T-1560-90
Joachim Pinto (Applicant)
v.
Minister of Employment and Immigration and
Secretary of State for External Affairs (Respond-
ents)
INDEXED AS: PINTO V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (T.D.)
Trial Division, MacKay J.—Toronto, September
11; Ottawa, November 27, 1990.
Immigration — Admission to Canada under Foreign
Domestic Movement (FDM) Program denied despite CEC
validation of employment offer — Standards of assessment
imposed by visa officer not required by Immigration Regula
tions — Assessment relating only to defined classifications
failure to assess experience relevant to employment offered —
Visa officer guided strictly by Immigration Manual relating to
FDM criteria — Reliance upon requirement for formal train
ing or full-time employment in relation to each aspect of
employment instead of assessing skills relevant to employment
offered — Rigid and undue notion of specialization — Error
in law — Court not acting as appellate tribunal but reviewing
visa officer's decision — Certiorari granted, application to be
reconsidered.
Judicial review — Prerogative writs — Certiorari quashing
decision by visa officer and refusal by Minister to issue visa
with employment authorization, and mandamus ordering
application reassessed according to law — Reliance by visa
officer on Immigration Manual error of law in so far as it
misinterprets law — Visa officer improperly fettering discre
tion — Must consider qualifications and experience of appli
cant for "employment for which the employment authorization
is sought".
This was a section 18 application for certiorari to quash the
decision of a visa officer in New Delhi and the Minister's
refusal to issue a visa with an employment authorization to the
applicant's cousin; the applicant also sought mandamus in
order to have the visa application reassessed according to law.
Applicant and his wife operate a busy supermarket and gas
station at Peterborough, Ontario. Their household includes a
child and the wife's elderly parents who have medical problems
and speak only Konkani. Having unsuccessfully advertised for
domestic help in a Toronto newspaper, the applicant offered his
cousin, Ms. Quadros, a citizen of India, employment as a live-in
domestic worker under the Foreign Domestic Movement
(FDM) Program. Despite validation of the employment offer
by the Canada Employment Centre at Peterborough, a visa
officer in Madras, India, refused Ms. Quadros' application on
the ground that she did not meet the FDM criteria. After three
unsuccessful attempts, the applicant consulted a lawyer who
wrote to the Minister, seeking a Minister's permit and to the
Canadian High Commission in New Delhi, seeking reconsider
ation of its refusal to grant an employment authorization. Both
requests were denied.
The applicant submitted that the visa officer erred in law in
assessing Ms. Quadros' application to enter Canada as a tem
porary worker by imposing standards of assessment not
required by the Immigration Regulations and that he improper
ly fettered his discretion by relying upon the guidelines con
tained in the Immigration Manual, to the exclusion of other
relevant considerations. It was also argued that the visa officer
failed in his duty of fairness towards Ms. Quadros. The reasons
for refusing her application were that she did not meet the
criteria for selection, that she did not have relevant experience
because her profession was teacher rather than housekeeper or
child care worker and that the employment offer was not bona
fide, but was rather a means of allowing her to obtain a visa,
despite CEC validation of the employment offer.
Held, the application should be allowed.
The visa officer assessing Ms. Quadros' application had the
obligation to consider the employment offer as one outlined by
the employer and with reference to the unique circumstances
set out by the CEC officer at Peterborough. Paragraph
20(3)(b) of the Immigration Regulations requires the visa
officer to consider "the qualifications and experience of the
applicant for the employment for which the employment
authorization is sought". The visa officer took into consider
ation various factors that had nothing to do with assessing Ms.
Quadros' qualifications for the position offered: the fact that
the applicant sought to employ a particular person for some two
and a half years; the fact that she did not know the ages of the
elderly couple or whether they had any special care needs; the
belief that her application was motivated by a desire to settle in
Canada to obtain greater opportunities for her daughter and
the fact that she had no idea what she might do in Canada
three or four years from now if she were no longer required by
the employer. All those matters were irrelevant in deciding
whether her employment in Canada would adversely affect
employment opportunities for Canadian citizens or permanent
residents of Canada.
Rather than recognizing that the qualifications possessed by
the applicant, Ms. Quadros, had to be assessed in view of the
requirements of the employment offer, the visa officer had been
guided strictly by the requirements in the Immigration Manual
relating to the FDM criteria. Although a teacher is not a child
care worker, to the extent that the skills required of a teacher
are similar to those required of a child care worker, some credit
must be given for "experience" with these skills. Reliance, by
the visa officer, upon the Manual constitutes an error of law in
so far as it misinterprets the law. A visa officer may issue an
employment authorization when he is satisfied, inter alia, that
the applicant is qualified for the employment offered. The visa
officer here did improperly fetter his discretion and his conclu-
sion that Ms. Quadros did not possess any significant experi
ence related to the qualifications and experience required under
paragraph 20(3)(b) of the Regulations was patently unreason
able. An unreasonable exercise of a tribunal's discretion consti
tutes jurisdictional error: Slaight Communications Inc. v.
