Date: 19990521
Docket: IMM-1553-98
BETWEEN:
SHIH-WEI CHANG CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] These reasons concern an application for judicial review of a decision of the Counsellor, the Operations Manager, of the Canadian High Commission (the "Commission") in Singapore, who, by letter dated February 9, 1998, informed the applicant that she failed to qualify for permanent residence in Canada. After hearing counsel for the parties on January 20, 1999 in Winnipeg, and considering submissions then made, these reasons explain an order which now dismisses the application.
Background
[2] On May 2, 1996, the applicant submitted an application for permanent residence in Canada to the Commission in Singapore. At the time, the applicant was resident in Hsintien City, Taiwan. On the form, the applicant listed her intended occupation in Canada as "CCDO-1173-110 Supervisor, Organization and Methods Analysts", referring to the Canadian Classification and Dictionary of Occupations ("CCDO").
[3] After paper screening of the application, an interview was scheduled for the applicant for September 25, 1997. She, her spouse and two dependant children, each of whom were included in the application for permanent residence, attended the Commission's offices on that day. The visa officer, before commencing the interview, confirmed advice earlier given that the children would not participate because they were both engaged in overseas studies, and, in any event, there were obvious space limitations in the interview room.
[4] The applicant claims that, during the interview with her and her spouse, the visa officer did not appear to review supporting documents that detailed her previous employment experience, and that he often interrupted or ignored her answers. The respondent, relying on the visa officer's affidavit, submits that he did review those documents as he had done beforehand, and in his review he asked the applicant specific questions regarding previous employment and how it related to her intended occupation. Based on the information provided in the interview, the visa officer concluded that the applicant had less than one year of experience, the minimum required for assessment, performing many of the duties contained in the CCDO occupation description for Supervisor, Organization and Methods Analysts, or the duties described for a similar occupation in the National Occupational Classification ("NOC"), a more recent classification system for occupations, though the latter classification was not open for immigrants at the time. The applicant claims that the visa officer did not mention any concerns regarding her lack of experience at the interview, although the visa officer's affidavit states that he did outline reasons for refusal of her application at the end of the interview.
[5] The applicant's experience in an intended occupation is a factor that a visa officer must consider pursuant to subparagraph 7(1)(c)(iii) of the Immigration Regulations, 19781. In this case, the visa officer awarded zero units in that category. By the Regulations, a zero score for experience precludes the issuance of a visa. The respondent claims that the visa officer advised the applicant of this determination at the interview, in regard to both her stated intended occupation and also in regard to the occupation of Administrative Officer, which she requested be considered before the end of the interview. The applicant claims that the visa officer did not provide advice whether she qualified for any occupation, rather she claims that the visa officer told her that he would review the application and provide an answer in writing.
[6] That is not the only difference in the recollections of the applicant and of the visa officer as set out in their respective affidavits. The applicant claims she mentioned at the interview and then provided documentation to support her claim, not set out in her application, that she had a family relative in Canada, an aunt, information which she subsequently confirmed by a letter dated September 30, 1997, following the interview. In that letter she also affirmed that she was asking to be assessed in relation to four possible intended occupational classifications, i.e. three in addition to that of Supervisor, Organization and Methods Analysts. The additional classifications, CCDO-1171-162 Internal Auditor, CCDO-1174-118 Personnel Officer, and CCDO-1179-182 Administrative Officer, are said to have been requested at the interview for her assessment. None of the three added classifications are mentioned as having been considered in the subsequent refusal letter of the visa officer, dated November 14, 1997, and no mention is made in that letter of a close relative in Canada, and no bonus points were awarded in the assessment of her application for that relative.
[7] The visa officer's CAIPS notes, made at the time of the interview, support his claim by affidavit that he did assess the applicant at the time of the interview in relation to the classification for Administrative Officer, and he then concluded she was not qualified for that occupation. His affidavit affirms that upon receipt of the applicant's letter of September 30, after the interview, he did consider the applicant's request for consideration in the two additional classifications, which he affirms were not raised at the interview, and with no further evidence from the applicant he concluded she lacked the necessary experience to qualify in those occupations. As earlier noted, his subsequent letter of refusal makes reference to assessment of the application only in respect to the intended occupation set out in the application, not to the three additional classifications raised at the interview or by the subsequent letter.
