Hussain v. Canada ( Minister of Citizenship and Immigration )
IMM-1702-97
Evans J.
22/10/98
20 pp.
Judicial review of visa officer's refusal to issue visa to applicant-On visa application form, applicant identifying intended occupation in Canada as "Executive Secretary"-Requirements therefor defined in Canadian Classification and Dictionary of Occupations (CCDO), category 4111-111-Visa officer assessing applicant as Secretary, defined in category 4111-110, and since awarding him only 67 units of assessment, three units short of 70 normally required for issue of visa to independent applicant, application refused-Three relevant differences between occupations: (1) lead statement in CCDO 4111-111 stating executive secretary preforming "secretarial and administrative duties for office executive", whereas CCDO 4111-110 not specifying person for whom secretarial services performed and in describing nature of work done by secretary referring to "clerical work and minor administrative and business details"; (2) executive secretary "researches and compiles information for employer" whereas secretary "types statistical reports"; (3) executive secretary "acts on routine matters affecting day-to-day operations of organization, in employer's absence", but nothing analogous in duties of secretary-Application allowed-No particular weight should be given to "lead statement"-Visa officer's "local knowledge" constituting extraneous factor relied upon in arriving at determination-No other evidence before her upon which could arrive at determination applicant's reporting to General Manager more indicative of applicant's years of service with company than of degree of responsibility-Moreover, applicant unaware visa officer relying in part on local knowledge in determining application for permanent residence in Canada-Fairness requiring visa officer disclose information to applicant so that had opportunity to respond to it-Visa officer's narrow view of description to CCDO 4111-111 of Executive Secretary as someone who, inter alia "acts on routine matters affecting day to day operation of organization, in employer's absence" also error-Inferring solely from applicant's statement not having authority to sign documents when General Manager absent, applicant not acting on routine matters in absence of employer-Signing one's own name to document only one indication of authority to act on routine matters-Visa officer should not have made it sole basis for conclusion-Visa officer's determination applicant's position of Executive Secretary to General Manager of Purchasing more likely result of years of service with employer than of degree of responsibility assumed by applicant, especially since applicant progressing through ranks to reach current position, bordering on clear preference for depth of experience over breadth-Prajapati v. Canada (Minister of Citizenship and Immigration) (1995), 31 Imm. L.R. (2d) 182 (F.C.T.D.) stating in somewhat similar circumstances such finding would "seem unfortunate"-Duty of fairness requiring officers to make such reasonable inquiries as will enable them to make careful assessment of application and, in some circumstances to inform applicant of negative views formed of application so that applicant may respond-Visa officer making sufficient inquiries to enable her to make careful assessment and to determine applicant merely "compiling" information, not conducting research-But inquiries about applicant acting on routine matters in employer's absence less thorough-Although visa officer stating "voiced concerns" to applicant, Court not satisfied sufficient to give applicant reasonable opportunity to clarify, expand on nature of duties in employer's absence-Breach of duty of procedural fairness-Finally, visa officer overlooked applicant's duties in connection with evaluation of job performance of employees-Practice of asking applicant at close of interview whether wishes to add anything not sufficient to satisfy duty to make reasonable inquiries imposed by duty of fairness-Practice fails to advise applicant of visa officer's concerns such as to provide applicant with reasonable opportunity to disabuse visa officer of particular concerns with application-Key issue whether applicant able to qualify under heading of Executive Secretary as opposed to Secretary-Determination very fact-specific, and clearly calling for more than general question to enable visa officer to make adequate assessment of information applicant providing-Such open-ended invitation at end of interview cannot correct visa officer's failure to ask sufficient questions or to disclose to applicant precise nature of concerns with application-Substantive, procedural errors committed by visa officer cumulatively sufficient to vitiate refusal to issue visa to applicant-As whether applicant satisfying particular occupational classification determined by reading description as whole, considering occupational experience as whole, not helpful for Court to pronounce applicant satisfying certain elements of description, withdraw them from visa officer's determination-Parliament entrusting to visa officers, not courts, duty to determine visa applications-No evidence supporting suggestion because refusal set aside, another visa officer unlikely to discharge professional duty to make fair assessment of application-Matter remitted to another visa officer.