T-433-90
Perpetual D'Souza (Applicant)
v.
Minister of Employment and Immigration and the
Secretary of State for External Affairs (Respond-
ents)
INDEXED AS: D'SOUZA V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (T.D.)
Trial Division, MacKay J.—Toronto, June 25;
Ottawa, November 19, 1990.
Immigration — Practice — Application for permanent resi
dence, accompanied by offer of permanent employment,
refused — Visa officer not awarding points for arranged
employment absent advice from National Employment Service
— Prospective employer declining to initiate administrative
process established to obtain advice — Issue is whether
administrative procedure inconsistent with, not whether
authorized by, Act and Regulations — No express or implied
duty on visa officer to consult with National Employment
Service — Onus on applicant to demonstrate admission cri
teria met — Onus not shifting to visa officer once information
provided about prospective job — Insistence on following
departmental administrative procedures neither delegation of
decision-making authority to National Employment Service,
nor improper fettering of discretion — Although procedures
not specifically authorized by Regulations, neither in conflict
nor inconsistent therewith — In advising visa officers regard
ing arranged employment admissions, National Employment
Service to consider only factors in Regulations, item 5,
Schedule I.
This was an application to quash the refusal of an application
for permanent residence and for mandamus requiring consider
ation of the application in accordance with the Act and Regula
tions. The permanent residence application had been accom
panied by an offer of permanent employment as a secretary
with a law firm, which briefly described working conditions and
benefits and the firm's previous efforts to fill the position. The
applicant was awarded 54 units of assessment following the
selection criteria in Schedule I of the Immigration Regulations,
1978. Seventy units are normally required for admission to
Canada. Out of a possible ten, no unit for arranged employ
ment was awarded by the visa officer because he had not
received advice from the National Employment Service. If ten
units had been awarded for arranged employment, the appli
cant would probably have been invited to a personal suitability
interview for which up to ten additional units could have been
awarded. The failure to award the applicant any units of
assessment for arranged employment was the effective cause of
the denial of the application. The visa officer had followed the
procedure outlined in the Employment Manual, an internal
administrative document which requires the prospective
employer to contact a local Canada Employment Centre and to
complete a form 2151 relating to the job offered. Acting as the
National Employment Service, CEIC certifies that the
arranged employment will not adversely affect the employment
opportunities of Canadian citizens or permanent residents and
communicates this advice to the visa officer. The applicant
argued that this procedure did not conform to the requirements
of the Act and Regulations. It was submitted that the Regula
tions imposed a duty on the visa officer to assess the informa
tion submitted by an applicant and if advice is required from
the National Employment Service the visa officer should seek it
directly on his own initiative. Secondly, the applicant submitted
that, in refusing to consider arranged employment until receipt
of advice from the National Employment Service, the visa
officer delegated decision-making authority to the Service.
Finally, the applicant submitted that the system instituted by
CEIC wrongfully deprived applicants of the opportunity of
demonstrating the likelihood of becoming successfully estab
lished in Canada within the framework put in place by the Act
and Regulations. The National Employment Service deals only
with the prospective employer, not applicants, and it considers
the offer for prospective employment with a "Canada First
component" requiring priority in employment for Canadians
and permanent residents, a matter unrelated to the prospects of
successful establishment in Canada by a prospective immigrant.
The Immigration Act, subsections 8(1) and 9(3) requires a
proposed immigrant to show that admission would not be
contrary to the Act or Regulations and to provide documenta
tion required for this purpose. Paragraph 114(1)(a) authorizes
the Governor in Council to make regulations providing for the
establishment of selection standards based on numerous factors,
including labour market conditions in Canada, to determine
whether an immigrant will be able to become successfully
established here. Regulations, subsection 8(1) require a visa
officer, for the purpose of determining whether the applicant
will be able to become successfully established in Canada, to
assess the immigrant on the basis of each of the factors listed in
column I of Schedule I, and to award units of assessment in
accordance with criteria set out in column II to the maximum
number set out in column III. Schedule I, item 5 provides that
ten units shall be awarded if the person has arranged employ
ment certified by the National Employment Service. The
respondents submitted that to be awarded units of assessment
for arranged employment, an applicant must provide a job offer
that meets the requirements of section 20 of the Regulations.
Held, the application should be dismissed.
The principle upon which the administrative procedures must
be assessed is whether they are inconsistent with the Act and
Regulations, not whether they were authorized thereby.
Based on the Act, subsections 8(1) and 9(3), and the applica
tion process as a whole, there is no express or implied duty
imposed on a visa officer by the Act or Regulations to consult
directly with the National Employment Service on his own
initiative. The applicant must demonstrate to the satisfaction of
the visa officer that the criteria for admission to Canada have
been met, including that "arranged employment" has been
secured. Although the Regulations are silent as to the convey
ing of this advice of the National Employment Service, in view
of the statutory burden an applicant bears, it is not unreason
able, unfair, or contrary to law to require the applicant and his
prospective employer to commence the process to obtain the
required advice. The onus does not shift to the visa officer once
information is furnished about the job offered. The applicant
must satisfy all of the requirements of the Act and Regulations.
There was no unlawful delegation of authority. The ultimate
discretion to award ten units for arranged employment con
tinued to be vested in the visa officer. In failing to award units
for arranged employment without information from the Na
tional Employment Service, the visa officer did what he was
required to do in accord with item 5 of Schedule I. Insistence
on following departmental administrative procedures for initiat
ing steps to obtain that information was not delegating deci-
sion-making authority to the National Employment Service.
