Date: 20000622
Docket: IMM-1782-99
Between:
AMRIK SINGH SUNIARA,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER
Muldoon, J.
[1] This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, Chap. F-7, for judicial review of a decision by a visa officer, made February 2, 1999, rejecting the applicant as a bank branch accountant and a credit/loan officer in the independent category. The applicant seeks an order quashing the decision and an order directing that the respondent reconsider the applicant's application for permanent residence. This application was heard in Toronto, on June 15, 2000, in the presence of each party's counsel.
Facts
[2] The applicant is a citizen of India. He applied for permanent residence in Canada in the independent class and was granted an interview for November 23, 1998.
[3] At the interview, the applicant was evaluated for a bank branch accountant under chapter 1171-138 of the Canadian Classification and Dictionary of Occupations, Ottawa: Employment and Immigration Canada, 1977 - (hereinafter CCDO) and chapter 1111.2 of the National Occupational Classification, Ottawa: Human Resources Development Canada, 1989 - (hereinafter NOC). He was also evaluated as a credit/loan officer under CCDO chapter 1171-210 and NOC chapter 1231.
[4] Unfortunately for the applicant, he was not assessed at least 70 points under any of the chapters and, therefore, came within the inadmissible class of persons described in paragraph 19(2)(e) of the Immigration Act, R.S.C. 1985, Chap. I-2. In particular, he scored the following:
| bank branch accountant CCDO NOC |
| age 10 10 |
| occupational factor 03 03 |
| ETF/S.V.P. 15 15 |
| experience 06 06 |
| A.R.E. 00 00 |
| demographic factor 08 08 |
| education 16 16 |
| english 07 07 |
| french 00 00 |
| bonus 00 00 |
| suitability 04 04 |
| total 69 69 |
| credit/loan officer CCDO NON |
| age 10 10 |
| occupational factor 03 03 |
| ETF/S.V.P. 11 05 |
| experience 06 04 |
| A.R.E. 00 00 |
| demographic factor 08 08 |
| education 16 16 |
| english 07 07 |
| french 00 00 |
| bonus 00 00 |
| suitability 05 05 |
| total 69 69 |
[5] In his notes from the Computer Assisted Information Processing System (CAIPS), the visa officer recorded the following impressions in respect of his assessment of the applicant's suitability:
| SUITABILITY: HAS NOT COMPLETED A TRAINING PROGRAM APPROVED BY THE INSTITUTE OF CHARTERED ACCOUNTANTS OF CDA OR SOCIETY OF CERTIFIED GENERAL ACCOUNTANTS OR SOCIETY OF MGT ACCOUNTANTS. NO ACCREDITATION. NO C.A. IN INDIA AND NO OCCUPATION IN SPITE OF EXPERIENCE. EFFORTS TO FIND OPPORTUNITIES ON CDIAN LABOR (sic) MARKET MADE BY CONSULTANT. |
[6] The applicant was sent a refusal letter dated February 1, 1999 detailing the visa officer's decision that the applicant did not meet the requirements for immigration to Canada.
Legal issues
[7] The applicant raises two issues. The first one concerns whether the visa officer erred when assessing the personal suitability of the applicant by narrowing his focus too much. The second issue concerns whether the visa officer, by considering the applicant's lack of training within the compass of personal suitability, "double counted" due to the fact that training is also considered under item 2 of Schedule I of the Immigration Regulations, 1978 SOR/78-172.
[8] In regard to the first issue, the applicant submits that the visa officer erred, when measuring personal suitability, in focussing too narrowly on the occupation which the applicant intended to pursue. He also takes exception to the weight which the visa officer placed on the lack of transferability of his accountancy experience to the Canadian labour market. Third, the applicant submits that the visa officer erred by noting that he had not completed any special training program because none of these was required under CCDO chapter 1171-138. Finally, the applicant submits that the visa officer made an error of fact when he wrote in his CAIPS notes that the consultant had made the applicant's job search for him.
[9] The respondent submits first, that a visa officer's findings of fact and use of discretion are reviewable on the standard of patent unreasonableness. She also submits that the visa officer properly considered economic factors in respect of the applicant's personal suitability. As for the visa officer's consideration of training programs which the applicant might have taken, the respondent submits that the visa officer was simply considering the applicant's failure to upgrade his skills for the Canadian market. Finally, the respondent submits that the erroneous finding in respect of who exactly had made the applicant's job search is irrelevant as the job search, in any event, was a poor one.
[10] The applicant relies on the decision in Maniruzzaman v. Canada (Minister of Citizenship and Immigration)(1999), 167 F.T.R. 139 (T.D.) in suggesting that a visa officer must consider a broad range of factors when measuring personal suitability, especially where the applicant is very close to registering the requisite number of points needed to succeed on his or her application for permanent residence. Yet, though the visa officer in that case was found not to have broadened his search sufficiently, the same cannot be said in the instant case. Nor, indeed, did the applicant suggest what else the visa officer might have considered. In addition, this Court cannot accept that a visa officer is under a duty to change the factors he or she is to consider simply because the applicant is close to receiving the requisite 70 points. So long as the factors are economic factors primarily related to the ability to support oneself, the applicant cannot complain; Chen v. Canada (Minister of Employment and Immigration), [1995] 1 S.C.R. 725.