Davidson, [1989] 1 S.C.R. 1038. The other factors referred to
in relation to the consideration of the bona fides of the employ
ment offered were irrelevant to the decision of the visa officer
and to have considered them was an error of law.
The Court herein is not acting as an appellate tribunal, but
simply reviewing the decision made by the visa officer; it has no
authority to substitute its decision for that of the visa officer.
Accordingly, the visa officer's decision should be quashed and
the application reconsidered in accordance with the Act and
Regulations.
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. 8(1), 9(3),
114(1)(a),(j) (as am. by R.S.C., 1985 (4th Supp.),
c. 28, s. 29).
Immigration Regulations, 1978, SOR/78-172, s. 18(1)
(as am. by SOR/89-80, s. 1), s. 20 (as am. by SOR/80-
21, s. 7; SOR/84-849, s. 2).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Slaight Communications Inc. v. Davidson, [1989] 1
S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L.
85; 89 CLLC 14,031; 93 N.R. 183.
APPLIED:
Hajariwala v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 79; (1988), 34 Admin. L.R.
206; 23 F.T.R. 241; 6 Imm. L.R. (2d) 222 (T.D.).
DISTINGUISHED:
Fung v. Minister of Employment and Immigration
(1989), 27 F.T.R. 182 (F.C.T.D.); Wang (L.) v. Minister
of Employment and Immigration (1988), 23 F.T.R. 257;
7 Imm. L.R. (2d) 130 (F.C.T.D.); Yu v. Canada (Minis-
ter of Employment and Immigration), T-1550-90,
F.C.T.D., MacKay J., judgment dated 10/8/90, not
reported.
AUTHORS CITED
Canada. Canadian Classification and Dictionary of
Occupations. Ottawa: Department of Employment and
Immigration, 1971-1977.
COUNSEL:
Barbara L. Jackman for applicant.
Claire A. Le Riche for respondents.
SOLICITORS:
Jackman, Silcoff, Zambelli, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
MACKAY J.: This is an application under sec
tion 18 of the Federal Court Act, R.S.C., 1985, c.
F-7, seeking an order of certiorari to quash a
decision by a visa officer at the Canadian High
Commission in New Delhi, said to be made June
12 and December 18, both in 1989, and the deci
sion of the Minister of Employment and Immigra
tion of December 14, 1989, refusing to issue a visa
with an employment authorization to Ms. Renny
Quadros. Had the visa been issued Ms. Quadros
would have been enabled to come to Canada to
accept employment offered by the applicant
herein, Joachim Pinto, which employment had
been approved by authorization of an employment
officer of the Canada Employment Centre (CEC)
at Peterborough, Ontario. The applicant also seeks
mandamus to order that the application be reas
sessed according to law.
It is clear from exhibits filed with the affidavit
of the applicant Pinto that the visa officer's deci
sion giving rise to these proceedings was made in
June 1989 and communicated to the CEC at Pet-
erborough by telex sent June 18 or 19 and noted as
"In 20 June 89" by staff at that CEC. The other
"decisions" referred to in the motion by dates in
December, of both the visa officer and the Minis
ter, are not separate decisions, except in so far as
they respectively declined to reconsider the June
1989 decision of the visa officer. They do not, in
my opinion, constitute separate decisions subject to
judicial review for they each consist of descriptive
reviews or explanations related to the June 1989,
or earlier, decisions of the visa officer. It is suffi
cient for disposition of this application to consider
only the decision of June 1989 as of concern for
the relief sought.
Background
Ms. Renny Quadros, a citizen of India and the
cousin of the applicant Pinto, had been offered
employment as a live-in domestic worker by the
applicant, who sought to arrange her admission to
Canada on a temporary basis under the "FDM
Program" for admission of foreign domestic work
ers, arranged under the responsibilities of the
respondent Minister of Employment and Immigra
tion. In his affidavit, sworn February 8, 1990,
Pinto outlines a series of events leading to this
application to the court.
The applicant owns and operates, with much
assistance from his wife, a supermarket and gas
station in Peterborough. The businesses are suc
cessful, employing more than 30 staff, and they
require substantial commitment of time and effort
by both the applicant and his wife. Their
household includes three others, their eleven-year-
old daughter, and the wife's parents who are elder
ly, with medical conditions requiring care and
attention, and who speak only Konkani, their
mother tongue.
In light of their business and domestic respon
sibilities, the applicant and his wife decided in
1986 that they would seek domestic help. They
travelled to India in the fall of that year and
following that visit they decided to offer employ
ment to Ms. Quadros, after seeing her at a large
family gathering. The evidence, particularly Pin
to's affidavit, a letter he wrote to the visa officer in
November 1987, and subsequent correspondence
of Pinto's, are contradictory as to whether Ms.