Nor was it an improper fettering of the discretion vested in the
visa officer. Although the procedures to obtain the information
are not specifically authorized by the Regulations, they are
neither in conflict with nor inconsistent with them.
The general administrative process instituted by CEIC for
considering arranged employment is not inconsistent with the
Act or Regulations, in view of the authority of the Governor in
Council under paragraph 114(1)(a) and the selection criteria
established by Schedule I. The requirement that a prospective
employer provide information to a local CEC office is within
paragraph 114(1)(a) of the Act. That the process must be
initiated by the prospective employer, and to that extent the
furnishing of required documentation is beyond the complete
control of the applicant, is neither in conflict, nor inconsistent,
with the Regulations. Moreover, there are other criteria within
Schedule I in respect of which consideration and units assessed
depend upon factors and information beyond the complete
control of an applicant. As to the detailed factors to be
considered by the National Employment Service in relation to
arranged employment, only those in item 5, Schedule I, of the
Regulations may properly be considered. Generally, the factors
considered by the National Employment Service appear to go
beyond the list in item 5 of Schedule I. They are closer to the
list of factors for considering authorization of a temporary
foreign worker already in Canada, than to the more limited list
of factors to be considered to advise immigration officers
whether the entry of a foreign worker will adversely affect
employment of Canadians. Both lists reflect factors to be
considered in accord with section 20 of the Regulations, con
cerning the issue of an employment authorization, to persons
other than Canadian citizens or permanent residents in Canada
who have a right to work. Section 20 is not relevant to the case
at bar. The National Employment Service must have scrupu
lous regard to the limited range of factors to be considered
under item 5 of Schedule I in informing visa officers regarding
arranged employment admissions.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Immigration Act, R.S.C., 1985, c. I-2, ss. 6(1), 8(1),
9(3), 114(1)(a).
Immigration Regulations, 1978, SOR/78-172, ss.
8(1)(a)(2), 9(1)(a) (as am. by SOR/83-675, s.
3),(b)(i) (as am. by SOR/83-675, s. 3; 85-1038, s. 4),
11(2),(3) (as am. by SOR/81-461, s. 1), 18(1), 20 (as
am. by SOR/80-2l, s. 7; 84-849, s. 2), Schedule I.
Unemployment Insurance Act, R.S.C., 1985, c. U-1,
s. 120.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Hui v. Canada (Minister of Employment and Immigra
tion), [1986] 2 F.C. 96; (1986), 18 Admin. L.R. 264; 65
N.R. 69 (C.A.); Muliadi v. Canada (Minister of
Employment and Immigration), [1986] 2 F.C. 205;
(1986), 18 Admin. L.R. 243; 66 N.R. 8 (C.A.); Canada
(Minister of Employment and Immigration) v. Ho,
A-187-89, Mahoney J.A., judgment dated 22/5/90,
F.C.A., not yet reported.
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.
Marilyn Doering for respondents.
SOLICITORS:
Rotenberg, Martinello, Austin, Don Mills,
Ontario for applicant.
Deputy Attorney General of Canada, Ottawa,
for respondents.
The following are the reasons for order ren
dered in English by
MACKAY J.: The applicant seeks certiorari and
mandamus pursuant to section 18 of the Federal
Court Act, R.S.C., 1985, c. F-7, alleging that the
respondents refused to process her application for
permanent residence in Canada in accord with the
Immigration Act, R.S.C., 1985, c. I-2 as amended,
and the Immigration Regulations, 1978, SOR/78-
172 as amended.
Certiorari is sought to quash the decision of a
visa officer on staff of the respondent Secretary of
State for External Affairs, at the Canadian Consu
late General in New York, whereby he refused the
application for permanent residence. Mandamus is
sought to direct the respondents to consider and
process the application in accord with the Act and
Regulations and to determine whether or not it
would be contrary to those statutory provisions to
grant landing as a permanent resident to the appli
cant, Perpetual D'Souza.
The issue here raised concerns the procedure
followed by the visa officer in considering, among
the criteria for assessing the applicant, arranged
employment in Canada.
Ms. D'Souza, a citizen of India, applied for
permanent residence status in Canada, as an
independent immigrant, at the Consulate General
in New York. Her application was submitted
under cover of a letter sent by her prospective
employer, the firm of Rotenberg & Martinello,
barristers and solicitors of Willowdale, Ontario,
which also represents the applicant in these pro
ceedings. The covering letter noted Ms. D'Souza's
occupation as Executive Secretary as described in
the Canadian Classification and Dictionary of
Occupations, classification 4111-111. It referred to
another letter from the law firm, enclosed with the
application, asking that letter to be noted as a
permanent job offer to join the staff of the firm in
a secretarial position, and it referred briefly to the
work week, vacation and benefit plans for staff,
with wages and working conditions considered
competitive in offices generally. The covering
letter also noted continual advertising by the firm
for secretaries, its inability at that time to fill its
needs, and its perception that the applicant's abili
ties would be uniquely beneficial in service for
clients from India. The covering letter also includ
ed the following paragraphs:
I would ask you to note that the Legislative contemplation of
the Regulations is that you consult with Manpower and not
require me to obtain a 2151. This is in line with a system which
is interested in selection as an immigrant and the applicant's
abilities and not my abilities to pass a Manpower test.
