Date: 19990706
Docket: IMM-5578-98
OTTAWA, Ontario, the 6th day of July 1999
PRESENT: The Honourable Mr. Justice Rouleau
Between:
PAUL RIZK
Applicant
And:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
ROULEAU J.
[1] The application is allowed and the applicant"s file is referred back for reassessment by another visa officer.
P. ROULEAU
JUDGE
Certified true translation
M. Iveson
Date: 19990706
Docket: IMM-5578-98
Between:
PAUL RIZK
Applicant
And:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a decision dated September 18, 1998, by Merrill Clarke, a visa officer at the Canadian High Commission in London, United Kingdom, refusing the application for permanent residence of the applicant and his family.
[2] The applicant is seeking an order setting aside the decision and referring the matter back for redetermination by another visa officer.
[3] Mr. Rizk is a citizen of Lebanon residing in the United Arab Emirates (UAE). He is approximately 50 years old. In April 1997, he filed an application for permanent residence for himself, his wife and their three children in the independent and skilled worker categories and as assisted relatives. He asked to be assessed as a personnel officer (Canadian Classification and Dictionary of Occupations (CCDO) 1174-118).
[4] On August 9, 1998, the applicant, his wife and their daughter Paula attended a selection interview with visa officer Merrill Clarke at the Consulate of Canada in Dubai, UAE. The interview was held in English. Mr. Clarke asked the applicant questions about his education and work experience.
[5] The applicant completed his secondary education and obtained a diploma in primary education from the École normale in Lebanon. He then taught mathematics at different primary grade levels for 13 years, until June 1980.
[6] Since August 1980, the applicant has worked as director of personnel for the Arab subsidiary of CIMEL, a Belgian electrical engineering consulting firm. He was responsible for human resources for approximately 250 employees, but this number varied according to CIMEL"s contracts and projects under construction. CIMEL"s labour force came mainly from Asia and the managerial staff was mainly of European origin.
[7] The applicant has US$97,000.00 in cash. His employer confirmed that he would receive a severance package totalling US$35,000.00.
[8] The applicant stated that he wanted to immigrate to Canada because he no longer had much of a future in the UAE. CIMEL was not accepting new contracts and its work was limited to the completion of projects under construction. It would be very difficult for him to return to Lebanon after an 18-year absence and the ethnic changes in his region of origin due to the civil war. He wanted to settle in the Ottawa area. Several of his relatives and friends live in that area and he felt its bilingual character was an advantage for his wife and their children as French was the language best understood by the rest of the family. Mr. Rizk himself speaks three languages, namely French, Arabic and English.
[9] At the end of the interview, Mr. Rizk asked if the officer foresaw any significant obstacles to his application being accepted. According to the applicant, Mr. Clarke answered that his academic qualifications could make finding work difficult, especially because he had not studied law. The applicant replied that he was ready to accept a more junior position at the beginning and to take the courses required to upgrade his skills. He also informed Mr. Clarke that his cousin had a business in Ottawa and had offered him a job as assistant manager. It also appears that CIMEL"s former chief accountant had spoken about the applicant to several of his relatives in Canada with similar businesses. These people appeared interested and might eventually offer him a job.
[10] The visa officer decided that the applicant did not meet the requirements for the occupation of personnel officer. Also, although he had 18 years of experience in human resources, his skills were unique to the employment environment of the UAE and were not portable to the Canadian market. The officer accordingly decided to assess the applicant as an administrative officer (CCDO 1179-182). He believed that this occupation was a better fit with the applicant"s qualifications.
[11] The officer also assessed the applicant"s qualifications by reference to the descriptions of occupations in the National Occupational Classification (NOC). However, according to the officer, the applicant did not meet the requirements of the relevant occupations.
[12] In a letter dated September 18, 1998, the visa officer informed the applicant that his application was refused because he had not obtained the required 70 units. The units were allocated as follows:
| Education and Training 15 |
| Bonus (Family in Canada) 5 |
[13] The applicant raises four issues. First, he argues that the visa officer erred in finding that he did not meet the requirements for the occupation of personnel officer and in awarding him only three units of assessment for the Personal Suitability factor. The applicant also claims that he had a reasonable expectation that the visa officer would exercise his discretion under paragraph 11(3)(a) of the Regulations in his favour. Last, he submits that the visa officer acted unfairly by not informing him of the weak points of his file.
