Bandoo v. Canada, docket IMM-1969-96

     IMM-1969-96

B E T W E E N:

SAROJINI BANDOO

Applicant

- and -

MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA

Respondent

REASONS FOR ORDER

NADON J.:

     This is an application for judicial review pursuant to which the applicant seeks to set aside the decision of Heather Dubé, First Secretary of the Canadian High Commission in Port of Spain, Trinidad & Tobago (the "Visa Officer") dated March 7, 1996 wherein she refused the applicant"s application for landing in Canada.

     The applicant, a citizen of the Republic of Trinidad and Tobago, born on June 19, 1961, applied for permanent residence in Canada. Her application was made in the category of "assisted relative"¹ pursuant to paragraph 10(1)(b) of the 1978 Immigration Regulations, SOR/78-172 (the "Regulations").

     The Visa Officer examined the applicant"s application on March 6, 1996, and on the following day she wrote to the applicant and her husband² to advise them that their applications were refused. The portion of the letter concerning the applicant reads as follows:

Pursuant to subsection 10(1) of the Immigration Regulations, 1978, your spouse, Saojini [sic] Bandoo was assessed as an assisted relative on the basis of each of the factors listed below. She was awarded the number of units of assessment indicated after each factor:

Education                      05

Specific Vocational Preparation              15

Experience                      04

Occupational Demand                  03

Arranged Employment or Designated Occupation00

Demographic Factor                  08

Age                          10

Knowledge of English and French languages09

Bonus                          05

TOTAL UNITS OF ASSESSMENT          59

Sarojini Bandoo was assessed based on the requirements for the following occupation: Copywriter.

     As appears from the Visa Officer"s letter, the applicant was assessed as a "Copywriter" on the basis of eight factors in respect of which she obtained 54 points. Her total points of 59 included 5 bonus points.

     The applicant attacks the Visa Officer"s decision on a number of grounds. However, in my view, the only issue for determination herein is whether the Visa Officer properly assessed the applicant"s work experience. More particularly, the applicant submits that the Visa Officer should have interviewed her before making a decision on her application.

     In her application for permanent residence, the applicant indicated that her intended occupation in Canada was "advertising copywriter". She further indicated that she had work experience in her country as an "advertising copywriter". Specifically, the applicant stated that between August 1986 and June 1989 she was employed by C. Yip Choy Baillie Ltd. as an advertising copywriter and purchasing officer. She also stated that since February 1994 she was managing her own business, Dynamo Trading, and that she performed work as an advertising copywriter.

     With respect to her employment at C. Yip Choy Baillie Ltd., the applicant submitted a letter from her former employer dated August 8, 1995. The letter reads:

This is to confirm that Mrs. Sarojini Bandoo worked with this firm from August 1986 to May 1989. Her responsibilities with our firm were principally but not limited to the following:

the purchase and importation of food items from Canada to be distributed to retail outlets

the sale promotion of food items by composing written material to advertise the current and new products on television and radio

We were extremely satisfied with her work and recommend her highly. Her salary was $350.00 per week.

     Based upon her understanding of that letter, the Visa Officer concluded that the applicant had spent only half of her working time for her former employer as an advertising copywriter. As the applicant had worked for her former employer for a period of two years and nine months, the Visa Officer concluded that she had one year and four months of work experience as an advertising copywriter.

     The only other document submitted to the Visa Officer by the applicant was a certificate of registration of her company. Since the applicant did not provide any documentation or other proof regarding her responsibilities at Dynamo Trading, the Visa Officer did not consider her employment at Dynamo Trading for the purpose of assessing her work experience as an advertising copywriter. As a result, the Visa Officer gave the applicant four points for the factor "Experience".

     In her affidavit dated July 5, 1996, the Visa Officer, at paragraphs 9 to 14, explains how she assessed the applicant:

9.      Following the Canadian Classification of Dictionary of Occupations (thereafter "CCDO") (a copy of relevant page is produced as exhibit "C"), the occupation of "advertising copywriter" requires a Specific Vocational Preparation level of 7, which then has to be converted to 15 units following Appendix A of the Immigration Manual IS-4 (a copy of relevant page is produced as exhibit "D"). Therefore, assessed as an "advertising copywriter", the Applicant was awarded 15 units for the Specific Vocational Preparation.

10.      The Applicant submitted a letter from her former employer (a copy of which is produced as exhibit "E"), dated August 8, 1995, stating she had worked with that firm from August 1986 to May 1989, and describing her duties there.

11.      This former employer"s letter states some of the Applicant"s primary duties, among others, while she worked there.

12.      Only half of those primary duties described correspond to the duties of "advertising copywriter", as described under the CCDO.

13.      The Applicant also submitted a certificate of registration, dated June 14, 1994, for a company named "Dynamo Trading Company" (a copy of which I produce as exhibit "F").

14.      However, since no documentation or proof were submitted by the Applicant concerning the responsibilities and duties she would have held at Dynamo Trading Company, I did not consider this letter in evaluating the experience of the Applicant.