Since my office has had two 2151's in the past, both of whom
worked for my office for some considerable time, I do not think
the legitimacy or bona fides of this offer is of any doubt. Again,
if you would look at the Legislation carefully, you will see that
the obligation is on your part to consult with the National
Employment Service as to wages and working conditions, etc.
The application was considered by the visa offi
cer on the basis of the information it contained
without a personal interview of the applicant, i.e.,
the stage known in the administrative process as
"paper screening". Then the applicant was advised
by letter that a barrier to acceptance of her
application was the fact that there was only a
limited demand in Canada for persons in her
occupation. This difficulty might be overcome if
she were able to arrange employment in Canada in
her occupation and, without assurance of ultimate
approval at that stage, whoever might act on her
behalf need only contact the local Canada
Employment Centre [CEC] for advice about the
procedure to be followed. In the meantime her
application was refused.
The application had been assessed, in the "paper
screening", following selection criteria in Schedule
I of the Immigration Regulations, 1978, and a
total of 54 units of assessment had been awarded.
Under subparagraph 9(1)(b)(î) [as am. by SOR/
83-675, s. 3; 85-1038, s. 4] of the Regulations a
total of 70 units is required, aside from cases
where discretion may be exercised, with approval,
for good reason in accord with subsection 11(3)
[as am. by SOR/81-461, s. 1]. No units, of a total
of ten to be awarded, had been awarded by the
visa officer for arranged employment. If the 10
units directed to be awarded for arranged employ
ment had been awarded, in all probability the
applicant here would have been invited to a per
sonal suitability interview for which up to ten
additional units could have been awarded. Thus
the failure to award any units for arranged
employment could be viewed as the effective cause
of the refusal of the application, and indeed this
was recognized by the respondents.
Following the letter of refusal there was an
exchange of correspondence between the appli
cant's solicitor (her prospective employer) and the
Consulate General in New York. The gist of this
exchange was that the solicitor urged that the visa
officer in New York was required under the Act
and Regulations to determine the matter of
arranged employment and if advice were required
from the Canada Employment Centre to obtain
that advice directly by his own enquiry. The immi
gration officer in New York declined to do this
and a letter from the Consulate General stated, in
part:
I agree that the decision to accept or reject an offer of
employment under item 5 of Schedule I of the Immigration
Regulations is the responsibility of the visa officer, and is based
on information supplied by the National Employment Service.
However, the regulations are silent concerning who should
initiate the action. By establishing the 2151 system, the CEIC
has concluded that the most efficient procedure to ensure that
foreign workers do not displace Canadian citizens and landed
immigrants, and that offers of employment conform to Canadi-
an labour and monetary standards is to have the process started
in Canada by the Canadian employer.
Whether you decide to follow the certification procedure
used by the Commission, or not, is your decision. However,
until the Consulate is informed by the CEIC that your offer of
employment to your client meets the requirements outlined in
item 5 of the selection criteria, this office will not credit Ms.
D'Souza with ten units for prearranged employment.
The procedure insisted upon by immigration
officers is an extra-regulatory process outlined in
an Employment Manual, an internal administra
tive document of the Canadian Employment and
Immigration Commission (CEIC). It requires the
prospective employer of a foreign worker to con
tact a local Canada Employment Centre and to
complete a form, called a form 2151, relating to
the job offered. Acting in its capacity as the
National Employment Service pursuant to section
120 of the Unemployment Insurance Act, R.S.C.,
1985, c. U-1, CEIC considers the matter and if, in
the opinion of the employment officer concerned
the arranged employment, under the terms
outlined by the prospective employer, will not
adversely affect the opportunities for Canadian
citizens or permanent residents in Canada he so
certifies by signing the form and this advice is
communicated by the signed form to the visa
officer.
In this application for certiorari and mandamus
it is submitted on behalf of the applicant that the
procedure here required does not conform to the
requirements of the Act and Regulations. Argu
ments in support of that submission were essential
ly three.
1. The Regulations impose a duty on the visa
officer to assess the information submitted by or
on behalf of an applicant; if advice is required
from the National Employment Service it
should be sought directly by the visa officer, and
there was no reason to refuse the applicant
without an interview as to personal suitability
and without awarding points for arranged
employment.
2. In refusing to consider, or to award points
for, arranged employment until receipt of advice
from the National Employment Service by the
procedures implemented by CEIC for its conve
nience, the visa officer was effectively delegating
decision-making authority to the National
Employment Service, and in insisting on depart
mental procedures was acceding to advice or
policy of the CEIC not authorized by the
Regulations.
3. The Immigration Act and Regulations,
including the assessment criteria, establish a
framework to enable an applicant to demon
strate the likelihood of becoming successfully
established in Canada. The system instituted by
CEIC wrongfully deprives the applicant of
demonstrating this, since the National Employ
ment Service does not deal with the applicant
but only with the prospective employer, and it
considers the offer for prospective employment
with a "Canada First component" requiring pri
ority in employment for Canadians and perma
nent residents, a matter unrelated to the pros
pects of successful establishment in Canada by a
prospective immigrant.
