Date: 19990616
Docket: IMM-3045-98
BETWEEN:
BULENT KESICI
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
[1] In this section 18.1 Federal Court Act judicial review proceeding, Bulent Kesici, ("the applicant"), seeks to set aside the decision of Halina Roznawski, Immigration Officer, ("I.O.") dated May 22, 1998, who refused the applicant's application for permanent residence (PRA) dated April 25, 1997, in the independent category with an intended occupation in Canada as Electrical Engineer. Mr. Kesici's PRA was filed with the Canadian Consulate General in Buffalo, N.Y., and he was interviewed by the I.O. in Detroit, Michigan.
[2] The applicant is a citizen of Turkey and now resides in the United States. The applicant's PRA indicates he graduated with a Bachelor of Engineering (diploma in electrical engineering) from Yildiz University in Istanbul, Turkey, in March 1989.
[3] In terms of his work experience, his PRA discloses:
| (a) from September 1988 to August 1989, he worked as an electrical engineer with GUC Follektif in Istanbul, Turkey; |
| (b) from August 1989 to November 1992, he worked for CEL Management in Bayshore, N.Y., as a manager; |
| (c) from November 1992 to September 1995, he worked as an electrical engineer with Atameken Corporation in New York City; |
| (d) from September 1995 to date, he worked at Er-Hal Corporation in Shirley, N.Y., as a manager. |
[4] His PRA application was supported by letters from his employers spelling out his work duties and experiences.
[5] The GUC Follektif letter of April 1, 1997, says that the applicant was employed for one year (1988 to July 1989) as an electrical engineer where his main duties were:
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1). Supervised the electrical construction of 100 buildings each having 25 apartments. |
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2). Responsible for the supervision of 80 workers. |
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3). Inspected the work of technicians. |
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[6] The letter from Atameken Corporation says the applicant worked in New York from November 1992 to September 1995 as an electrical consultant and his duties were to provide consultation, operating standards and acquire electrical and electronic equipments such as outdoor conditioners, coolers, compressors and audio/video components
| C. THE VISA OFFICER'S DECISION |
[7] By letter dated May 22, 1998 to the applicant's solicitors, the I.O. advised that the applicant did not meet the requirements for immigration to Canada. The I.O. advised that the applicant was assessed based on the requirements for the occupation of an Electrical Engineer and that he was awarded the following units of assessment:
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Occupational demand 05 units |
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Specific vocational preparation 18 units |
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Arranged employment 00 units |
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Demographic factor 08 units |
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Personal Suitability 05 units |
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[8] The I.O. advised the applicant a total of 70 units of assessment was required in order to qualify for immigration and added that she considered the units of assessment which he has been awarded as an accurate reflection of his ability to successfully establish in Canada. She added the following:
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At interview, we discussed the duties that you performed at GUC Follektif. You were very vague with your descriptions. I read you the definition from the CCDO and you did not understand most of it and could not explain it to me. Therefore, I am not satisfied that the duties you performed were those of an electrical engineer. We next discussed your duties at Atameken Corp in the USA. You stated that you researched electrical compressors and electronic goods for direct export from China to Turkey. Considering that you were in the USA at the time, and travelled to China only once, I do not believe that you could have performed the duties of an electrical engineer at this job either. I believe that the duties performed at this company were those of a purchasing officer, material, CCDO 1175-118 and have awarded you full points for experience. However, the total units of assessment is 68. Although the Canadian Council of Professional Engineers have approved your educational qualifications, it is my duty to confirm that you have the required experience in the occupation. Your letters of reference were verified before the interview, however, your lack of knowledge of duties performed by an electrical engineer led me to believe that you could not meet the definition as described in the CCDO. |
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There is no other occupation apparent on your application in which you or your spouse are qualified and experienced, and under which your application would be successful. Your application has also been considered under the NOC system which came into effect on May 01, 1997 but the decision remains unchanged. |
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| D. THE AFFIDAVITS ON JUDICIAL REVIEW |
(a) The applicant's affidavit
[9] The applicant's affidavit focusses on the assessment he received for the experience factor as an electrical engineer and for the personal suitability factor.
(i) The experience factor
[10] Here, the applicant stated he worked as an electrical engineer in excess of four years in the U.S. and Turkey (for GUC Follektif and for Atameken Corporation). He admits he was nervous at the interview because his experience at GUC Follektif had been "approximately 10 years ago". He says "given the above factors, my recollection of my specific duties were not at my fingertips". He goes on to say he performed the duties as stated in his work reference letters as submitted to the I.O. prior to the interview of which the I.O. states in the refusal letter that my "reference letters were verified before the interview".