Quadros met with or was interviewed by Pinto or
any of his family during their trip to India. After
later denial by Ms. Quadros that they had then
met, Pinto confirmed that she was correct, though
he and his wife had "observed her" at a family
gathering. Surprisingly his representations, one of
which was clearly wrong, were apparently taken
later by the visa officer in New Delhi as a basis for
questioning Ms. Quadros' credibility. Upon return-
ing to Canada, and after advertising unsuccessful
ly in a Toronto newspaper for domestic help, the
applicant secured a validation of employment offer
from the Canada Employment Centre in Peterbor-
ough to offer employment to Ms. Quadros as a
live-in domestic worker.
The validation authorized employment for
twelve months, and it was forwarded to the
Canadian High Commission in New Delhi. A visa
officer interviewed Ms. Quadros on May 21, 1987
in Madras, India. Her application was refused. By
telex dated 28 May 87 the decision was com
municated to CEC Peterborough, as follows:
SUBJ INTERVIEWED 21MAY87 IN MADRAS FOR EMPLOY AUTH
UNDER FDM AND REFUSED. SUBJ HAS NO/NO INDEPENDENT
WORK EXPERIENCE AS A DOMESTIC, AND HAS NEVER/NEVER
WORKED OUTSIDE HER OWN HOME. SUBJ HAS NO/NO TEACH
ING EXPERIENCE. SHE HAS LITTLE KNOWLEDGE OF HER
EMPLOYMENT OR WORKING CONDITIONS IN CANADA. SUBJ
REFUSED AS NOT/NOT MEETING FDM CRITERIA.
At Pinto's request a CEC officer in Peterbor-
ough sought clarification of the reasons for refusal,
indicating Ms. Quadros was a qualified teacher,
currently engaged in teaching, who had run her
own household for 20 years, and asking what
might be done to reassess her application. The
High Commission in New Delhi responded,
expanding reasons given in its first telex but con
cluding there was no ground warranting favour
able reconsideration.
The applicant persisted in his efforts to employ
Ms. Quadros. In September 1987 he wrote to the
"Canadian Embassy" in New Delhi outlining his
continuing interest in employing her and her
anticipated duties, and explaining that her earlier
response about her teaching qualifications and
experience had been the result of fear on her part
that if her government employers learned of her
interest in other employment she might lose her
current job, and her livelihood if the prospective
job with Pinto did not materialize. He enclosed a
letter from the family physician of the elderly
couple which expressed support for employment in
the home of a person from India who could speak
Konkani and provide many hours of home care
each day.
At about the same time, the applicant obtained
from CEC Peterborough a second authorization
validating his offer of employment to Ms. Quad-
ros, again for a period of 12 months as a tempo
rary worker, a live-in housekeeper. Officials in the
Immigration Section in New Delhi sought to dis
courage her from seeking a second interview but
one was arranged at her request after a further
letter addressed to the High Commission in New
Delhi by the applicant Pinto. Following that inter
view Ms. Quadros' application was again refused
and she was advised by letter that she did not meet
the requirements of the Canadian Immigration
Act [R.S.C., 1985, c. I-2] and regulations. That
decision was explained in a telex of March 2, 1988
to CEC Peterborough, as follows:
(QUADROS) RENNY DOB 28AUG47
INTERVIEWED SUBJ 22FEB IN BMBAY. SUBJ NOW PROVIDED
EVIDENCE THAT SHE HAS BEEN A PUBLIC SCHOOL TEACHER
FOR THE PAST 16 YRS. STATES, SHE DID NOT/NOT TELL US
THIS THE FIRST TIME OWING TO FEAR OF LOSING POSITION.
SHE IS A WIDOW WITH A 17 YR OLD DTR LIVING IN SAME
HOUSEHOLD WITH BROTHER, SISTER AND MOTHER. SHE IS A
COUSIN OF ER. SHE HAS HAD NO/NO OUTSIDE EXPERIENCE AS
A DOMESTIC, NANNY OR SENIOR CITIZENS CARE WORKERS.
SHE DID NOT/NOT KNOW THE AGES OF ERS IN-LAWS OR IF
THEY HAVE ANY SPECIAL CARE NEEDS. SHE CLEARLY DENIED
MTG THEM IN INDIA SAYING SHE ONLY SAW THEM IN 1971
AT ERS WEDDING. THIS IS IN CONTRADICTION OF ERS ASSER
TION THAT THE IN-LAWS INTERVIEWED HER IN OCT86. WHEN
ASKED WHAT SHE MIGHT DO IN CDA THREE OR FOUR YRS
FROM NOW IF NO/NO LONGER REQUIRED BY ER, SHE HAD
NO/NO IDEA WHAT SHE WOULD DO. SUBJ LACKS RELEVANT
EXPERIENCE IN EITHER CHILD OR ELDERLY PERSONS CARE.
WITHIN HER OWN HOUSEHOLD, SISTER AND MOTHER HAVE
MAINTAINED HOME DURING THE DAY WHILE SHE CARRIED
ON HER TEACHING CAREER. BELIEVE APPLN MOTIVATED BY
EVENTUAL DESIRE TO SETTLE HERSELF ANDDTR IN CDA FOR
GREATER OPPORTUNITIES FOR THE LATER WHOM SHE REITE
RATED DURING THE INTERVIEW IS)A-VERY HLLIANT STU
DENT. SUBJ FAILS CURRENT CRITERIA AS SET OUT IN IS
15.61(3). AS SHE FAILED TO DEMONSTRATE MOTIVATION,
RESOURCEFULNESS OR INITIATIVE ABOUT ANY FUTURE ABIL-
ITY TO SETTLE SUCCESSFULLY IN CDA, SHE ALSO DOES NOT/
NOT MEET EARLIER FDM CRITERIA. THIS DECISION IS FINAL.