1. The assessment of the applicant as a personnel officer
[14] Mr. Rizk asked to be assessed as a personnel officer. This occupation is described in the CCDO as follows:
| Provides personnel administrative services for commercial, industrial, governmental or other organization, performing any combination of the following duties: |
|
| Confers with management representatives and department supervisors to determine personnel requirements and carries out analyses as required to obtain detailed information about job specifications. Prepares job descriptions for positions in organization, and advertises vacancies. Interviews and tests applicants, selects most suitable candidates and settles terms of employment, or submits proposals to management. Interviews new employees to advise them on pay and other conditions of employment, such as hours of work, leave and attendance and promotional opportunities. Provides advice, guidance and information to supervisors and employees on interpretation, application and implementation of personnel policies, procedures and regulations, concerning matters such as employee performance, discipline, welfare and health, and training courses. Counsels employees to assist in solving personal problems or difficulties associated with work. Plans and organizes training of employees by identifying kinds of training required, evaluating and selecting suitable training methods, and conducting courses, or recommending courses available from outside agencies. Resolves staff problems in areas such as employee performance, absenteeism and grievances, by interviewing employees and supervisors and recommending or initiating remedial action. Assists in planning and organizing services, such as canteens, first aid facilities and safety programs, pension schemes and other welfare and recreational facilities for employees. Maintains confidential personnel records. |
|
| May supervise clerical staff. May specialize in particular area of personnel work, such as training or staff relations, and be designated accordingly; for example, Staff-Relations Administrator, Staff-Training Officer |
|
[15] The officer asked the applicant about his work experience. He wrote the following in his notes:
| Since 80 has worked for COMEL Abu Dhabi Co progressing from personnel officer to personnel manager. Currently handles all visa formalities (up to 550 ees). Arranges group vsas, mostly Indian and Pkstni, some Belgians who are officers in co. Occasional Brit instrument technicians. Staff usually contracted between 12/16 mos and then rtn home. Good ees are transferred to next proj. |
|
| Uses co databank to recruit, 80% of ees are ees from prev. proj. Due to changes in co. t/o; sbj remains alone to complete general office activities as well, Co. cannot close until Jun 99 as must remain to complete warranty period for last proj |
|
| Seem like a nice family but sbj's initial training/quals are as a teacher and since entering UAE are unique to emirates environment. Nearly all his time is spent organizing uae work visas. Skills are not portable to Cdn labour mkt. |
|
[16] According to the officer, the applicant did not meet the requirements of the occupation. He also considered that the applicant"s experience was limited to the UAE environment and was thus not portable to the Canadian market.
[17] An applicant need not perform all of the tasks described in the CCDO during his or her career, but only a combination thereof. In Muntean v. Canada,1 Cullen J. wrote:
| I agree with the applicant that job descriptions in the CCDO should be broadly construed and that an applicant need not perform all of the tasks in the description to qualify in a particular occupational category. If a visa officer mechanically adhered to the CCDO description and demanded that an applicant has performed each job duty, it could be said that the visa officer would be fettering his or her discretion. |
|
[18] Nevertheless, a visa officer must ensure that the applicant performed a majority of the tasks listed. In Braganza v. Canada (M.C.I.),2 Muldoon J. stated:
| From Muntean what is demanded of a visa officer is to conduct an assessment to determine whether the applicant performed the substantial requirements of the position in order to be able to conclude on a balance of the evidence that the applicant can be classified into that job position. |
|
[19] This interpretation is consistent with the goal of ensuring that the applicant is indeed qualified to work in that occupation in Canada. The fact that a person may have performed some of the listed tasks does not necessarily mean that he or she is fully qualified to work in that occupation in Canada. In Cai v. Canada (M.C.I.),3 Pinard J. wrote:
