T-720-88
Thakorlal Hajariwala (Applicant)
v.
Minister of Employment and Immigration and
Secretary of State for External Affairs (Respond-
ents)
INDEXED AS: HAJARIWALA v. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Trial Division, Jerome A.C.J.—Toronto, July 11,
12 and September 8; Gttawa, November 9, 1988.
Immigration — Permanent residence denied as no units of
assessment awarded for experience in occupation to be fol
lowed and alternative occupations not considered on basis
experience could not be fragmented — Duties of visa officer
where claim including qualification and experience in more
than one occupation — Must assess experience and time spent
in various responsibilities in occupation and award units of
assessment for experience acquired in alternative occupations
— Failure to make assessment error of law — Fairness
requirements — What record should show.
Judicial review — Prerogative writs — Applicant seeking
certiorari, quashing refusal of request for permanent residence
and mandamus requiring reconsideration of application —
Whether law and fairness required visa officer to assess appli
cant's claim of qualification and experience in more than one
occupation — Officer's failure to assess various responsibili
ties into separate components to award units of assessment for
experience in intended occupations error of law — What
record should disclose.
The applicant seeks orders quashing the respondents' deci
sion refusing his request for permanent residence and for a writ
of mandamus directing that the application be reconsidered in
accordance with the relevant legislation and regulations. The
question is as to what is required of the visa officer as a matter
of law and as a matter of fairness in cases where the applicant
claims both qualification and experience in more than one
occupation.
Held, the application should be allowed.
The visa officer has an obligation to assess alternate occupa
tions inherent in work experience when such experience is
brought forward by the applicant.
The Regulations require that the applicant's experience be
assessed with regard to his intended occupation. However, it is
possible to break down the actual experience and time spent in
each of the various responsibilities in an occupation in order to
award units of assessment for experience in intended occupa
tions. The visa officer's failure to continue the assessment, due
to a misinterpretation of the legislation, was an error of law and
a breach of the duty of fairness.
In order to satisfy fairness requirements, the record should
disclose, that the applicant was given an opportunity to provide
information in support of his current experience in each includ
ed occupation. Furthermore, the visa officer should give reasons
for assigning or not assigning a specific experience rating to
included occupations.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 6(1).
Immigration Regulations, 1978, SOR/78-l72, ss. 8(1)(a)
(as am. by SOR/85-l038, s. 3), 8(2), 9(1) (as am. by
SOR/83-675, s. 3; SOR/85-1038, s. 4; SOR/88-l27, s.
3), 11(1) (as am. by SOR/79-167, s. 4).
AUTHORS CITED
Canada. Canadian Classification and Dictionary of
Occupations. Ottawa: Department of Employment and
Immigration, 1971-1977.
COUNSEL:
Cecil L. Rotenberg, Q.C. and Diane C. Smith
for applicant.
Charleen H. Brenzall for respondents.
SOLICITORS:
Rotenberg & Martinello, Toronto, for appli
cant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This case was heard together
with T-625-88, T-719-88, T-1133-88, T-1157-88
and T-1158-88. These matters came on for hearing
in Toronto, Ontario, on July 11 and 12, 1988 and
on September 8, 1988. The applications are all for
orders by way of certiorari quashing the decision
of the respondents refusing the applicants' request
for permanent residence in Canada and for a writ
of mandamus directing that:
(1) the respondents consider and process the
applicants' request for permanent residence in
Canada in accordance with the Immigration
Act, 1976 [S.C. 1976-77, c. 52] and Immigra
tion Regulations, 1978 [SOR/78-172];
(2) the respondents determine in accordance
with the law, whether it would be contrary to
the said Immigration Act 1976 and Immigra
tion Regulations, 1978 to grant landing to the
applicants.
The initial applications in these cases were made
in different locations, and they call into question
assessments made by a number of visa officers.
However, all parties are represented by the same
counsel, and with the cooperation of counsel for
the respondents, they have been dealt with as a
group since they involve a common issue, that of
the included occupation. In more formal terms, the
question to be decided here is, what is required of
the visa officer as a matter of law under the Act
and Regulations, and as a matter of fairness in
cases where the applicant claims both qualification
and experience in more than one occupation?
Each applicant has applied for permanent resi
dence in Canada as an independent candidate
pursuant to subsection 6(1) of the Immigration
Act, 1976. Such applications involve a two-stage
assessment process during which it is the visa
officer's duty to apply criteria set forth in the
legislation and award points based on the ability of
the applicant to become successfully established in
Canada. The criteria for successful establishment
include age, education, occupational demand and
experience, language and personal suitability. The
first phase of the assessment is a paper screening
process in which immigration officials evaluate
documents submitted by applicants and decide if
the application process should be continued. If the
applicant passes this phase, he is invited to an
interview with a visa officer. Obviously, one of the
most significant factors in any assessment is the
applicant's possibility of employment in Canada.