[8] The visa officer's affidavit also affirms that the applicant did not refer to, or provide documentation concerning, an aunt resident in Canada during the course of the interview, and her reference to this matter was first made in the applicant's letter written after the interview. Having made his decision at the time of the interview, which he claims was then communicated to the applicant, the visa officer did not subsequently assess the claim of the applicant to have a close relative in Canada. In the circumstances, the latter factor made no difference in the final determination, since the visa officer assessed the applicant's experience factor as zero, so that she was not qualified for a visa as a permanent resident.
[9] The applicant forwarded a letter dated November 18, 1997 asking for a final decision. Before this, the visa officer had prepared a refusal letter, dated November 14, 1997, which was sent on November 17 and received by the applicant on December 3. It stated, in part, referring to the occupation of Supervisor, Organization and Methods Analysts:
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You have obtained insufficient units of assessment to qualify for immigration to Canada in your intended occupation. I have determined that you have zero experience in this occupation. This is an automatic bar to further processing and your application must be refused. |
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I have determined that your stated occupation is not an open occupation in the NOC, and you were therefore, not assessed under it. |
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Based on the information provided at your interview, I have concluded that you would experience some difficulty in establishing in Canada and have awarded you suitable units of assessment in the category of personal suitability. I consider the units of assessment which you have been awarded are an accurate reflection of your ability to successfully establish in Canada. |
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I outlined my reasons for refusal to you at the end of the interview and asked if you had anything further to add. You did not. |
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The letter listed the units assessed for each factor upon which parties are assessed in accord with the Regulations. Included within that list was a score of "00" for the category "Experience" and the same for a category called "BONUS (for close relatives in Canada)".
[10] With her application, letters from two employers of the applicant were forwarded and were before the visa officer at the interview. These described her responsibilities with Cathay Pacific Airways Limited and Air Macau, respectively. Those responsibilities, as described, were in supervisory roles in relation to financial, personnel and administrative services, and to the development of office systems.
[11] In response to the refusal letter, the applicant wrote at length on December 4, 1997 and again on December 10, 1997 requesting a reversal of the visa officer's decision. Upon receiving no response to those letters, she contacted a Canadian lawyer, who sent a facsimile to the Regional Program Center in Singapore on January 14, 1998, asking for a review of the issues raised within the applicant's December 4 letter. The visa officer referred the file to his Operations Manager for review and reply.
[12] The manager reviewed the applicant's letters and her lawyer's letter in addition to the entire Citizenship and Immigration file and he also questioned the visa officer. In the result he concluded the officer's decision was reasonable and was arrived at according to proper procedure. He informed the applicant's counsel of this decision in a facsimile transmission dated February 9, 1998, which set out his conclusions in part, as follows:
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1. The applicant indicated on her immigration application form that she wished to be assessed as a "CCDO 1173-110 - Supervisor, Organization and Methods Analysts". She was assessed in that occupation and the interview proceeded on that basis. The officer determined that she was not qualified in that occupation. |
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2. At some point in the interview, the applicant also asked to be assessed under the CCDO definition of an "administrative officer". It is clear from the officer's interview notes and his recollection that he did turn his mind to that submission - and ultimately concluded that the applicant was not qualified in that occupation. |
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4. Subsequent to the interview, the applicant sent a letter asking for consideration under two additional categories: Personnel Officer (CCDO 1174-118) and Internal Auditor (CCDO 1171-162). She did not provide any new information to substantiate her claims to be qualified and experienced in these occupations. While it is not clear whether or not a visa officer is obliged to take post-interview requests regarding alternate occupations into consideration, the interviewing officer did conduct a review of the information provided to assess Ms. Chen's ability to qualify in either/both of these two occupations. He came to the conclusion that the applicant had not satisfied him that she possessed the necessary qualifications and experience to be accepted in either of them. |
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6. It appears to me that the applicant was indeed assessed in all of the occupations for which she requested assessment. The officer's conclusions in this regard do not appear to me unreasonable or based on improperly applied principles. |
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7. Since the assignment of zero points for the experience factor is the reason for refusal in this case, the questions of whether or not the applicant is entitled to the assisted relative bonus and how many points she should be assessed for personal suitability are in my view moot. |
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[13] The applicant urges that in his February 9 letter, the manager did not indicate any reason for the visa officer concluding that the applicant did not have the necessary minimum of experience in any of the four occupations for which she requested assessment. She also disputes the manager's reference to letters of reference and self-prepared job descriptions as applicable in her case, and if they suggest her employer's letters were not credible, that was not brought to her attention to permit her to respond.
Issues
[14] The issues raised by the applicant, by her amended record, are as follows.