The applicant persisted. He contacted his
Member of Parliament, who wrote a letter on his
behalf to the Minister of State for Immigration. A
copy of the response of the Minister of Employ
ment and Immigration to that Member, filed with
applicant's affidavit, includes the following para
graphs:
Visa officials in New Delhi advise me that they interviewed
Mrs. Quadros on February 22, 1988, and that she did provide
evidence that she has been a teacher for the past sixteen years.
She did not tell visa officials of this experience the first time
because she was fearful of losing her position. Notwithstanding
this experience, Mrs. Quadros has no outside experience as a
domestic, a nanny or a senior citizen care worker. She did not
know the ages of Mr. Pinto's parents-in-law nor if they had any
special care needs. When asked about meeting these people, she
clearly denied meeting them in October 1986, although your
constituents state that she was interviewed by the parents-in-
law at that time. The only time Mrs. Quadros met them was at
your constituents' wedding in 1971.
According to visa officials, Mrs. Quadros is a widow with a
seventeen-year-old daughter. When questioned about her future
plans in Canada, if your constituents no longer needed her, she
could not demonstrate any motivation, resourcefulness or initia
tive nor any future ability to settle successfully in Canada. For
these reasons, coupled with the fact that Mrs. Quadros failed to
meet the criteria of the Foreign Domestic Movement program
at an earlier interview, I find that I must concur with the visa
officials' decision to refuse Mrs. Quadros' application.
Thereafter, Pinto obtained a third validation of
employment offer. This validation was forwarded
to the Canadian High Commission in New Delhi.
The Canada Employment Centre officer also sent
a covering letter, stating, in part, that the employ
er has a "unique circumstance in relation to the
need for a foreign domestic worker". He then
itemized the nature of the "unique circumstance",
essentially that Ms. Quadros was known and trust
ed by the wife's parents and spoke their language;
she had qualifications as a teacher enabling her to
assist the daughter with homework and to enforce
the customs of her Indian heritage; and she was
trusted by the family, an important factor with
money from the businesses kept in the home from
time to time. Ms. Quadros was again interviewed,
and her application was again refused. This time a
telex to CEC Peterborough, sent June 18 or 19,
1989, set out the reasons for the decision, as
follows:
SUBJ IS 1102 APP AS FDM DESTINED TO ER (PINTO) JOACHIM.
THIS IS THIRD TIME SINCE DEC86 SUBJ HAS BEEN ASSESSED
AS FDM. EACH TIME SHE HAS BEEN REFUSED. REASONS FOR
REFUSAL CLEARLY OUTLINED IN OURTEL TO YOU NBR
WBIM79O8 OF 02MAR88. NOTHING HAS CHANGED THIS END
OTHER THAN SUBJ HAS COMPLETED ONE MONTH COURSE IN
BEAUTY, HEALTH AND COOKING. ER HAS BEEN TRYING TO
HAVE SUBJ FOR OVER 2' YEARS. IF NEED FOR DOMESTIC AS
CRITICAL AS THEY WISH US TO BELIEVE DIFFICULT TO
UNDERSTAND WHY THEY PERSIST IN SPONSORING SUBJ
RATHER THAN SOMEONE QUALIFIED AS DOMESTIC/HISTORY
IN APP OF MISINFORMATION PROVIDED BY BOTH ER AND
SUBJ. BELIEVE AS STATED IN EARLIER TEL OFFER OF DOMES
TIC POSITION SIMPLY INTENDED TO FACILITATE ENTRY OF
SUBJ AND CHILD TO CDA. DO NOT/NOT BELIEVE APP MEETS
FDM REQUIREMENTS-NO/NO FULL TIME DOMESTIC EXPERI
ENCE, LIMITED QUALI IN ENGLISH. HAVE ONCE AGAIN
REFUSED.
The applicant then obtained legal counsel. His
solicitor wrote to the Minister of Employment and
Immigration, seeking a minister's permit, and
wrote to the Canadian High Commission in New
Delhi, seeking a reconsideration of its refusal to
grant an employment authorization. As noted ear
lier, neither request was granted; by letters from
both in December 1989 the refusal to grant a visa
was merely reviewed.
The Law and Policy Applicable
The law applicable in this matter is found in the
Immigration Act, R.S.C., 1985, c. I-2 and the
Immigration Regulations, 1978, SOR/78-172, as
amended. Relevant provisions of the Act include
the following [sections 8(1), 9(3), 114(1)(a), (j)
(as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 29)]:
8. (1) 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.
9....