Points are therefore awarded both for occupational
demand in the paper screening step, and for
experience in the final assessment. The process
also requires recourse to the Canadian Classifica
tion and Dictionary of Occupations (CCDO), a
seven volume manual which classifies and
describes thousands of occupations. Assessment of
any one intended occupation begins with a match
ing of the applicant's work routine with a specific
occupation from the CCDO.
Before dealing with the specifics of this case,
some general comments are appropriate. Above
all, it is important to bear in mind that Parlia
ment's intention in enacting the Immigration Act,
1976 is to define Canada's immigration policy
both to Canadians and to those who wish to come
here from abroad. Such a policy cannot exist
without complex regulations, a good many of
which appear to be restrictive in nature, but the
policy should always by interpreted in positive
terms. The purpose of the statute is to permit
immigration, not prevent it. It follows that appli
cants have the right to frame their application in a
way that maximizes their chances for entry. It is
the corresponding obligation of immigration offi
cers to provide a thorough and fair assessment,
and to provide adequate reasons for refusals when
they occur.
As a further expression of general principle, it is
useful to refer to the affidavit filed on behalf of the
respondent of John Lynn Baker, Director Immi
gration and Refugee Affairs Division, External
Affairs Canada. The affidavit consists of twenty-
five paragraphs and provides a complete descrip-
tion of the process at issue here, including the
qualifications and responsibilities of the visa offi
cers abroad. I quote paragraph 15:
15. Alternate occupations will also be considered by the offi
cers where there is the possibility that the applicant is
qualified for and prepared to follow that occupation.
I take this to be a very important expression of
fundamental fairness to the applicant. Counsel for
the applicant asks me to find that it imposes upon
the visa officer the obligation to assess alternate
occupations inherent in the applicant's work
experience, whether the applicant puts them for
ward or not. I am not prepared to go that far, but I
do find that it puts beyond question the responsi
bility of the visa officer to do so where, as here, the
applicant seeks it by designating alternate occupa
tions in the application.
It is also important to emphasize that the Immi
gration Act, 1976 in section 6 requires that those
seeking landing in Canada must satisfy an immi
gration officer that they meet the selection stand
ards set out in the Immigration Regulations, 1978.
It is clearly, therefore, the responsibility of the
applicant to produce all relevant information
which may assist his application. The extent to
which immigration officers may wish to offer
assistance, counselling or advice may be a matter
of individual preference or even a matter of
departmental policy from time to time, but it is not
an obligation that is imposed upon the officers by
the Act or the Regulations.
As a final general statement, it is useful to
underline the limitations of review under section
18 of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10]. This is not an appellate review. To
succeed the applicant must do more than establish
the possibility that I might have reached a differ
ent conclusion than the visa officer in this assess
ment. There must be either an error of law appar-
ent on the face of the record, or a breach of the
duty of fairness appropriate to this essentially
administrative assessment.
Turning now to this case, the facts are not in
dispute and are contained in the affidavits of the
applicant, Thakorlal Hajariwala, the Director of
Immigration and Refugee Affairs Division of
External Affairs, John Baker, the Justice Liaison
Officer, Aphrodite Zografos and one of the appli
cant's solicitors, Anita Sulley.
The applicant is from India and was a tempo
rary resident of New Jersey. On November 2,
1987, he applied to the Canadian Consulate Gen
eral of Canada in New York for permanent resi
dence in Canada, and stated that he was the
Manager-Owner of a Garment Manufacturing and
Sales Company in India. He indicated that he
intended to pursue the occupation of Purchasing
Officer—Materials or Sales Representative in
Canada.
On December 16, 1987, the applicant attended
at an interview with an immigration officer where
he was questioned about the partnership of the
business in India with his father and brother. The
applicant indicated it was a textile business which
involved the purchase of raw material and ready-
made garments, and the sale to retailers of gar
ments, both manufactured and ready-made. The
officer asked about the applicant's main duties and
was informed that he was involved in purchasing,
selling, supervising employees, and accounting. In
response to further questions, the officer was told
there were seven to nine employees, all tailors.
Finally, the officer asked how much material the
applicant purchased on behalf of the business and
he indicated approximately 400,000 rupees worth
of material annually. No further questions about
the business or the applicant's duties or experience
were posed by the officer.
By letter dated December 17, 1987, the appli
cant was informed that his application for perma
nent residence in Canada was refused:
After a careful and thorough review of your application, I
regret to inform you that your request for entry as an immi
grant to Canada has been refused since you have not been
awarded any units of assessment for experience in the occupa
tion you intend to follow in Canada.
According to your application for permanent residence in
Canada, your employment experience has been as "Manager/
Owner of a Garment Manufacturing & Sales Company".