A. Is the manager's decision of February 9, 1998, subject to judicial review or is it merely a courtesy response?
B. Did the respondent err in the manner in which the applicant's experience was assessed in the occupations of Supervisor, Organization and Methods Analysts, and in the occupation of Administrative Officer?
C. Did the officer err in failing to assess the applicant as an assisted relative entitled to a bonus of five points?
D. Did the respondent err in failing to assess the applicant in the alternate occupations of Personnel Officer and Internal Auditor?
E. Did the respondent err in the manner in which personal suitability was assessed?
F. Did the operations manager err in the manner in which he reviewed and assessed the application for permanent residence?
Implicit in the issues as stated by the applicant is the perception that review of the manager's decision of February 9, 1998 necessarily includes review of the visa officer's decision conveyed by letter of November 14, 1997.
[15] I propose to deal with the issue of the decision here subject to review, then the issues raised by the applicant as B, D and F above which concern primarily the assessment of the applicant's experience in various proposed occupations, then with the matter of bonus points for an assisted relative, and the assessment of the applicant's personal suitability.
Decision Under Review
[16] The respondent submits that the November 14, 1997 decision of the visa officer is not subject to review in this application. The Originating Notice of Motion, filed on April 6, 1998, refers only to the February 9, 1998 letter from the Commission as the decision that is sought to be set aside by this application.
[17] By his affidavit the manager states that he does not consider his letter "...to be, in any way, a new decision or a new refusal letter." In that letter he advised that the refusal decision of November 14, 1997 remains and the applicant's file was closed, indicating that his letter was merely a courtesy response and a confirmation of the original decision. Yet in that letter of February 9, 1998, the manager clearly indicates that he reviewed the points raised by the applicant's counsel, the applicant's letter of December 4, 1997 and other documentation submitted by her before and after the interview, and the notes recorded by the visa officer. Further, he discussed "the circumstances surrounding the interview and subsequent developments to obtain all relevant information regarding this application". Upon that extensive review he sets out his conclusions. I am prepared to accept his evidence that he was thorough in his review. That very thoroughness clearly implies his review was more than a matter of courtesy. In the circumstances of this case, the conclusion he reached, not to propose that the visa officer's decision be changed, which was the essence of the applicant's request, in my opinion is a decision that is subject to judicial review pursuant to s. 18.1 of the Federal Court Act2.
[18] The respondent urges that review of the manager's decision does not imply review of the November decision of the visa officer, a decision which the applicant chose not to question by judicial review proceedings but rather to seek to have it changed by administrative review. That submission of course reflects Rule 302 of the Court's Rules which provides that an application for judicial review shall relate to one decision only, unless the Court otherwise orders.
[19] For the applicant, it is urged that the circumstances here are similar to those considered by Mr. Justice Teitelbaum in Azarpajooh v. Canada (Minister of Citizenship and Immigration)3, but I am not persuaded this is so. In that case, the Court considered an application for judicial review of the negative decision of a visa officer, after the applicant had requested that it be reviewed or reconsidered by programme managers with a number of similar decisions made by the same officer and in circumstances where it had been agreed that the files remained open pending that review. The review, completed more than three months after the visa officer's initial decision, upheld the original decision. In that case no issue was raised about failure to seek review in timely fashion after the original decision, since the decision was not considered final until the review by administrators was completed and the Court in that case considered the decision as confirmed to be the subject of the proceedings.
[20] In the circumstances of this case, while the decision of the visa officer is not directly in issue by the application, insofar as the manager's review of that decision can be said to be unreasonable that may form the basis for this Court to intervene. If that unreasonableness arises because the manager upheld the visa officer's decision which was unreasonable in the sense provided by s. 18.1(4)(d) of the Federal Court Act, then, in my opinion, in the interests of justice this court could intervene to set aside the manager's decision, and by necessary implication it could order that the visa officer's decision, if unreasonable, be set aside.
The Respondent's assessment of the applicant's experience
[21] I deal with three of the issues raised by the applicant; each concerns the assessment of her experience in relation to her requested intended occupations. The applicant submits that the manager's conclusion was perverse and made without regard to the totality of the evidence. It is urged that the decision demonstrates that he failed to conduct a thorough review of the application, noting particularly the failure to provide reasons for the applicant receiving zero points for experience in her intended occupations, as those were raised at the interview. Further, it is urged that he failed to deal with the visa officer's failure to consider the two other occupations. As we have seen, that alleged failure is denied by the visa officer who, by his affidavit, claims that his assessment of those occupations led to the same result, a zero assessment for experience.