     As I indicated earlier, the applicant obtained a total of 54 points. She needed 55 in order to have the right to be called in for an interview. Section 11.1 of the Regulations provides:

11.1      For the purpose of determining whether an immigrant and the immigrant"s dependants will be able to become successfully established in Canada, a visa officer is not required to conduct an interview unless, based on a review of the visa application and the documents submitted in support thereof,

(a)      the immigrant is an immigrant described in paragraph 8(1)(a) and is awarded, for the factors set out in column I of items 1 to 8 of Schedule I, including, where required by these Regulations, at least one unit of assessment for each of the factors set out in column I of items 3 and 4 of that Schedule,

     ...

(ii)      at least 55 units of assessment, where the immigrant is an assisted relative referred to in paragraph 10(1)(b), ...

     Counsel for the applicant argued that the Visa Officer was wrong in not recognizing the applicant"s experience at Dynamo Trading since she had indicated in her application form that she did work for her company as an advertising copywriter. Counsel submits that if the Visa Officer had taken into account her work experience at Dynamo Trading, the applicant would have obtained six points, i.e. three years of experience multiplied by 2, thus her total would have been 56 points. As a result, she would have been entitled to an interview. Counsel also argued that the Visa Officer"s decision to allow only one year and four months of work experience in respect of her employment at C. Yip Choy Baillie Ltd. was an error.

     For the respondent, Me Guay argued that the Visa Officer had no duty to consider the applicant"s assertion in her application form that she had worked at Dynamo Trading as an advertising copywriter. Me Guay further argued that the burden was on the applicant to provide such evidence as was necessary to satisfy the Visa Officer of her work experience. Finally, Me Guay argued that the Visa Officer could not be faulted in the way she dealt with the letter received from the applicant"s former employer.

     Schedule I to the Immigration Regulations, referred to at subsection 11.1(a) of the Regulations, provides that where an applicant has more than one year of work experience and no more than four years, he or she shall be given two points for each year of experience up to three years. That is why, in the present instance, the Visa Officer gave the applicant four points. The Visa Officer concluded that by reason of her employment at C. Yip Choy Baillie Ltd. the applicant had gained one year and four months of work experience. Based on her assessment of the applicant"s work experience, the Visa Officer could have given her only two points as she did not have two years of work experience. However, the Visa Officer, for the purpose of assessment, considered that the applicant had two years of work experience and thus gave her four points.

     During the hearing, I indicated to counsel for the applicant that I could not see how one could fault the Visa Officer with respect to the way she dealt with the applicant"s work experience at C. Yip Choy Baillie Ltd.. The applicant"s former employer stated that the applicant"s responsibilities were "principally but not limited" to the purchase and importation of food items from Canada to be distributed to retail outlets and the sale promotion of food items by composing written material to advertise the current and new products on television and radio. The Visa Officer considered the second of the responsibilities as relating to her intended work in Canada and thus considered that the applicant had one year and four months of relevant work experience. On the basis of this document, I see no reason to criticize the Visa Officer.

     I now turn to the applicant"s work experience at Dynamo Trading. Specifically, should the Visa Officer have considered the time spent by the applicant at Dynamo Trading on her own assertion that she worked as an advertising copywriter in determining the number of points to which she was entitled under the heading "experience". For the reasons that follow, I am of the view that the Visa Officer was not obliged to consider the assertion made by the applicant in her application form.

     In support of her position, Me Guay referred me to a number of decisions. For the present purposes, I will refer to three of these decisions. Firstly, in Kashani v. M.C.I. (16 April 1997), Toronto IMM-2580-96 (F.C.T.D.), McKeown J. held that the onus was on an applicant to demonstrate that he had the ability to establish a business in Canada. Although the facts of that case do not bear any similarity with those of the case at bar, the principle stated by McKeown J. is one that stands out in a number of decisions concerning visa applications. Subsection 8(1) of the Immigration Act, R.S.C. 1985, c. I-2, provides that:

Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the Regulations rests on that person.

     In Duan v. M.C.I. (18 December 1995), Calgary IMM-1278-95 (F.C.T.D.), Gibson J. stated the principle as follows at 3:

Counsel argued that the visa officer should himself have reached out to obtain supplementary material against which the applicant"s training and work experience might have been more appropriately assessed. The onus to do so did not lie on the visa officer. Rather, the onus was on the applicant as reflected in subsection 8(1) of the Immigration Act quoted earlier.

     Even more to the point is a decision of Rothstein J. in Mohammad v. M.C.I. (1995), 90 F.T.R. 310. In Mohammad the applicant was seeking to enter Canada in the category of "assisted relative". At 311, Rothstein J. states:

The applicant was awarded 54 units. Pursuant to s. 11.1(a)(ii) of the Regulations, there was no requirement for the Visa Officer to conduct an interview with the applicant in the case at bar once it was determined he had failed to receive at least 55 units of assessment. As a result, the Visa Officer did not grant the applicant an interview, and denied his application.