(3) Every person shall answer truthfully all questions put to
that person by a visa officer and shall produce such documenta
tion as may be required by the visa officer for the purpose of
establishing that his admission would not be contrary to this
Act or the regulations.
114. (1) The Governor in Council may make regulations
(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;
(j) prohibiting persons or classes of persons, other than
Canadian citizens and permanent residents, from engaging or
continuing in employment in Canada without authorization,
prescribing the types of terms and conditions that may be
imposed in connection with such authorization and exempt
ing any person or class of persons from the requirement to
obtain such an authorization.
The regulations relevant here are subsection 18(1)
[as am. by SOR/89-80, s. 1] and section 20 [as
am. by'SOR/80-21, s. 7; SOR/84-849, s. 2], which
provide, in part:
18. (1) Subject to subsections 19(1) to (2.2), no person,
other than a Canadian citizen or permanent resident, shall
engage or continue in employment in Canada without a valid
and subsisting employment authorization.
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.....
(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.
The onus of satisfying the visa officer that she
met criteria for admission to Canada was here on
Ms. Quadros (subsection 8(1)) and she had an
obligation to provide truthful answers and infor
mation to questions asked of her in the process
(subsection 9(3)). There is no doubt that the Gov
ernor in Council acting under paragraphs
114(1)(a) and (j) could have provided by regula
tion specific arrangements for admission of foreign
domestic workers. Yet that was not done. The only
regulations directly applicable in this case are the
sections noted above and by these Ms. Quadros
was required to have a valid employment authori
zation if she was to work in Canada and she was
only entitled to that employment authorization on
the conditions set out in section 20 of which the
key element here was the assessment of the qualifi
cations and experience of Ms. Quadros "for the
employment for which the employment authoriza
tion is sought" under paragraph 20(3)(b).
Though there are no regulations dealing specifi
cally with arrangements for admission to Canada
of foreign domestic workers, policy guidelines of
the respondent Minister of Employment and
Immigration, contained in an Immigration
Manual, provide for a Foreign Domestic Move
ment (FDM) Program in considerable detail.
Among the provisions relating to the FDM Pro
gram, sections 15.26 and 15.61 of the Manual
outline the underlying philosophy and arrange
ments concerning occupations recognized under
the Program and selection criteria for applicants.
The Program is described as designed for the
professional domestic or nanny able to assume
management of a household and for care of chil-
dren or the duties specified within designated
occupational classifications, and who are expected
to be live-in household domestic workers. The
designated occupational classifications include
those of housekeeper, companion, servant-domes
tic, baby-sitter, children's nurse, and parent's
helper, as defined in the Canadian Classification
and Dictionary of Occupations (CCDO), a publi
cation of Employment and Immigration Canada
which serves as an aid to immigration and employ
ment officers. In order to qualify under the occu
pational classifications, a prospective immigrant or
foreign temporary worker is expected to meet the
requirements set out in relation to the relevant
classifications. For example, one of the require
ments that must be met is "specific vocational
preparation". For the occupations here included
that preparation varies: anything from a short
demonstration up to 30 days for a companion, a
baby-sitter and a parent's helper; over 30 days up
to 3 months for a servant-domestic; over 3 months
up to 6 months for a children's nurse; and over 6
months up to a year for a housekeeper.
The Foreign Domestic Worker Program guide
lines establish criteria for assessment in subsection
15.61(3), which provides:
a) The applicant must show evidence of either formal training
in the domestic and/or child care field or sufficient experience
(minimum of one year satisfactorily-rated, full-time paid
employment as a domestic to compensate for a lack of formal
training). Training or experience must have occurred within the
preceding five-year period.
b) For clarity, formal training means successful completion of
a recognized program of study at a state or private institution
in the occupation to be followed under the FDM. Successful
completion is demonstrated by the applicant having been
awarded a diploma, certificate or its equivalent.
c) The level of education should be sufficient to enable the
applicant to successfully perform the duties in the job offer. For
example, a housekeeper may not require the same level of
education as would the nanny responsible for the care and
nurturing of children.
d) The applicant must be able to communicate orally and in
writing in either French or English. An applicant's ability to
properly react in circumstances of emergency and be able to
secure proper assistance for the children in their care would be
severely undermined if they were unable to make themselves
properly understood.
e) By its very nature, live-in domestic employment tends to
demand certain personal qualities. Applicants will be screened
to determine if they are resourceful, mature, stable and possess
the initiative required to deal with possible emergencies.
f) The fact that applicants may be married and/or have
dependants should be considered in relation to their back
ground and work history and the eventual self-sufficiency of the
family unit; however, applications should not be refused only on
the basis that the applicant has dependants.
(While there is some uncertainty about the rele
vance of the assessment criterion in paragraph (e),
relating to motivation or initiative, which was said
not to have been applied by the visa officer making
a decision in respect of this final application, it was
a factor in earlier refusals, is referred to in expla
nation of the second, and is incorporated by refer
ence as a factor in the third decision by the visa
officer's telex of June 1989.)