Several provisions of the Act and the Regula
tions are relied upon by the parties. Subsection
6(1) of the Act provides that an independent
immigrant may be granted landing if the intended
immigrant is able to establish to the satisfaction of
an immigration officer that she or he meets the
selection standards established by the Regulations
for the purpose of determining whether or not an
immigrant will be able to become successfully
established in Canada. A person seeking to come
into Canada has the burden of proving that she or
he has a right to come into Canada or that admis
sion would not be contrary to the Act or Regula
tions (subsection 8(1)). Every person shall answer
truthfully all questions asked by a visa officer and
shall produce documentation that may be required
by the visa officer for the purpose of establishing
that his or her admission would not be contrary to
the Act or Regulations (subsection 9(3)). Para
graph 114(1)(a) vests authority in the Governor in
Council to make regulations
114. (1) ...
(a) providing for the establishment and application of selec
tion standards based on such factors as family relationships,
education, language, skill, occupational experience and other
personal attributes and attainments, together with demo
graphic considerations and labour market conditions in
Canada, for the purpose of determining whether or not an
immigrant will be able to become successfully established in
Canada;
Under the Immigration Regulations, 1978, in
the case of an independent applicant for perma
nent residence, a visa officer, for the purpose of
determining whether the applicant will be able to
become successfully established in Canada, shall
assess the immigrant on the basis of each of the
factors listed in column I of Schedule I (subsection
8(1) [as am. by SOR/85-1038, s. 3]), and the visa
officer shall award to an immigrant assessed under
that Schedule I, in accordance with criteria set out
in column II of the Schedule, units of assessment
to the maximum number set out in column III of
the Schedule (subsection 8(2)). Under paragraphs
9(1)(a) [as am. by SOR/83-675, s. 3] and (b) of
the Regulations a visa officer may issue a visa to
an applicant in the independent class, who is ad
missible and meets other requirements of the Act
and Regulations, if the applicant is awarded at
least 70 units of assessment under Schedule I, but
a visa shall not issue unless the applicant has been
awarded at least one unit of assessment for the
factor "Occupational Demand" under Schedule I,
the immigrant has arranged employment in
Canada or is prepared to engage in employment in
a designated occupation (subsection 11(2)).
The Regulations also include in Schedule I the
following entry in relation to item 5, for arranged
employment:
Ten units shall be awarded if, in the opinion of the visa officer,
(a) the person has arranged employment in Canada that, based
on the information provided by the National Employment
Service, offers reasonable prospects of continuity and
wages and working conditions sufficient to attract and
retain in employment Canadian citizens and permanent
residents,
(b) based on information provided by the National Employ
ment Service, employment of the person in Canada will not
adversely affect employment opportunities for Canadian
citizens or permanent residents in Canada, and
(c) the person will likely be able to meet all federal, provincial
and other applicable licensing and regulatory requirements
related to the employment, or
For the record I note that in the original memo
randum of fact and law submitted by counsel for
the applicant reference was made and argument
directed to subsection 18(1) [as am. by SOR/89-
80, s. 1] and section 20 [as am. by SOR/80-21, s.
7; 84-849, s. 2] of the Regulations. This was
responded to in the memorandum of fact and law
of the respondents. Argument referring to these
sections was apparently abandoned by counsel for
the applicant in a supplementary memorandum of
fact and law and no direct reference was made to
these sections in oral argument on behalf of the
applicant. For the respondents it was pointed out
that subsection 18(1) was not relevant since it
applies to visitors to Canada and refers to tempo
rary foreign workers in Canada. While section 20,
concerning the issue of an employment authoriza
tion, appears, in my view, to be similarly con
cerned with visitors or others already in Canada,
the argument of counsel for the respondents relies
in part upon that section which in some respects is
parallel in the conditions it stipulates to those set
out in relation to item 5 of Schedule I of the
Regulations. Moreover, it appears that section
may underlie departmental procedures outlined in
affidavit evidence on behalf of the respondents and
it may assist in understanding their position to
reproduce portions of that section, which are as
follows:
20. (1) An immigration officer shall not issue an employ
ment authorization to a person if,
(a) in his opinion, employment of the person in Canada will
adversely affect employment opportunities for Canadian citi
zens or permanent residents in Canada; or
(b) the issue of the employment authorization will affect
(i) the settlement of any labour dispute that is in progress
at the place or intended place of employment, or
(ii) the employment of any person who is involved in such
a dispute.
(3) In order to form an opinion for the purposes of para
graph (1)(a), an immigration officer shall consider
(a) whether the prospective employer has made reasonable
efforts to hire or train Canadian citizens or permanent
residents for the employment with respect to which an
employment authorization is sought;
(b) the qualifications and experience of the applicant for the
employment for which the employment authorization is
sought; and
(c) whether the wages and working conditions offered are
sufficient to attract and retain in employment Canadian
citizens or permanent residents.
(4) Where an immigration officer considers the questions set
out in paragraphs (3)(a) and (c), he shall take into consider
ation the opinion of an officer of the office of the National
Employment Service serving the area in which the person
seeking an employment authorization wishes to engage in
employment.
In response to the applicant's motion the
respondents adduced affidavit evidence of David
Greenhill, Manager, Foreign Worker Policy and
Programs, in the Labour Market Services Branch
at CEIC National Headquarters. His affidavit
describes the procedures of CEIC in the following
way:
5. The visa officer advised the Applicant that, although her
application was refused at the present time, it could be recon
sidered if she were able to demonstrate an offer of arranged
employment in Canada that complied with the above conditions
[i.e., conditions set out in paragraph 4 which reproduced the
conditions of item 5 of Schedule I of the Regulations].
6. Attached hereto and marked as Ex. "B" to this my affidavit
is the Employment Manual, Chapter 17 dealing with Foreign
Worker Recruitment.