On this judicial review, counsel for the applicant argues that the Visa Officer erred by basing his decision on an erroneous finding of fact without regard to the material before him or by breaching the rules of natural justice. He submits that with respect to the applicant"s French language ability, the Visa Officer, without regard to the material before him, wrongly refused to award the applicant any units. Although the applicant on his application did not check-off his level of ability in French (the alternatives being fluently, well, with difficulty, not at all) he did state: "Passed primary course from Alliance Française Karachi in 1973-74". Applicant"s counsel says that this notation showed that the applicant had some ability with the French language and that had the Visa Officer considered this evidence, one or more points would have been awarded to the applicant and he would then have passed on to the interview stage. Alternatively, he submits the Visa Officer, because of this notation, should have interviewed the applicant to clarify the notation.

     In dealing with these arguments, Rothstein J. stated at 312:

Nor was there an obligation on the Visa Officer to call in the applicant for an interview to clarify the applicant"s reference to his capacity in French. Applicant"s counsel could not point to any provision of the Immigration Act , R.S.C. 1985, c. I-2, or regulations that placed such an obligation on the Visa Officer. Although counsel relied on the principles of natural justice, I cannot see how the Visa Officer breached any such principles. Essentially, what he argued is that when an applicant for permanent residence completes his application in an ambiguous manner, he must be called in to clarify it. If this were correct, applicants who completed their application ambiguously would have the benefit of a personal interview while those who completed them clearly, would not. Such a result would be anomalous to say the least. There was no breach of natural justice by the Visa Officer.

     I now return to the facts of this case. As I indicated earlier, counsel for the applicant argued that, in effect, the Visa Officer should have taken at face value his client"s assertion in her application form that she had been working as an advertising copywriter for Dynamo Trading since February 1994. Had the Visa Officer considered this work experience, she would necessarily have given the applicant two additional points. No doubt, in those circumstances, the applicant would have been called in for an interview.

     In response to Me Guay"s arguments that the applicant should have provided some evidence regarding what she did at Dynamo Trading, counsel for the applicant responded that his client was in a catch-22 situation. This response appears clearly from paragraphs 15, 16 and 17 of his memorandum which read:

15. That the Applicant is one of the owner/partner in Dynamo Trading (See Exhibit - F of the Affidavit of the Respondent).

16. That the Respondent must acknowledge that for the Applicant to write a letter of reference for herself and/or by her partners is absurd.

17. That one might speculate that if the Applicant had provided a letter of reference from Dynamo Trading, the Immigration officer would have probably refused to acknowledge it since she would have probably claimed that this evidence is self-serving.

     I cannot agree with this reasoning. Perhaps a letter of reference written by herself would not have been given serious consideration by the Visa Officer. However, nothing prevented the applicant from writing to the Visa Officer explaining exactly what she did at Dynamo Trading; in other words explaining to the Visa Officer why she had indicated in her application form that she worked as an advertising copywriter at Dynamo Trading. Further, nothing prevented the applicant from obtaining letters from some of the clients mentioned in her affidavit dated June 1996. In paragraphs 20 to 29 of her affidavit the applicant states:

20.      That from February 7, 1994 to the present I am the manager and co-owner of Dynamo Trading Limited.

21.      That I also am solely responsible for advertising the products that our business sells.

22.      That this work is the same as an Advertising Copywriter.

23.      That as the Advertising Copywriter my duties includes, but not limited to, composing written material for advertising in the Express and Guardian Newspapers in Trinidad.

24.      That the advertising material I prepare is also broadcast on the following Radio station: 106 FM Stereo.

25.      That the advertising material that I prepare is broadcast on Television.

26.      That the advertising material that I prepare is also distributed by flyers.

27.      That I also am responsible for preparing the advertising materials for the following Companies: Road Runner"s Record and Bar, J F K Auto Supplies; J E L Enterprises; Sapona Bed and Bath and Hide and Peek Leather Shop.

28.      The above mentioned companies in paragraph 27 belong to my friends.

29.      That I have voluntarily prepared advertising materials for these Companies.

     Surely, her clients and friends would have been quite willing to provide support to her contention that she worked as an advertising copywriter. However, the applicant did not provide any evidence whatsoever to the Visa Officer and, in those circumstances, I have not been persuaded that the Visa Officer made any reviewable error. On the evidence before her, it was open to the Visa Officer to conclude that the applicant had one year and four months work experience as an advertising copywriter. That conclusion, in my view, cannot be qualified as unreasonable.

     For these reasons, the application for judicial review shall be dismissed.

     "MARC NADON"

     Judge

Ottawa, Ontario

May 12, 1997.

     IMM-1969-96

OTTAWA, ONTARIO, this 12th day of May, 1997.

PRESENT: THE HONOURABLE MR. JUSTICE MARC NADON

B E T W E E N:

SAROJINI BANDOO

Applicant

- and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA

     Respondent

     ORDER

     This application for judicial review is dismissed.

                         "MARC NADON"

     Judge

__________________

¹ The applicant"s sister, a Canadian citizen, lives in Montreal.

² The Applicant"s husband has also filed an application for landing pursuant to subparagraph 9(1)(b)(i) of the Immigration Regulations.