Issues and Argument
The applicant submits that "the visa officer
erred in law in assessing Ms. Quadros' application
to enter Canada as a temporary worker by impos
ing standards of assessment not required by the
Immigration Regulations". The standards referred
to are some requirements of the Manual, and other
factors that were irrelevant to assessing Ms. Quad-
ros' qualifications. The applicant also submits that
the visa officer improperly fettered his discretion
by relying upon the guidelines contained in the
Immigration Manual, to the exclusion of other
relevant considerations. The guidelines were inter
preted, it was submitted, as mandatory require
ments, as though they were the law and not as
guidelines. Thus, both these arguments are found
ed upon an allegation that the standards of assess
ment applied did not conform to law. The appli
cant also submits that the visa officer failed in his
duty of fairness towards Ms. Quadros, in particu
lar by not treating the third application as one
requiring assessment apart from his earlier con
sideration of previous applications.
Consideration of the first two issues raised by
the applicant requires an examination of the rea
sons for refusal of Ms. Quadros' third application
for a visa with employment authorization. Those
reasons were contained in a telex from New Delhi
to the Canada Employment Centre in Peterbor-
ough, dated June 18 or 19, 1989, and, by its
reference, the earlier telex in March 1988. Counsel
were agreed that the later message, stating the
earlier one had clearly outlined the reasons for
refusal, incorporated by reference the reasons for
the second refusal as reasons for refusing the
application a third time. The two messages refer to
a number of matters that can be classed within two
general reasons for refusal, that Ms. Quadros did
not meet the criteria for selection, and that the
employment offer was not bona fide, but was
rather a means of allowing Ms. Quadros to obtain
a visa, despite validation of the offer of employ
ment by CEC in Peterborough. Counsel for the
parties dealt with the reasons stated in relation to
these two general considerations.
Ms. Quadros's employment offer included
employment responsibilities that went beyond the
bounds of any one of the designated job classifica
tions within the CCDO. She was to be a live-in
housekeeper with cooking, cleaning and regular
household duties, a companion for an elderly
couple who would assist with their care, a cook
with ability to prepare traditional Indian food, and
a tutor for a young girl. She was required to speak
the Konkani language for her role with the elderly
couple, and was required also to warrant the trust
of her employers since money was frequently left
in the house. It was incumbent upon the visa
officer assessing Ms. Quadros' application to con
sider the employment offer as one outlined by the
employer and with reference to the unique circum
stances set out by the officer of CEC Peterbor-
ough. That is required by paragraph 20(3)(b) of
the Regulations, that the visa officer consider the
qualifications and experience of the applicant for
the "employment for which the employment
authorization is sought".
In Fung v. Minister of Employment and Immi
gration (1989), 27 F.T.R. 182 (F.C.T.D.), at page
185, Jerome A.C.J. stated:
... the duty of a visa officer in this situation is to make an
assessment of an applicant's work experience sufficient to
evaluate it with respect to that applicant's intended occupation,
and any others which the applicant claims are included.
The respondent acknowledges this duty. In his
decision, the Associate Chief Justice cited his prior
decision, Hajariwala v. Canada (Minister of
Employment and Immigration), [1989] 2 F.C. 79
(T.D.), which established that a visa officer is
required to assess experience relevant to the
employment intended to be pursued in Canada.
Although these cases concern applications for per
manent residence, it is my view that section 20
similarly attracts the principle, stated in
Hajariwala, at page 86, that "There is no reason
why the actual experience and time spent in each
of the various responsibilities in an occupation
cannot be broken down to award units of assess
ment for experience in intended occupations."
What this implies, in my view, is that although in
strict definitional terms, a teacher is not a child
care worker, to the extent that the skills required
of a teacher are similar to those required of a child
care worker, then some credit must be given for
"experience" with these skills, particularly where
the duties of employment are specifically set out.
If the employment offered had been strictly in
terms of one of the particular CCDO classifica
tions, experience as a teacher may well have been
irrelevant. However, when the employment offered
contains enumerated duties including aspects from
several occupational classifications, then an assess
ment which relates only to the defined classifica
tions constitutes a failure to assess experience rele
vant to the employment intended to be pursued.
It is clear that although the visa officer in each
of the three assessments may have recognized that
there were numerous job-related tasks required in
the offer of employment, there is no recognition
that the qualifications possessed by the applicant,
Ms. Quadros, must be assessed in view of the
requirements of the employment offer. Instead, it
would seem that the visa officer was guided strict
ly by the requirements in the Immigration Manual
relating to the FDM criteria. See, for instance, the
telex sent February 3, 1988 from New Delhi to the
Canada Employment Centre in Peterborough stat
ing that "employer must understand that subjectss
[sic] fate is indeed governed by criteria for domes
tic workers. For further reference he should be
informed of criteria in Imm. Manual, IS 15.61
3)a)b)c)d) and e) which clearly state criteria".