[11] In paragraph 10 of his affidavit, the applicant states:
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10. In the alternative, the officer states that she assessed me in the intended occupation of Purchasing Officer CCDO 1175-118 and having awarded "full points for experience" I would only score "68 points". I respectfully submit that the officer ought to have instituted positive discretion pursuant to section 11(3) of the Immigration Act as I believe that besides my awarded points and given my work history, education, language ability, sufficient settlement funds, and successful establishment in the United States/North American society, I have the ability to successfully establish myself in Canada. |
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(ii) The personal suitability factor
[12] In terms of this factor, the applicant says that the visa officer's assessment of his ability to become successfully established in Canada based on his adaptability, motivation, initiative, resourcefulness and other similar qualities was incorrect and that she erred in only awarding him 5 points for the personal suitability factor.
(b) The I.O.'s affidavit
[13] The I.O. filed an affidavit based on the computerized notes she recorded of her interview with applicant on March 17, 1998 (CAIPS notes). Her affidavit is consistent with her CAIPS notes and what she set out in her refusal letter.
[14] In terms of the applicant's duties with GUC Follektif, the I.O. states:
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5. ...However, at his interview, the Applicant was unable to describe his duties with this company other than in very vague terms. I was not convinced, therefore, that he had performed the work attributed to him in this letter. |
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[15] In terms of the letter from Atameken, the I.O. states:
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5. ...At his interview, the Applicant stated that he researched electrical compressors and electronic goods for direct export from China to Turkey. He said he adjusted the compressors to suit the air conditioning unit they would fit into. However, he also said that he only travelled to China once. I therefore did not believe that the Applicant performed the duties of an electrical engineer in the course of this employment. The duties he described to me appeared to me to correspond to that of a purchasing officer. This view was further supported by a power of attorney which the Applicant provided, which authorized the Applicant to conclude agreements concerning the supply of audio and video devices to Kazaghistan. I assessed the Applicant in the occupation of purchasing officer, however, he did not obtain sufficient units of assessment in that occupation to qualify for a landed immigrant visa. |
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[16] In her affidavit, the I.O. refers to the CCDO and having read the definition of electrical engineer to the applicant. She added this:
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6. ...Although the Applicant understood English very well, he did not understand the definition and could not explain many of the various duties referred to in the definition. Therefore, I concluded that he lacked experience as an electrical engineer. |
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[17] With respect to her assessment of the applicant's personal suitability, the I.O. simply stated:
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7. I awarded the Applicant five units of assessment in the category of personal suitability, based upon the motivation, adaptability, resourcefulness and initiative that he projected to me during the interview and was reflected in the documents filed in support of his application. |
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[18] Paragraph 8 of the I.O.'s affidavit speaks to the exercise of her discretion pursuant to subsection 11(3) of the Immigration Regulations. It reads as follows:
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8. Counsel for the Applicant wrote to me following the interview and asked that I exercise my discretion pursuant to subsection 11(3) of the Immigration Regulations favourably. I reviewed the application and concluded that there were not good reasons to believe that the units of assessment did not reflect the Applicant's chances of becoming successfully established in Canada. With respect to the fact that the Canadian College of Professional Engineers had indicated that the Applicant appeared qualified to write examinations for qualification as an engineer in Canada, this did not change the fact that the applicant had failed to establish that he had any experience working as an electrical engineer. The Immigration Regulations indicate that a visa may not be issued to an independent applicant who lacks experience in the occupation he intends to pursue in Canada. Accordingly, I viewed the Applicant's lack of experience as an important consideration indicating that he would not be able to become successfully established in Canada. |
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E. THE TRIBUNAL RECORD
[19] During argument, counsel for the respondent indicated the Tribunal record, at page 74, contained the applicant's solicitors preliminary point assessment which accompanied the filing of the PRA where "no" was indicated to the question "Is discretion required?"