During your interview on 16 December 1987, you stated that
your responsibilities are: (1) purchasing materials, (2) taking
orders from clients, (3) selling your goods, (4) supervising your
employees, and (5) keeping the accounts. In my view your
experience corresponds to the definition (see attached) in the
Canadian Classification and Dictionary of Occupations
(CCDO) for a Supervisor, Wholesale Establishment, CCDO
5130-122. 1 do not believe that your various responsibilities can
be broken down into separate components for the purposes of
awarding you units of assessment for experience in your alter
native intended occupations, i.e. either Material Purchasing
Officer or Garments Sales Representative. I am, therefore,
unable to issue an immigrant visa to you pursuant to the
previously mentioned subsection 1 1(1) of the Regulations.
The applicant here seeks judicial review of that
decision. The relevant statutory provisions are
paragraph 8(1)(a) [as am. by SOR/85-1038, s. 3]
and subsections 8(2), 9(1) [as am. by SOR/83-
675, s. 3; SOR/85-1038, s. 4; SOR/88-127, s. 3],
and 11(1) [as am. by SOR/79-167, s. 4] of the
Immigration Regulations, 1978:
8. (1) For the purpose of determining whether an immigrant
and his dependants, other than a member of the family class or
a Convention refugee seeking resettlement, will be able to
become successfully established in Canada, a visa officer shall
assess that immigrant or, at the option of the immigrant, the
spouse of that immigrant,
(a) in the case of an immigrant, other than an immigrant
described in paragraph (b), (c) or (e), on the basis of each of
the factors listed in column 1 of Schedule I;
(2) A visa officer shall award to an immigrant who is
assessed on the basis of factors listed in column I of Schedule I
the appropriate number of units of assessment for each factor
in accordance with the criteria set out in column II thereof
opposite that factor, but he shall not award for any factor more
units of assessment than the maximum number set out in
column Ill thereof opposite that factor.
9. (1) Where an immigrant, other than a member of the
family class, an assisted relative, a Convention refugee seeking
resettlement or an investor, makes an application for a visa, a
visa officer may, subject to section 11, issue an immigrant visa
to him and his accompanying dependants, if
(a) he and his dependants, whether accompanying depen
dants or not, are not members of any inadmissible class and
otherwise meet the requirements of the Act and these Regu
lations; and
(b) on the basis of his assessment in accordance with
section 8
(i) in the case of an immigrant other than a retired person
or an entrepreneur, he is awarded at least 70 units of
assessment, or
(ii) in the case of an entrepreneur, he is awarded at least
25 units of assessment.
11. (1) Subject to subsections (3) and (4), a visa officer
shall not issue an immigrant visa pursuant to section 9 or 10 to
an immigrant who is assessed on the basis of factors listed in
column I of Schedule I and is not awarded any units of
assessment for the factor set out in item 3 thereof unless the
immigrant
(a) has arranged employment in Canada and has a written
statement from the proposed employer verifying that he is
willing to employ an inexperienced person in the position in
which the person is to be employed, and the visa officer is
satisfied that the person can perform the work required
without experience; or
(b) is qualified for and is prepared to engage in employment
in a designated occupation.
I conclude that the visa officer's failure to con
tinue the assessment was a result of his interpreta
tion that the legislation did not permit him to do
so. As the officer stated in the letter received by
the applicant:
1 do not believe that your various responsibilities can be broken
down into separate components for the purposes of awarding
you units of assessment for experience in your alternative
intended occupation ....
Such an interpretation is a clear error of law. The
Regulations permit the applicant to be assessed in
"an occupation". The factors listed in column I of
Schedule I require that the experience of the appli
cant be assessed with regard to his intended occu
pation. There is no reason why the actual experi
ence and time spent in each of the various
responsibilities in an occupation cannot be broken
down to award units of assessment for experience
in intended occupations. Paragraph 15 of the
Baker affidavit, which I quoted previously, makes
this quite clear.
I should also add that as 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 occupa
tion. The record must equally indicate reasons
which support the visa officer's assignment of a
specific experience rating to the included occupa
tions or reasons which support the refusal to do so.
Obviously, having erroneously concluded that no
assessment need be done, the visa officer in this
case failed in this aspect of the duty of fairness.
Accordingly, the application will succeed. Since
here the visa officer has both breached a duty of
fairness and committed an error of law, his deci
sion is set aside. The respondents are directed to
carry out the assessment in accordance with the
Immigration Act, 1976 and Immigration Regula
tions, 1978 in a manner consistent with the inter
pretation placed upon them in these reasons for
order. As indicated from the bench, I did not deal
with the claim related to assisted relatives as I
assume that this matter can now be put forward
during the reconsideration. The applicant will be
entitled to his costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.