[22] The respondent notes that the affidavit of the operations manager shows that he did indeed conduct a thorough review by re-evaluating all documentation on file and following up by questioning the visa officer. There was no cross examination on his affidavit and there is no evidence, apart from the applicant's own affidavit and two letters from employers of the application, that describe her job experience. That evidence does not directly contradict the visa officer's assessment, based on questions and answers at the interview, that she did not have the minimum of one year's experience to be assessed in relation to the occupational responsibilities set out in the CCDO descriptions. That assessment led to zero points awarded in relation to the two occupations both parties agree were raised at the interview, and subsequently in relation to the other two occupations requested, as the applicant says at the interview and as the visa officer avers were first raised by correspondence after the interview.
[23] The applicant also disputes the following conclusion made by the manager in his February 9, 1998 letter:
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5. Letters of reference and self-prepared job descriptions can be tailored to fit a CCDO job description, and thus of a self-serving nature. They are but one element in a visa officer's determination. |
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The applicant argues that the job descriptions and letters of reference were provided by her employers. Furthermore, the credibility of those documents was not raised as an issue at the interview and the applicant was not advised of any concerns in this regard. The applicant questions why, if credibility was an issue, the authors of the letters were not contacted. It is urged that the above quoted conclusion suggests that the manager failed to weigh the letters in reaching his determination.
[24] The respondent submits that the manager made no finding of credibility. The argument that the manager failed to consider the evidence in its totality, in the absence of evidence to support that assertion, is without merit.4 The manager, whose letter of February 9, 1998 gave rise to this concern of the applicant, sets out in his affidavit that his reference to the possibility that letters and job descriptions may be self serving was intended to indicate that visa officers do not rely on written descriptions without considering the information gained through the interview, and where there are differences in these the visa officer may place more stock in the applicant's spontaneous answers at the interview. That explanation was not questioned by cross-examination. In my opinion no question is here raised in the manager's letter of February 9, 1998 about the credibility of the letters from employers submitted by the applicant. In my view, there is no basis to conclude that the manager erred in finding that the assessment of the visa officer, based on the interview, was reasonable.
[25] The applicant cites Hajariwala v. Canada (Minister of Employment and Immigration) et al.5 to support an argument that visa officers have a duty to provide adequate reasons for refusals, particularly when assessing experience. In that case, Jerome A.C.J. (as he then was) said6:
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"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." |
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In my view, the issue in Hajariwala was whether experience in particular responsibilities of an intended occupation could be separated and allocated to an applicant's alternative intended occupations. The reference by Jerome A.C.J. concerns providing reasons for the assignment of that experience to alternative occupations, rather than providing reasons for refusal generally. With respect, I am not persuaded there is a duty to set out detailed reasons for a refusal, or for the assessment assigned to any factor, including experience. In his letter of refusal in November 1997, the visa officer advised that he had determined she had "zero experience" in her stated intended occupation. In his affidavit, he states that as a result of the interview he was not convinced she had a minimum of one year cumulative experience in either of the two job classifications raised at the interview, and further, that at the interview he did explain the reasons for refusals in both occupations.
[26] For the applicant failure of the visa officer to mention in his letter in November any consideration of her application with respect to the three alternate occupational classifications, in addition to that stated on her application form, obviously created uncertainty in the circumstances of this case. While it may have been discourteous not to advise the applicant in writing of her assessment in relation to all occupations requested, and here assessed, that failure does not constitute error that would warrant intervention of this Court. The visa officer's notes of the interview support his affirmation that he did assess her in relation to the classification Administrative Officer at the time of the interview. He subsequently assessed her in regard to the two other occupations brought forward by her letter of September 30, 1997, as his affidavit affirms. His decision is discretionary. Absent evidence of bad faith or that it was unreasonable on the evidence before him, standards not here met, his decision will not be set aside.7
Failure to assess the applicant as an assisted relative
[27] The parties dispute whether the applicant provided proof of her Canadian relative at the interview. The visa officer refused to consider documentation that the applicant subsequently forwarded which purported to prove the existence of that relative because it was not provided during the interview. The applicant alleges that this was an error of law and that the officer should have accounted for the relative in his assessment. The applicant also notes an inconsistency in the visa officer's statements. Specifically, in his affidavit the visa officer stated that he concluded that the documentation was insufficient to establish a relationship before preparing his refusal letter, while in his computerized log notes, he wrote that he could not consider the documentation because it was provided after the interview. Finally, the applicant alleges that the visa officer's conclusion that there was insufficient proof of a relationship is simply wrong.