7. The role of the National Employment Service (CEC) is to
assist employers in Canada through human resource planning
to determine and meet their labour market needs and to
identify CEIC programs and services that would meet these
needs. If qualified Canadian citizens or permanent residents are
not available and training is not a viable option, the National
Employment Service (CEC) may recommend the use of tempo-
rary foreign workers or the admission of qualified applicants
for permanent residence.
8. The National Employment Service (CEC) in responding to
requests from employers in Canada to validate an offer of
employment for temporary foreign workers or prospective
immigrants will first satisfy itself as to:
I) efforts made by the employer to hire or train Canadians;
2) the suitability of wages and working conditions offered;
3) the benefits of foreign worker recruitment;
4) the absence of any labour dispute, and
5) the bona fides of the job offer.
9. Attached hereto and marked as Ex. "C" to this my affidavit,
is a copy of Form 2151 which is a Confirmation of Offer of
Employment, to be completed by the employer, giving particu
lars of the offer of employment and the foreign worker to whom
employment is offered.
10. An employer who submits such a form 2151 to a CEC
initiates the process of an employment counsellor assisting him
in filling such a position with a Canadian citizen or permanent
resident worker, if one is available. If one is not available, and
the other criteria are met, the employment counsellor will
certify at the bottom of Form 2151 that such an offer of
employment to a foreign worker does not adversely affect
employment opportunities for Canadian citizens or permanent
residents.
11. The issuance of an employment validation by the National
Employment Service in response to requests from employers in
Canada for such consideration will be provided by the National
Employment Service (CEC) to the visa officer to assist in his
forming an opinion for the purpose of paragraph 20(1)(a) of
the Immigration Regulations pursuant to direction provided in
forming such an opinion as outlined in Immigration Regula
tions 20(3) and (4).
12. In accordance with Item 5 of Schedule I of the Immigra
tion Regulations, 10 units of assessment for arranged employ
ment shall be awarded if, in the opinion of the visa officer, the
requirements of this provision as stated above in paragraph 5
are met.
On the basis of that affidavit, the Act and
Regulations, the respondents, in reply to the sub
missions of the applicant, submit that the Regula
tions must be read in light of the requirements of
subsections 8(1) and 9(3) of the Act, which put
the onus on a person seeking to come to Canada of
showing that admission would not be contrary to
the Act or Regulations, and to provide documenta
tion required for this purpose. In the respondents'
submission, if the applicant is to be awarded units
of assessment for arranged employment she must
provide "a job offer from a Canada Employment
Centre, that meets the requirements of section 20
of the Regulations". Further, it is urged there is no
requirement under the Act or Regulations for "a
visa officer to solicit information of job suitability
from the office of the National Employment Ser
vice on behalf of an applicant nor is it possible for
a visa officer to form an opinion as required by
section 20(3) of the Regulations without the co
operation of the prospective employer". "The
employer must meet certain conditions such as
establishing competitive working conditions and
wages, and establishing he's made reasonable
efforts to hire Canadian citizens or permanent
residents before the CEC will certify the Form
2151" (respondents' memorandum of fact and law,
paragraphs 19-25).
The procedures described in the affidavit of
David Greenhill and upon which argument on
behalf of the respondents is structured, at least in
part, are essentially those set out in the Employ
ment Manual, a document setting out administra
tive policy, objectives and procedures concerning
employment services of CEIC. Not dealt with in
the affidavit but also included in the portion of the
Manual attached as an exhibit to Greenhill's
affidavit are the following provisions concerning
"workers recruited by third parties", provisions
which I assume were here considered applicable:
17.07 2) CEIC will not accept job orders or "specific named
worker" requests from any third party which would
require admittance to Canada of foreign workers,
either as temporary foreign workers or immigrants,
except for requests to fill bona fide vacancies on the
permanent staff of the third party, and who are not to
be re-referred to client employers. (See Chapter 36,
paragraph 36.22 of the Employment Manual.)
3) If such requests are received from third parties, either
in Canada or at overseas posts, the third party is to be
clearly informed of CEIC's policy in this regard and
requested to advise their employer-client to contact
the CEIC directly.
The principle upon which the applicant's sub
missions are based is essentially that the adminis
trative procedures of the Employment Manual are
not authorized by the Immigration Act and Regu
lations. In my view the principle upon which the
procedures must be assessed is whether they are
inconsistent with that Act and Regulations. In so
far as such internal directives are not inconsistent
with the Act or the Regulations there can be no
serious objection to them. If there is inconsistency
with the Act or Regulations, or if they establish
procedures which fetter discretion vested by law,
i.e., the Act and Regulations, then the latter must
prevail.
The first argument of the applicant turns on the
determination of which branch of the Minister's
responsibilities, immigration or employment, must
take the initiative in arranging advice from the
National Employment Service in assessing
arranged employment. Counsel for the applicant,
reading the language in section 8 of the Regula
tions, particularly the phrase, "a visa officer shall
assess that immigrant ... on the basis of each of
the factors listed in column I of Schedule I"
[underlining added] and the phrase, in column II
of Schedule I (reproduced above), It] en units
shall be awarded" [underlining added], argues
that a statutory duty rests with the visa officer to
make the determination. The fact that in order to
do so, the visa officer requires advice from the
National Employment Service, imposes, it is
urged, a correlative duty to obtain that advice.
