"s category to be issued a visa. However, the officer decided that this was not an appropriate case for the exercise of positive discretion under subsection 11(3) of the Regulations.

Issue 1

[8]      Counsel for Ms. Adami submitted that visa officers are obliged by the duty of fairness to assess applications thoroughly. Accordingly, they must assess an applicant not only in the occupation that the applicant has designated as the intended occupation in Canada, but also in any other occupation that is inherent in the applicant"s employment experience. In this case, counsel submitted, the visa officer ought to have assessed Ms. Adami as an industrial electrician, an occupation for which there is demand in Canada.

[9]      Counsel relied on Hui v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.; IMM-3736-97; September 24, 1998). In very short reasons, Campbell J. set aside a visa officer"s refusal on the ground that

... a visa officer has a clear responsibility to assess alternative occupations inherent in the applicant"s work experience; given the ample evidence in this case that the applicant has work experience as an accountant, I find that she should have been assessed as such.

He relied also on Parmar v. Canada (Minister of Citizenship and Employment) (F.D.T.D.; IMM-3177-96; November 12, 1997), where MacKay J. seems to have reached a similar conclusion.

[10]      However, the weight of authority in this Court defines the relevant duty more narrowly, so that an officer is only required to assess an applicant in an occupation that the applicant has indicated on the application form or at the interview that she or he is qualified for and interested in pursuing in Canada.

[11]      The leading case in Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (F.C.T.D.), where (at page 83) Jerome A.C.J. considered the administrative instruction to visa officers requiring them to assess applicants in alternative occupations "where there is the possibility that the applicant is qualified for and prepared to follow that occupation". He then said:

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 alternate occupations in the application.

[12]      Subsequent cases in which other judges of this Court have shared Jerome A.C.J."s refusal to impose on visa officers the wider obligation for which counsel contends on behalf of Ms. Adami include Tolentino v. Minister of Citizenship and Immigration) (F.C.T.D.; IMM-1614-94; June 14, 1995); Khoja v. Minister of Citizenship and Immigration (F.C.T.D.; IMM-998-96; January 20, 1997), and Mahrez v. Minister of Citizenship and Immigration) (F.C.T.D.; IMM-2117-97; March 25, 1998). In Gaffney v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 185, 189 (F.C.A.) the Federal Court of Appeal also seems to support this position.

[13]      When the facts of a case so require, the apparent confusion and inconsistency in the jurisprudence on this issue should be addressed. However, even if a visa officer may in some circumstances be required to assess a person in an occupation that the applicant has not expressly and specifically indicated that she or he is interested in pursuing in Canada, on the facts before me the visa officer was not in breach of the duty of fairness by failing to assess Ms. Adami in the occupation of industrial electrician.

[14]      First, there was not a very close fit between the duties performed by Ms. Adami as the head of the electrical department at the firm where she worked part-time, and those of an industrial electrician as described in the National Occupational Classification. Ms. Adami"s current position is mainly advisory and supervisory in nature, whereas industrial electricians" work is much more "hands-on".

[15]      Second, there was no evidence before the visa officer that Ms. Adami was interested in pursuing in Canada the occupation of an industrial electrician: on the basis of her educational qualifications and work experience, Ms. Adami would seem considerably over-qualified for the occupation of industrial electrician. In addition, she indicated at the interview with the visa officer that her interests in fact lay in technical education, and in possibly establishing an electrical repair business.

[16]      Third, I should note that the visa officer did consider Ms. Adami in occupations other than the occupation that she designated on the form as her intended occupation in Canada. Indeed, the visa officer assessed her in an occupation that, given her experience, was more appropriate than the occupation designated by Ms. Adami as her intended occupation. The occupation of industrial electrician is not identified in the NOC as an occupation similar to either Ms. Adami"s intended occupation, or to the occupation in which the officer in fact assessed her.

[17]      In these circumstances, it was not a breach of the duty to examine Mr. Adami"s application with reasonable thoroughness for the visa officer not to assess the applicant in the occupation of industrial electrician.

Issue 2

[18]      The second ground on which the applicant impugns the decision is that the visa officer was guilty of "double-counting" in her assessment of Ms. Adami"s personal suitability, which is factor 9 of Schedule I.

[19]      The visa officer awarded 5 units of assessment out of a possible 10 for this factor. In assessing the applicant as "having average personal suitability", the visa officer stated:

In making this determination I considered that you had not made any employment contacts in Canada and demonstrated only limited knowledge about Canada and the Canadian labour market. I also considered that you had not made any recent efforts to improve your English ability or taken any other recent courses.

[20]      In my opinion, it is clear from this statement that the officer is addressing the personal qualities of motivation, initiative and resourcefulness to which officers are required by Schedule I to have regard when assessing an applicant"s personal suitability. It is not an error of law for a visa officer to assess these personal qualities in the context of an applicant"s efforts, or lack thereof, to improve in language proficiency and employment skills, even though an applicant"s level of education and training, and language ability are specifically assessed under other factors of Schedule I. See, for example, Zhang v. Minister of Citizenship and Immigration (F.C.T.D.; IMM-1679-99; June 1, 1998); and for a review of the relevant case law, see Barua v. Minister of Citizenship and Immigration) (F.C.T.D.; IMM-3152-97; October 27, 1998).

[21]      For these reasons, the application for judicial review is dismissed.

[22]      Counsel for the applicant requested that I certify the following question pursuant to subsection 83(1) of the Immigration Act:

[23]      I have decided not to certify this question because it is not one that is raised by the facts and is therefore determinative of the appeal. I have held that in commenting negatively on the applicant"s failure to take courses to improve her language and employment skills the visa officer was clearly considering factors listed under personal suitability, namely motivation, initiative and resourcefulness. She was not "double counting" Ms. Adami"s levels of linguistic and educational attainment.

[24]      No other question arises from my disposition of this application for judicial review that meets the criteria for a question to be certified for appeal.

OTTAWA, ONTARIO      John M. Evans

May 5, 1999.      J.F.C.C.