While, as pointed out by counsel for the respond
ent, there is some indication that related experi
ence was considered in the reasons for refusal of
the second application, as revealed by the state
ment that "within her own household, sister and
mother have maintained home during the day
while she carried on her teaching career", I cannot
accept the respondent's contention that there was
no evidence that the visa officer regarded the
formal training or specified experience equivalent
as an absolute requirement. The preponderance of
material filed indicates that in considering
"qualifications and experience", the visa officer
considered the criteria contained in subsection
15.61(3) of the Manual, particularly paragraph
(a) of that section, quoted above, which required,
in lieu of formal training, a "minimum of one year
satisfactorily-rated, full-time paid employment as
a domestic". I note that this requirement exceeds
the requirements for "specific vocational prepara
tion" for the designated job classifications falling
within the FDM Program, as set out in the
CCDO, which are set out above.
The argument of the respondent at the hearing
proceeded upon the assumption that Ms. Quadros
must have the required qualifications or experience
in each of the aspects of employment set out in the
offer of employment. Counsel for the respondent
admitted that Ms. Quadros' teaching experience
was relevant to the aspect of employment relating
to instruction of the daughter, but maintained that
the visa officer's decision was correct because she
was not qualified in the other aspects of employ
ment set out in the offer of employment. That is,
she had neither training nor experience in aspects
of the offer of employment including the following:
the care of an eight (or eleven, at the time of the
third application) year old child; the care of a
senior couple, the cooking, cleaning and regular
household duties, the ability to cook Indian food,
and the ability to work with the senior couple who
speak only Konkani. To conclude that a widow
who spoke Konkani, who was a single parent with
a teenaged daughter, and who had taught primary
school for 16 years, had no training or experience
with respect to these aspects of the offered employ
ment shows reliance upon the requirement for
formal training or full-time employment in rela
tion to each of these specific aspects, rather than a
willingness to assess the skills possessed by the
applicant as these were relevant for the employ
ment offered.
In my view, this reliance upon the Manual
constitutes an error of law by the visa officer
making the decision at issue in so far as it misin
terprets the law. It must be understood that the
primary purpose of the criteria is not to decide the
fate of an applicant for employment authorization.
Instead, it is to guide the exercise of the visa
officer's discretion in assessing the application for
employment authorization in light of the require
ments of the Regulations. To restate the regulato
ry requirements, a visa officer may issue such an
authorization when he or she is satisfied, inter
alia, that the applicant is qualified for the employ
ment offered. Further, under subsection 20(1), the
applicant's qualifications are to be assessed for the
limited purpose of determining whether a grant of
an employment authorization would have an
adverse impact upon the employment of Canadian
citizens or permanent residents. Assessing the
applicant without regard to the valid purposes for
which the policy guidelines have been adopted may
result in an invalid exercise of the decision-making
authority of the visa officer. That is what has
occurred in this case.
In my view, in the circumstances here, the visa
officer, did improperly fetter his discretion. More
over, to conclude, as the visa officer did, that Ms.
Quadros did not possess any significant related
experience related to the qualifications and experi
ence required under paragraph 20(3)(b) of the
Regulations, was a patently unreasonable conclu
sion. To conclude that she did not have "experi-
ence" in those aspects of the employment offered
because she was a teacher and because her sister
and mother maintained the home during the day
does not recognize the experience and skills
required of either a primary teacher or a single
mother. To conclude that she did not have relevant
experience because her profession was "teacher"
rather than "housekeeper" or "child care worker"
imports a rigid, and in my view undue, notion of
specialization. I refer to the "specific vocational
preparation" requirements in the CCDO to sup
port my holding. Most of those classifications rele
vant for the aspects of employment required to be
performed by Ms. Quadros require considerably
less than one year of specific vocational prepara
tion. When one takes into account the aspects of
employment not covered by the assessment criteria
in the guidelines, specifically that the prospective
employee have the ability to speak Konkani, to
prepare traditional Indian food and to warrant
trust of the employer's family, then the argument
becomes untenable that Ms. Quadros has not met
the qualifications for the employment offered
essentially because she has not had experience in
full-time employment in these respects.
In reaching this alternative conclusion, I should
make it clear that I have considered the argument
by the respondent that the Court has no power to
interfere with the "opinion" of the visa officer, and
that the Court in this case is not acting as an
appellate tribunal, but simply reviewing the deci
sion made by the visa officer. I have no authority
to substitute my decision for that of the visa
officer, and I do not purport to do so. However,
this case is not similar to Wang (L.) v. Minister of
Employment and Immigration (1988), 23 F.T.R.
257 (F.C.T.D.) or Fung v. Minister of Employ
ment and Immigration, supra, in which the visa
officer carried out the assessment and reached an
adverse conclusion on the issue of experience. Nor
is it comparable to Yu v. Canada (Minister of
Employment and Immigration) (unreported,
August 10, 1990, Court file no. T-1550-90) where
there was no evidence of the visa officer's unwill
ingness to assess any evidence of equivalence for
specific vocational preparation.