[28] The applicant's dissatisfaction with the visa officer's failure to award bonus points for a close relative in Canada is not, in itself, a basis to intervene. It is the visa officer's evidence that he had determined the application should be refused because the applicant did not have the minimum experience to be assessed. He avers that he advised the applicant of the reasons for this at her interview. Evidence of a relative, which he says was subsequently provided, was not thereafter considered. Since the applicant, having had a zero assessment for experience, was not admissible to Canada as a permanent resident, the manager's conclusion that the issue of bonus points for a close relative was moot, is an entirely reasonable conclusion, consistent with that of Mr. Justice McKeown in Besil v. Canada (Minister of Citizenship and Immigration).8
Personal suitability
[29] The applicant urges that the visa officer erred in his assessment of her personal suitability, and that he made no reference to, and appeared to ignore, evidence of a job offer in Canada. The visa officer reported in his refusal letter that he considered that the applicant "would experience some difficulty in establishing in Canada", and determined the units awarded based on that assessment. In his affidavit, the visa officer explained that he found the applicant's adaptability, motivation, initiative, and resourcefulness to be average and thus awarded her six units of a maximum possible ten units. The position of his refusal letter is said by him to be a part of "the standard form refusal letter for all applicants who receive less than seven units of assessment for the 'Personal Suitability' factor." To the applicant, this assessment was perverse and made without regard to the totality of the evidence. The applicant listed various factors suggesting that she should have been awarded a higher personal suitability score.
[30] In Gill v. Canada (Minister of Citizenship and Immigration)9, where the visa officer awarded the applicant zero points for suitability, Jerome A.C.J. (as he then was) stated:
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The legislative provisions confer a broad discretion on a visa officer in making a determination of this nature and it is entirely within his jurisdiction to form an opinion concerning an applicant's personal suitability based on factors such as adaptability, motivation, initiative, resourcefulness and other qualities. Provided that opinion is reasonable and is neither arbitrary or capricious, there are no grounds to warrant judicial interference. |
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[31] The manager's letter of February 9, 1998 sets out that in his view the issue of appropriate assessment of personal suitability was moot in view of the assessment of zero points for experience. Since the latter resulted in her inadmissibility as a permanent resident, there is nothing unreasonable in the manager's conclusion, and his refusal to reassess the applicant's personal suitability is not an error that would warrant intervention.
Conclusion
[32] I am not persuaded that there is any basis to set aside the decision of the operations manager which, in effect, upheld the visa officer's decision to refuse the application for permanent residence in Canada by the applicant. The key to that decision, made with reference to the applicant's stated intended occupation and to others added at her interview or subsequently by letter, based upon the interview as well as the letters of reference from her employers, was the officer's determination that she did not have the minimum year of cumulative experience in the various job classifications and thus was rated as zero for experience. As a result she was not admissible as a permanent resident. That decision was discretionary and no basis is here established for it to be set aside.
[33] I therefore dismiss this application for judicial review, and an Order now issued so provides.
[34] That Order goes expressly without costs awarded to either party. Although each asked for costs in written submissions, no argument about costs was made at the hearing, and in particular no special reasons for an award of costs were raised. While the Court has broad discretion in relation to costs under Rule 40010, that discretion is restricted in relation to proceedings, such as this, under the Federal Court Immigration Rules, 199311, which by Rule 22 provide that no costs shall be awarded in respect of an application under those Rules unless the Court, for special reasons, so orders. There are no special reasons here.
___________________________
JUDGE
OTTAWA, Ontario
May 21, 1999
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1 SOR/78-172 as amended.
2 R.S.C. 1985, c. F-7 as amended.
3 [1997] F.C.J. No. 333 (F.C.T.D.), online: QL (FCJ).
4 See Williams v. Canada (Minister of Citizenship and Immigration) , [1997] 2 F.C. 646 (F.C.A.).
5 (1988), 6 Imm. L.R. (2d) 222 (F.C.T.D.).
6 Ibid., at page 230.
7 See Besil v. Canada (Minister of Citizenship and Immigration) , [1998] F.C.J. No. 969 (F.C.T.D.), online: [1982] 2 S.C.R. 2=">QL (FCJ) and Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, 44 N.R. 354, 137 D.L.R. (3d) 558.
8 supra, note 7.
9 [1996] F.C.J. No. 451 (F.C.T.D.), online: QL (FCJ).
10 Federal Court Rules, 1998, SOR/98-106.
11 SOR/93-22.
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