[11] As to whether the visa officer was wrong to have emphasized the differences between the experiences of Indian accountants and Canadian accountants, the facts do not bear out the applicant's submission. Specifically, the visa officer did not refer in general to the Indian character of the applicant's experience but, rather, to the specific lack of his experience (or training) in India being a barrier to him scoring higher on personal suitability.
[12] Should the visa officer, in light of the fact that accountancy accreditation and training at the Institute of Chartered Accountants of Canada, Society of Certified General Accountants and Society of Management Accountants are not required for branch accountants under CCDO chapter 1171-138, have considered the lack of any accreditation, Canadian or otherwise, in respect of this chapter? The respondent argues that, given that the applicant lacks some of the education and training required to become an accountant in Canada, it was open to the visa officer to address his apparent lack of interest in upgrading his skills in order to become more competitive. This Court notes that if the visa officer had considered the lack of accreditation and training when measuring the applicant's training and entry requirements, then he would have erred, because neither of these is required under chapter 1171-138; Lee v. Canada (Minister of Citizenship and Immigration)(1995), 29 Imm. L.R. (2d) 222 (F.C.T.D.). As a matter for personal suitability, however, it was open to the visa officer to consider the lack of any Canadian or Indian accountancy accreditation as an economic factor and, in the circumstances, as an obstacle to his establishment in Canada.
[13] As for whether the visa officer's reference, in his CAIPS notes, to the consultant as opposed to Global Placement Services making enquiries into the labour market, the Court finds this to be a difference without distinction. The issue which the visa officer was addressing when he wrote this part of his CAIPS notes concerned the applicant's failure to make any enquiries himself. Whether it was his immigration consultant or a placement service who did it for him makes no difference. The point for the visa officer clearly was that it did not show much resourcefulness, on the part of the applicant either way. This conclusion is born out by the visa officer on cross-examination:
| Q. And how did you consider that letter when assessing personal suitability? |
| A. It is certainly a factor. I do take that into consideration. But, I took, I take other elements as well. |
| Q. But did you consider that as an effort to find opportunities about the Canadian job market? |
| A. Once again, yeah, it is one element, although what I find is that quite often the consultants have suggested to do it. It's not necessarily, not necessarily an effort from the applicant in the first place. |
[14] Regarding the second issue, the applicant submit that the visa officer erred in measuring his education and training (or lack thereof) under both item 2 - education and training, and under item 9 - personal suitability. The respondent submits that a visa officer is allowed to consider again factors already covered under items 1 to 8 of Schedule I of the Immigration Regulations, 1978 SOR/78-172 when assessing personal suitability if these factors be assessed from the perspective of whether they indicate an ability to become successfully established.
[15] The respondent correctly points to the many decisions in which this Court has held that factors considered under items 1 to 8 of Schedule I may be reconsidered under personal suitability if they suggest a greater or lesser ability to become successfully established. As was noted in Ajmal v. Canada (Minister of Citizenship and Immigration)(1998), 44 Imm. L.R. (2d) 26 (F.C.T.D.) at paragraph 10:
| I now turn to the question of double counting of the applicant's education and lack of relatives in Canada. Notwithstanding the general principle that a visa officer cannot engage in double counting when assessing an applicant on the basis of the criteria outlined pursuant to subsection 8(1) of the Regulations, it has been established by the case-law that it is acceptable to consider one of the other enumerated factors in assessing personal suitability, so long as it is appraised from a different perspective (see, for example, Stefan v. Canada (M.C.I.)(1995), 35 Imm. L.R. (2d) 21 (F.C.T.D.); Parmar v. Canada (M.C.I.)(November 12, 1997), IMM-3177-96 (F.C.T.D.); and Vasilev v. Canada (M.C.I.)(1996), 110 F.T.R. 62) |
[16] This Court's other difficulty with the applicant's second main submission is that he has pleaded, in paragraph 11 of his memorandum of law, that the completion of a training program is not part of the training requirements laid out in CCDO Chapter 1171-138. If this be the case, and the Court accepts that the applicant has formally admitted to it, then it is difficult to suggest that the visa officer has considered any training program under item 2 because this would be tantamount to suggesting that he has considered an irrelevant factor, at least in respect of chapter 1171-138. The Court is not satisfied that the visa officer considered training at the Institute of Chartered Accountants of Canada, Society of Certified General Accountants and Society of Management Accountants for the second time under "personal suitability", Rather, it appears, at least in respect of chapter 1171-138, that the visa officer considered the training for the first time under "personal suitability".
[17] The applicant having failed in both his submissions, his application for judicial review is dismissed.
Ottawa, Ontario
June 21, 2000
Judge.