| In the present case, after the applicant was given some opportunity to explain the duties she had performed in her various positions, not only did the visa officer conclude that the applicant did not satisfy the formal training requirements set out in the definition of executive secretary in the CCDO, the visa officer noted that there was nothing in the supporting documentation supplied by the applicant to indicate the tasks she had performed in her various positions were commensurate with those performed by secretaries or executive secretaries in Canada, notwithstanding the fact that one the positions she had held was ostensibly that of "executive secretary." Indeed, simply because the applicant herein may have performed some of the tasks performed by an executive secretary does not necessarily mean she is fully qualified to work in that capacity. (Emphasis added.) |
|
[20] In support of his application, Mr. Rizk submitted a certificate of experience issued by CIMEL which certified that he had been employed as a "Personnel Manager" since August 1980. This certificate does not describe the responsibilities of the position. He also submitted his resume which was written in English. The following is a comparison of the applicant"s resume and the requirements of the CCDO:
| CCDO
|
Resume
|
| Confers with management to determine personnel requirements
|
Assessing the manpower requirement in the organization
|
| Carries out analyses as required to obtain detailed information about job specifications
|
Defining the selection criteria
|
| Prepares job descriptions for positions in organization
|
Preparation of job description
|
| Advertises vacancies
|
Formulating manpower resources mobilization strategy
|
| Interviews and tests applicants, selects most suitable candidates
|
Arranging interviews
|
| Settles terms of employment, or submits proposals to management. Interviews new employees to advise them on pay and other conditions of employment, such as hours of work, leave and attendance and promotional opportunities
|
Preparation of employment contracts, visas, work permits and other legal document processing. Defining the personnel remuneration and related matters - recruitment of personnel from overseas and local sources
|
| Provides advice, guidance and information to supervisors and employees on interpretation, application and implementation of personnel policies, procedures and regulations, concerning matters such as employee performance, discipline, welfare and health, and training courses
|
Management of employee wages, leaves and indemnities and other benefits
|
| Plans and organizes training of employees by identifying kinds of training required, evaluating and selecting suitable training methods, and conducting courses, or recommending courses available from outside agencies
|
Assessing employee training requirements and establishment of employee training schemes
|
[21] It would clearly have been preferable to have an objective job description provided by the employer, rather than having to rely on the resume prepared by the applicant. However, the officer expressed no doubt about this evidence and seems to have accepted it.
[22] In his affidavit, the applicant states that he told the officer that his responsibilities included recruiting the required personnel from the various building crafts and trades to complete CIMEL"s projects, supervising and securing the payment of salaries and benefits, and attending to the formalities of the ministries of labour, the interior and immigration of the UAE and the government of the Emirate of Abu Dhabi. He also looked after keeping CIMEL"s operating licences, registrations and legal authorizations up to date and renewing them with the authorities. At various times in the past when CIMEL had fewer projects in the UAE, he was in charge of the subsidiary in the Emirates.
[23] I am of the view that the applicant meets the requirements of the occupation of personnel officer. In fact, several of the duties and responsibilities listed in the CCDO correspond to the duties described in his resume and during the interview. It appears that the visa officer put a great deal of emphasis on the fact that the applicant mainly handled visas for foreign workers, experience which is not portable to the Canadian market. In so doing, he did not examine the duties the applicant performed over the last 18 years, but only his responsibilities during the time when the office was there solely to honour its warranties on work in progress.
[24] The applicant"s file contains his counsel"s assessment of the applicant as personnel officer. His counsel and the visa officer awarded the applicant the same number of units, except that the officer awarded him 16 units for the occupation of "administrative officer" and his counsel proposed 18 units for the occupation of personnel officer. His counsel"s suggested total before the assessment of the personal suitability factor is 62 units; however, the applicant obtained only 3 units for this factor. Therefore, even when assessed as a personnel officer, the applicant did not obtain the required 70 units. The issue of the assessment of the applicant as a personnel officer would therefore be of no consequence except if it was determined that the officer also erred in his assessment of the applicant"s personal suitability.