Because statutory and regulatory provisions must
override internally-developed departmental policy,
the visa officer is not entitled to rely on internal
administrative policy to evade his or her duties
under the statute.
The Minister, in response, argues that the duty
of the visa officer to assess an applicant is to be
considered in light of subsections 8(1) and 9(3) of
the Immigration Act, which put the burden of
proving that "admission would not be contrary to
this Act or the regulations" on the applicant [sub-
section 8(1)], and require that "[E]very person .. .
shall produce such documentation as may be
required by the visa officer for the purpose of
establishing that his admission would not be con
trary to this Act or the regulations" [subsection
9(3)]. These provisions, it is argued, authorize a
visa officer to refuse to award points for "arranged
employment" until the applicant complies with a
request by the visa officer to have submitted on
her behalf, by action initiated by the prospective
employer, a form approving, by the National
Employment Service, of the employment offered.
It is argued that there is no duty placed upon the
visa officer to consult directly with the National
Employment Service on his own initiative.
The Act or Regulations do not specifically
impose any such duty. I am also of the view that
there is no requirement arising by implication that
the visa officer consult on his own initiative with
the National Employment Service. I base this
finding on subsections 8(1) and 9(3) of the Act,
and also on the application process as a whole.
That is, the applicant must demonstrate to the
satisfaction of the visa officer, who has been en
trusted to decide, that the criteria for admission to
Canada have been met. Thus, as in the case of
other criteria, the applicant must satisfy the visa
officer that "arranged employment" is secured.
That requires, according to the Regulations,
advice of the National Employment Service. While
the Regulations are silent on the procedure by
which that advice is to be conveyed, the underlying
pattern that proof is to be established by the
applicant, the statutory burden which the appli
cant bears in subsections 8(1) and 9(3), leads me
to the conclusion that it is not unreasonable,
unfair, or contrary to law to require the step of
setting the wheels in motion for obtaining the
required advice to be taken by the applicant and
the applicant's prospective employer.
I do not accept the argument by counsel for the
applicant that having furnished information about
the job offered, the onus shifts to the visa officer.
The statutory burden of proof cannot be displaced
by such information even of the quality provided
by the applicant herein. The applicant must satisfy
all the requirements of the Act and Regulations,
including those factors required to be established
which are not directly within her personal power to
control. She will require the assistance of her
employer to do so, it is true, and this may mean, in
some instances, that a prospective immigrant may
be refused because of failure by the employer to
meet procedural requirements instituted by the
Minister.
Counsel for the applicant relies upon Hui v.
Canada (Minister of Employment and Immigra
tion), [1986] 2 F.C. 96 (C.A.) for the general
proposition that only the Act and Regulations have
the force of law and the visa officer was not
entitled to rely on departmental administrative
procedures that do not have the force of law. In
Hui the visa officer concerned was found to have
based his decision at least in part on statements of
the Minister which introduced a factor or criterion
not included in the Regulations concerning assess
ment of a prospective immigrant seeking admis
sion to Canada in the entrepreneur class. The
principle that one vested with decision-making re
sponsibility must exercise his duty within the
bounds and for reasons prescribed by law does not,
in my view, assist in this case. Here the visa officer
did not make his decision to refuse the applicant
on the basis of any factor or for any reason not
within the Regulations. Following departmental
procedures, as he did, could only be an error on his
part if those procedures were in conflict or incon
sistent with the Act and Regulations.
So long as the procedures developed and fol
lowed by the Commission to fulfill its responsibili
ties in relation to immigration matters are not
inconsistent with the requirements of the Act and
Regulations there can be no objection in law to
them. The Minister must have discretion to de
velop administrative procedures to meet her or his
statutory and regulatory responsibilities. This
Court should intervene to limit that discretion only
where it is clear that the procedures are inconsist
ent with, or otherwise beyond the authority of the
Minister under, the Act and Regulations.
In this case the visa officer, whose responsibility
it is to evaluate the applicant on the basis of
information provided in an application, is required,
in relation to the criterion "Arranged Employ
ment" (item 5, Schedule I), to take into account
information provided by the National Employment
Service concerning two matters: in relation to the
job, that it offers reasonable prospects of continui
ty and wages and working conditions sufficient to
attract and retain in employment Canadian citi
zens or permanent residents in Canada, and in
relation to the immigration applicant that her or
his employment in Canada will not adversely
affect employment of Canadian citizens or perma
nent residents in Canada. In this case no informa
tion was received from the National Employment
Service about the proposed employment when the
prospective employer declined to initiate the pro
cess established under CEIC administrative poli
cies to lead to the provision of the necessary
information to the visa officer.
With respect to the second argument, the appli
cant states that in withholding the grant of the visa
until arranged employment authorization had been
communicated from the National Employment
Service, the visa officer was improperly delegating
his or her authority in respect of the matter. It is
said that the decision to grant or refuse the visa
hinged upon the response received from the Na
tional Employment Service, and thus it is the
official from the National Employment Service
who is making the decision. The argument is made
with respect to both the grant of the visa (under
section 8 of the Regulations) and the employment
authorization (required by Item 5 of Schedule I of
the Regulations).
In support of this argument, counsel for the
applicant relies upon Muliadi v. Canada (Minister
of Employment and Immigration), [1986] 2 F.C.