There is, as I have held, an error of law in the
interpretation of the governing regulations, result
ing in a failure to carry out the duty of the visa
officer as set out in Hajariwala, supra. With
respect to my finding that the conclusion regarding
experience is untenable, I adopt the reasoning of
Lamer J. (as he then was) in Slaight Communica
tions Inc. v. Davidson, [1989] 1 S.C.R. 1038, at
page 1076, that an unreasonable exercise of a
tribunal's discretion constitutes jurisdictional
error: "Whether it is the interpretation of legisla
tion that is unreasonable or the order made in my
view matters no more than the question of whether
the error is one of law or of fact. An administrative
tribunal exercising discretion can never do so
unreasonably."
I am supported in my view by consideration of
the stated goals of the FDM Program, i.e. that
"The FDM program is designed for the profession
al domestic or nanny". If the process of assessment
followed here were applied, even a "professional
domestic or nanny" would not have been qualified
for the employment offered unless she also met the
additional special requirements of the applicant's
offer of employment by training or experience in
relation to each of those aspects.
Turning now to the applicant's argument that
other factors underlying the decision to refuse to
grant an employment authorization to Ms. Quad-
ros are irrelevant considerations in the decision-
making process, and that they demonstrate that
the visa officer erred in law in refusing to grant the
employment authorization, it is my view that this
argument is successful. These factors all come
under the general heading of the visa officer's
questioning the bona fides of the employment
offer. They include a number of separate, but
related, reasons for refusal. Thus, the fact that the
applicant Pinto sought to employ a particular
person for some two and a half years, the inference
drawn from this that his need was not critical, the
suggestion that he seek someone other than Ms.
Quadros for the employment offered (by advertis
ing in India for a qualified person, suggested coun
sel for the respondents), the fact that she did not
know the ages of the elderly couple or if they have
any special care needs, the belief that her applica
tion was motivated by eventual desire to settle
herself and her daughter in Canada for greater
opportunities for the daughter, the fact that she
had no idea what she might do in Canada three or
four years from now if she were no longer required
by the employer; all these are matters beyond the
Regulations. In my view, they clearly have nothing
to do with assessing Ms. Quadros' qualifications
for the position offered, for the purpose of deciding
whether her employment in Canada will adversely
affect employment opportunities for Canadian citi
zens or permanent residents in Canada.
Each of these factors might be discussed in
detail, as many of them were dealt with by counsel
at the hearing of this matter. I propose to deal only
with one. The persistence of Pinto in specifically
requesting the particular applicant, Ms. Quadros,
for the position of the employment offered, was
viewed as a decisive factor in the decision to refuse
the grant of employment authorization to Ms.
Quadros. This is apparent in the telex quoted
above, and in the letter of December 18, 1989 to
counsel for the applicant from the Counsellor-
Immigration in New Delhi, which deals with the
reasons for rejection. In that letter, he states, "We
may find the arrangement to be contrived specifi
cally to obtain the services of a specific person
(qualified or not) and not to obtain the services of
a person who is qualified for the position".
Although he states that Ms. Quadros was found
not to be qualified, it appears that that decision
was made, at least in part, on the basis of the
belief by the visa officer that the employment offer
was not bona fide. That belief, despite validation
of the offer of employment by CEC Peterborough,
is said to be based on the additional evidence
provided by the personal interview with the appli
cant for the employment authorization. That pro
cess purports to assess whether the applicant is
qualified in part through a determination of the
bona fides of the offer of employment. If the bona
fides of the offer is suspect, as it apparently is if
the employment offer is considered "contrived" to
obtain the services of a specific individual, then the
applicant is found to be not qualified and despite
the validation of the need for an employee by
CEC, the applicant is refused. While purporting to
ensure that the person meets requirements, there is
ultimately no assessment of the applicant for
employment authorization. Rather, the visa officer
following this process of reasoning is simply
making an assessment of the employment offer. In
my view, that is not consistent with his respon
sibilities under the Regulations, nor as I read them
is it consistent with his responsibilities under the
FDM policy guidelines.
The other factors referred to in relation to the
consideration of the bona fides of the employment
offered are, in my view, irrelevant for the decision
of the visa officer. Yet, as I read the telex mes
sages here in issue, and the explanations for them,
they were factors in the decision to refuse Ms.
Quadros' application. They are not factors to be
considered within the authority vested in the visa
officer by the Regulations, and to have considered
them is an error of law.
It is unnecessary for disposition of this matter to
consider the final ground urged by the applicant
for the relief here sought. Thus, I make no com
ment on the alleged breach of duty of fairness by
the visa officer in the circumstances of this case.
Conclusion
For the reasons outlined, I conclude that the
visa officer concerned in deciding in June 1989
upon the application of Ms. Renny Quadros for a
visa with an employment authorization erred in
law by fettering his discretion, by failing to consid-
er experience of Ms. Quadros relevant for the
tasks outlined in the validated offer of employ
ment, and by taking into account for that decision
factors which are irrelevant to considering her
qualifications and experience for the employment
for which the employment authorization was
sought.
This application is allowed. An order goes
quashing the decision of the visa officer made in
June 1989 in respect of Ms. Quadros' third
application and further ordering that the respond
ents reconsider that application in accordance with
the Immigration Act and Regulations as provided
in these reasons.
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.