2. Factor 9 - Personal suitability
[25] An applicant is awarded units of assessment under this factor if the applicant and his or her dependents are able to become successfully established in Canada based on the applicant"s ability to adapt, his or motivation, initiative, ingenuity and other such qualities. As long as the visa officer"s assessment of personal suitability is reasonable, the Court must not intervene.4
[26] In the instant case, the visa officer awarded the applicant only three units under the personal suitability factor. In his affidavit, he explained that the applicant had not taken the initiative of inquiring about the Canadian labour market and the operation of the human resources field in Canada. The applicant knows only that they are different from the system in the UAE. He did not do any research on the portability of his experience to the Canadian market. The officer concluded that he had not displayed enough initiative and motivation.
[27] During the interview, the officer noted:
| Why Cda? During past 4/5 yrs, forced to live separately, sbj in Abu Dhabi and wife/chdlrn in Lebanon as want to follow french system of education. . . . Very diff to reestablish in Lebanon. |
|
| Have you studied contract law in Cda? No. Have you looked at empmnt situation in Cda? No. Colleague's relatives may have job for him. Also I have cousins who runs a commercial inst. and ready to offer me a temp job (in his small supermarket). |
|
| Subj has not researched move. Knows nothing about cdn labour, contract law etc. only that it is different. |
|
[28] The fact that the applicant did not inquire about employment opportunities in his field and did not try to learn about the operation of the human resources field in Canada is a relevant consideration which indicates a certain lack of initiative on the applicant"s part.
[29] However, it appears that the visa officer misconstrued the applicant"s motivation for coming to Canada and becoming successfully established here. The applicant explained that he no longer has a job in the UAE and he cannot go back to Lebanon. Even though peace has returned to Lebanon, the civil war has changed the social and community composition of his region of origin a great deal. The consequences of the war are still present in people"s minds and attitudes and there is a certain resentment toward those Lebanese who emigrated during the years of trouble. His friends and family have all left the area. He no longer has any work-related contacts. Many of his family members and friends live in the national capital region and his daughter is studying at the University of Ottawa. The only thing that stood out for the visa officer, however, was the fact that the members of the applicant"s family had remained in Lebanon during the last years of his employment in the UAE because they preferred the French system of education. The officer implies that the applicant"s family always preferred to stay in Lebanon. This conclusion is not consistent with the evidence on the record. The applicant stated that his family had remained in Lebanon, not because they preferred to do so, but because the public education system and the institutions of higher learning in the UAE do not accept the children of foreign workers. The applicant"s children thus had to continue their studies in Lebanon or in other countries.
[30] Although the applicant did not display much initiative in inquiring about the labour market in Canada, he did demonstrate several other qualities which clearly warranted an above-average allocation of units. He has qualities which demonstrate an ability to adjust to Canada. He has already changed careers in the past and has already successfully adjusted to another country, the UAE. He also speaks three languages, including both of Canada"s official languages. The applicant also indicated his intention to make up for his lack of knowledge in the human resources field and is perfectly willing to accept a more junior position in the interim. In fact, his cousin has offered him a job in a small supermarket. The applicant has already taken the initiative of asking a colleague about job prospects and this colleague recommended him to friends in Canada. He has sufficient capital with which to begin his establishment. Accordingly, it was clearly unreasonable to award the applicant 3 units for personal suitability in the case at bar.
[31] It is not necessary to consider the two other issues raised by the applicant. The application is allowed and the applicant"s file is referred back for reassessment by another visa officer.
P. ROULEAU
JUDGE
OTTAWA, Ontario
July 6, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-5578-98
STYLE OF CAUSE: PAUL RIZK
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 21, 1999
REASONS FOR ORDER OF ROULEAU J.
DATED JULY 6, 1999
APPEARANCES:
Jean-Michel Montbriand FOR THE APPLICANT
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Doyon, Guertin, Montbriand & Plamondon FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 (1995), 103 F.T.R. 12 (F.C.T.D.).
2 (April 14, 1998), IMM-2222-97 (F.C.T.D.).
3 (January 17, 1997) IMM-883-96 (F.C.T.D.).
4 Mou v. Canada (M.C.I.) (November 5, 1997) IMM-1731-96 (F.C.T.D.).
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