205 (C.A.). In that case, an application for perma
nent residence made under the entrepreneurial
category was rejected, largely as a result of defici
encies in a proposed business plan. On reconsidera
tion of the application, during a personal inter
view, the visa officer conducting that interview
made it clear that the application was denied
because of a negative assessment by an official of
the Province of Ontario. The Federal Court of
Appeal unanimously allowed relief sought by the
applicant, on three grounds, including unlawful
delegation by the visa officer, in whom the decision
is vested by the Act and Regulations, to the
Ontario government official. Stone J.A. (for a
unanimous Court) stated (at page 218), with
respect to improper delegation:
It is elementary that the decision on the application had to be
made by the visa officer and that it could not be delegated in
the above fashion. The visa officer appears to have allowed it to
be made by the person in Ontario from whom he received
information regarding the viability of the appellant's business
plan. Though he was entitled to receive information on that
subject from that source it remained his duty to decide the
matter in accordance with the Act and the Regulations. It was
therefore a serious error to allow the decision to be made by the
Ontario official rather than kept in his own hands where it
properly belonged.
The principle of Muliadi is an important one,
but in my view it has no direct application here.
Under paragraph 114(1)(a) of the Act the Gover
nor in Council may make regulations "providing
for the establishment and application of selection
standards based on such factors as ... together
with demographic considerations and labour
market conditions in Canada, for the purpose of
determining whether or not an immigrant will be
able to become successfully established in Cana-
da". Clearly the Regulations here in question, in
particular item 5 in Schedule I, are enacted within
the scope of paragraph 114(1)(a), and they pro
vide for the visa officer assessing an application for
permanent residence in Canada, which includes
reference to arranged employment, to consider
that criterion for admission based on information
provided by the National Employment Service in
respect of the job offered and in respect of the
employment of the applicant in Canada not
adversely affecting employment of Canadian citi
zens or permanent residents in Canada. I note that
the latter requirement is concerned, not merely
with general advice about the effects of employ
ment of the applicant on employment of others,
but rather it must be precise information that this
will not adversely affect employment opportunities
of Canadian citizens or permanent residents in
Canada.
If this determination of particular aspects of
employing the applicant is considered to be delega
tion to the National Employment Service, then it
seems to me that delegation is clearly made by the
Regulations, and is authorized; it is not made by
the visa officer. Moreover, the ultimate discretion
to award 10 units for arranged employment con
tinues to be vested in the visa officer. Note that
under item 5 of Schedule I he or she must also
assess the likelihood that the applicant will be able
to meet applicable licensing and regulatory
requirements related to the employment offered.
But, as worded, it would not be a proper exercise
of the visa officer's discretion to award points for
arranged employment until the information
required by item 5 of Schedule I from the Nation
al Employment Service is available. The Regula
tions and the facts of concern in this case differ
from those in Muliadi.
Reference was also made on behalf of the appli
cant to Canada (Minister of Employment and
Immigration) v. Ho, (not yet reported, F.C.A.,
Court File No. A-187-89) where a visa officer's
initial decision in assessing units under Schedule I
was changed on advice from head office. Mahoney
J.A. for the Court of Appeal, upholding the grant
of certiorari, said [at page 1]:
A visa officer cannot properly take account of general direc
tives not having the force of law nor instructions from head
office particular to the case at hand. Those improperly fetter
him in the exercise of the discretion that Parliament, not the
Canada Employment and Immigration Commission, has en
trusted to him.
In my view, there was no unlawful delegation of
authority by the visa officer in this case. Nor was
there any acceding to advice from head office (or
adhering to general directives) particular to the
case at hand. In failing to award units for
arranged employment, without information from
the National Employment Service, the visa officer
did what he was required to do in accord with item
5 of Schedule I. Insistence on following depart
mental administrative procedures for initiating
steps to obtain that information was not, in my
view, delegating decision-making authority to the
National Employment Service. Nor was it improp
er fettering of discretion vested in the visa officer.
While those procedures for initial steps to obtain
the information are not specifically authorized by
the Regulations, they are not, as I have already
indicated, in conflict or inconsistent with the
Regulations.
I turn to the final argument raised by the appli
cant, that the administrative system instituted by
CEIC for considering arranged employment
wrongfully deprives an applicant for immigration
from demonstrating the likelihood of becoming
successfully established in Canada. On the evi
dence before me I believe this submission has two
aspects to be considered.
The first aspect concerns the process in general.
In view of the authority of the Governor General
in Council under paragraph 114(1)(a) of the Act,
and the Regulations enacted thereunder, and in
particular the assessment criteria established by
Schedule I to the Regulations, the general process,
in my view, is not inconsistent with the Act and
Regulations. It is true that to be awarded ten units
of assessment for arranged employment, the appli
cant must follow a process requiring a prospective
employer to provide information to a local CEC
office which may validate the arranged employ
ment by certification of the opinion of an employ
ment officer that employment of the applicant
immigrant on the arrangements offered will not
adversely affect the employment opportunities for
Canadian citizens or permanent residents in
Canada. That requirement falls clearly within
paragraph 114(1)(a) of the Act as a matter within
"labour market conditions in Canada, for the pur
pose of determining whether or not an immigrant
will be able to become successfully established in
Canada". The fact that the process must be ini
tiated by the prospective employer in accord with
CEIC administrative procedures, and to that
extent the furnishing of required documentation is
beyond the complete control of the applicant, as I
have indicated, does not conflict, nor is it inconsist
ent, with the Regulations. Moreover, there are
other criteria within Schedule I for which con
sideration, and units assessed depend upon factors
and information not within the complete control of
the applicant, for example item 4, "Occupational
Demand", "determined by taking into account
labour market demand on both an area and na
tional basis", item 6 [as am. by SOR/85-1038, s.