[20] The Tribunal record also contains letters of reference from the applicant's two other employers. The letter from Er-Hal is dated April 1, 1997 and simply states:
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This is to certify that Bulent Kesici has been working for this company since September 1995. He is currently working as a manager. If you have further questions, please feel free to contact my office at your convenience. |
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[21] The other letter is from CEL Management Inc. and is dated April 10, 1997. It states that the applicant started at their marketing department in charge of inventory control and ordering and receiving. The company adds that later, he was instrumental in forming the company's maintenance and compliance department and during the last year of employment, he became manager of the department. His duties were being in charge of hiring contractors for maintenance, keeping maintenance records of their facilities and equipment such as underground storage tanks, pumps, etc. His duties also included the keeping of records required by regulatory agencies such as EPA.
[22] More important, the Tribunal record at page 5 contains a memorandum from the applicant's solicitors to the I.O. dated March 17, 1998, arising out of the I.O.'s interview with the applicant. The material part of this communication reads as follows:
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Further to the applicant's interview of this morning, we have been advised by the applicant that you have some concerns about his work experience. |
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Please be advised that besides the applicant's 1 year of work experience in Turkey, which we are advised you found to be satisfactory, the applicant only recently obtained a letter from Atameken Corp. that he was employed as an electrical consultant engineer, the duties of which are those of engineer. |
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You are welcomed to verify any job letters to satisfy yourself and to disabuse yourself of any concerns, as case law dictates prior to any refusal. |
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[23] At the bottom of this fax is a handwritten note from the I.O. which reads:
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I reviewed his letters of reference presented at interview. Application is refused. |
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F. ANALYSIS
(a) The experience factor " duty of fairness
[24] Relying on Saggu v. Canada (1994), 87 F.T.R. 137 and Fong v. Canada (Minister of Employment and Immigration) (1990), 11 Imm.L.R. (2d) 205, the applicant argued the I.O. breached a duty of fairness by not providing the applicant an opportunity to disabuse her in respect of impressions of deficiency in documentation submitted by the applicant. I did not require counsel for the respondent to argue this point. In this case, the I.O. clearly expressed her concern to the applicant at the interview and provided him with an opportunity to comment. The I.O.'s concern so forcefully registered in the applicant's mind that after the interview he immediately contacted his solicitors who made further submissions on the issue of work experience.
(b) The experience factor " reasonableness
[25] I indicated to counsel for the respondent, after hearing from counsel for the applicant, he need not address this issue further because the applicant had not made out his case. Based on the record, it was open to the I.O. to reach the conclusion she did in awarding the applicant zero (0) for the experience factor. This finding was not patently unreasonable in the light of the material before her as well as the inability of the applicant, at the interview, to satisfy her by not having a recollection of his specific duties at his fingertips and providing vague answers.
[26] Counsel for the applicant said the assessment by the I.O. was contradictory because her refusal letter said the applicant's letters of reference were "verified before the interview". According to applicant's counsel, this wording suggests that the I.O., through independent investigation, determined that the applicant, in fact, worked as an electrical engineer. There was no cross-examination of the I.O. as to what kind of verification she undertook. Because of the lack of cross-examination, it would not be proper for me to draw the inference suggested by the applicant; such an inference would require me to speculate on the meaning of those words used by the I.O. in her refusal letter. Wang v. Canada, [1991] 2 F.C. 165 (F.C.A.) speaks to the evidentiary limitations of a refusal letter.
(c) The personal suitability factor
[27] Counsel for the applicant's written and oral submissions as to the errors committed by the I.O. in her assessment of the personal suitability factor are general in nature. He says the I.O. did not take into account the applicant had been integrated in North American Society for some time, he was an engineer, a university graduate, spoke English well and had extensive work experience.
[28] Counsel for the applicant has not demonstrated to me any palpable error in the I.O.'s assessment . He is essentially asking me to redo the I.O.'s assessment. This is not my function on judicial review. In Gill v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm.L.R. (2d) 127, Jerome A.C.J. dealt with a challenge to an assessment on personal suitability. He said a determination of this nature is a matter of broad discretion entirely within the jurisdiction of the visa officer. He went on to say, provided his opinion is neither arbitrary or capricious and is reasonable (not patently unreasonable), there were no grounds for intervention. It is my view the principles in Gill are applicable here.
Applicant asserts the I.O. failed to take into account the applicant's wife's background, education and work experience as a designer in properly assessing this factor. The personal suitability factor in Schedule I to the Regulations is described as follows:
| 9. Personal suitability
Units of assessment shall be awarded on the basis of an interview with the person 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.
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9. Personnalité
Des points d'appréciation sont attribués au requérant au cours d'une entrevue qui permettra de déterminer si lui et les personnes à sa charge sont en mesure de réussir leur installation au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et autres qualités semblables.
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[29] In my view, this wording does not impose an obligation on an I.O. to make an independent personal suitability assessment of the applicant's wife (assuming she qualifies as a dependant within the meaning of the Regulations). Under section 8 of the Immigration Regulations, an applicant may elect the assessment to be at the option of the immigrant or his spouse. Once that election is made, it is the person's ability, motivation, initiative, resourcefulness and other similar qualities which are assessed. In any event, the applicant's affidavit does not allege that this consideration was put forward by him to the I.O. and that she ignored it.
(d) The subsection 11(3) argument
[30] Subsection 11(3) of the Immigration Regulations reads as follows:
| 11. (3) A visa officer may
| (a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or |
| (b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10, |
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
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11. (3) L'agent des visas peut
| a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou |
| b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10, |
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
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[31] Applicant's counsel argues the I.O. improperly exercised her discretion in respect of this subsection because she failed to take into account a relevant consideration. He argued she only took into account his occupation as an electrical engineer and not the occupation in which she said he was qualified and in which he had experience " that of a purchasing agent. I am of the view the applicant succeeds on this point.
[32] It is clear from paragraph 8 of the I.O.'s affidavit that she only had in mind the applicant's occupation of electrical engineer because of the emphasis on the lack of experience. The applicant had none as an electrical engineer but had some as a purchasing agent.
[33] The Supreme Court of Canada in Chen v. Canada, (Minister of Employment and Immigration), [1995] 1 S.C.R. 725, endorsed the interpretation placed on this subsection by Strayer J., as he then was, at trial, [1991] 3 F.C. 350, and by Robertson J.A., in dissent, [1994] 1 F.C. 639 in the Court of Appeal.
[34] In Chen, (supra), Strayer J. examined on what grounds can the visa officer exercise his discretion in forming the opinion that there are "good reasons" why the number of units awarded do not reflect adequately the chances of an immigrant becoming "successfully established" in Canada. He was of the view the discretion provided to a visa officer in subsection 11(3) must be seen as integral to the exercise by the Governor in Council of his regulation-making authority under paragraph 114(1)(a) of the Act to establish selection standards. (The source of the "point" system or "units of assessment".) After examining the selection standards reflected in the Immigration Regulations where the factors and criteria seem to focus on the ability of an immigrant to make a living in Canada or to be economically sustained other than by the state, Strayer J. said this at page 361:
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Given this emphasis on economic factors as identified by both Parliament and the Governor in Council for determining whether an immigrant can become "successfully established" in Canada, it is difficult to read the discretionary power granted to a visa officer by subsection 11(3) of the Regulations as allowing him to ignore the number of units of assessment and to determine, for essentially non-economic reasons, that an immigrant does not have a chance of becoming successfully established in Canada. While the subsection only requires that the visa officer have "good reasons", those reasons must be such as to lead him to believe that the immigrant cannot become successfully established in the economic sense. |
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[35] The Immigration Regulations require that an applicant not only be assessed in the occupation or occupations designated in his application for permanent residence; an assessment must be made of the occupation which, based on experience, the visa officer considers the applicant qualified to pursue in Canada (Lim v. M.E.I. (1991), 121 N.R. 241, (F.C.A.), Gaffney v. Minister of Employment and Immigration (1991), 121 N.R. 256, (F.C.A.).)
[36] The I.O. believed the applicant performed the duties of a purchasing agent and awarded him 68 points. However, she did not take into account, in the exercise of her discretion under section 11(3) the occupation in which she felt he had experience in the light of the interpretation cited above.
[37] The perspective of the discretion to be exercised under section 11(3) of the Act is an economic perspective, the purpose of which is to determine whether, notwithstanding the point system, an applicant might become successfully established in Canada. By not taking into account the occupation of purchasing officer, the I.O., in my view, failed to take into account a relevant consideration and, as a result, improperly exercised her discretion ([1982] 2 S.C.R. 2">Maple Lodge v. Canada, [1982] 2 S.C.R. 2 and Khan v. Canada (Minister of Citizenship and Immigration) (1997), 128 F.T.R. 126.
[38] I have concluded the I.O.'s point assessment is proper but there was a failure by the I.O. to properly exercise her discretion under subsection 11(3) of the Regulations. The applicant's application for permanent residence is remitted back to the I.O. to enable her to properly exercise her discretion. There shall be no costs, success being divided.
J U D G E
OTTAWA, ONTARIO
JUNE 16, 1999
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