8], "Demographic Factor", "determined by the
Minister after consultation with the provinces"
and others.
The second aspect of this submission of the
applicant raises the question of the detailed factors
to be assessed by an employment officer in provid
ing his certified opinion that, if such be his opin
ion, the employment of the applicant will not
adversely affect the employment opportunities of
Canadian citizens and permanent residents. Coun
sel for the applicant points to a "Canada First"
policy and in cross-examination of Greenhill on his
affidavit alluded to administrative rules of the
National Employment Service which created dif
ficulties, in his view, for prospective employers.
In a strict sense, since the process of initiating
the consideration by an employment officer was
not undertaken in this case, there are no clear cut
facts upon which to consider in detail the factors
to be considered. Nevertheless, since the evidence
before me is somewhat confusing I propose to
comment upon the factors that, in my view, may
be properly considered in light of the Act and
Regulations, in relation to item 5 in Schedule I,
"Arranged Employment. That provision includes
three factors to be considered by a visa officer,
including two, admittedly general factors, to be
considered on the basis of information provided by
the National Employment Service. It should be
clear that those are the only factors to be con
sidered, perhaps aside from an unspecified but
implicit factor, that the employment offered be
bona fide.
In the affidavit of David Greenhill describing
the process followed by the National Employment
Service, paragraph 8 refers to the factors given
consideration. That list seems to me to go beyond
the more limited list in item 5 of Schedule I. In
fact, Greenhill's list appears to reflect most closely
a list of factors set out in the Employment Manual
for considering authorization for a temporary for
eign worker (Manual, section 17.03, 2)c)), rather
than a more limited list provided in the same
manual (Manual, section 17.10, 3)) of factors to
be considered "[t]o advise immigration officers
whether the entry of a foreign worker will adverse
ly affect employment and career opportunities for
Canadians". Both lists seem to reflect factors to be
considered in accord with section 20 of the Regu
lations, concerning the issue of an employment
authorization, to persons other than Canadian citi
zens or permanent residents in Canada who have a
right to work. That section is not relevant at all, in
my view, to the case at hand, yet the respondents
argue as if it is applicable. It may be, as, the
affidavit and cross-examination of Greenhill seem
to indicate, that CEIC follows the same process for
considering authorization of arranged employment
for an applicant immigrant seeking permanent
residence status, and for considering an employ
ment authorization for a person already in Canada
on a temporary basis. In any event, subsection
20(3) sets out factors to be considered in forming
an opinion for the purpose of paragraph (1)(a)
(i.e., paragraph 20(1)(a)) and these include "(a)
whether the prospective employer has made
reasonable efforts to hire or train Canadian citi
zens or permanent residents for the employment".
This introduces, more precisely than item 5 of
Schedule I, a "Canada First component", by
implication at least, so that available Canadian
citizens or permanent residents are first offered
any job opportunities before authorization is given
for employment of a foreign worker. While that
may be a worthwhile objective of the National
Employment Service, in my view, it is not, particu
larly as it refers to training, clearly within the
factors to be considered in relation to item 5 of
Schedule I. I do not think it appropriate, in light of
item 5 of Schedule I, to insist that the prospective
employer of an applicant/immigrant should first be
expected to train persons already in Canada before
authorization is given to arranged employment.
Nor, in my view, would it be appropriate to insist
in practice upon any standard minimum period for
a prospective employer to seek, unsuccessfully, an
employee through the CEC services before con
cluding that he had made reasonable efforts to hire
Canadian citizens or permanent residents. Rather,
the employment officer must be prepared to look
at whatever evidence the prospective employer
may have of his efforts to hire Canadian citizens
or permanent residents.
Thus, in the detail of factors to be considered by
the National Employment Service in considering
matters within item 5 of Schedule I of the Regula
tions, the Service must be careful to consider only
those matters which can be justified as being
clearly within the factors set out in the Schedule. I
infer that this is recognized by CEIC, and the
respondent Minister, from the Employment
Manual, section 17.10, 3) which includes a rela
tively brief list of examples of current labour
market information to be considered in advising
immigration officers whether the entry of a foreign
worker will adversely affect employment [and
career] opportunities for Canadians, and, I
assume, permanent residents.
Conclusion
I conclude that the visa officer fulfilled his duty
in this case in assessing the application of Ms.
D'Souza on the basis of the information contained
in the application and accompanying it. There was
no implied duty on the visa officer to request
information directly, on his own initiative, from
the National Employment Service about the appli
cant's reported arranged employment. The visa
officer was entitled to rely on departmental proce
dures which are not in conflict or inconsistent with
the Immigration Act and Regulations. In my view,
there was no wrongful delegation of discretion by
the visa officer under the departmental procedures,
nor was the visa officer's discretion wrongly fet
tered by those procedures. Finally, it is my view
that the National Employment Service (CEC)
must have scrupulous regard to the limited range
of factors to be considered under item 5 of
Schedule I of the Immigration Regulations, 1978
in providing information to a visa officer about
arranged employment for an applicant seeking
admission to Canada as a permanent resident.
For the reasons thus set out, this application is
dismissed and an order will go to that effect. Costs
are awarded to the respondents.
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.