Date: 20020531
Docket: IMM-4900-00
Neutral Citation: 2002 FCT 621
BETWEEN:
RAJA ABDUL HAMEED
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
KELEN J.:
[1] This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7 for judicial review of the decision of visa officer Eligiusz Adamski, dated August 9, 2000, wherein the application for permanent residence was refused on the grounds that the applicant has obtained insufficient units of assessment to qualify for an immigration visa.
FACTS
[2] The applicant is a citizen of Pakistan, 41 years old at the time of application. The applicant applied through the Canadian High Commission in London, England for permanent residence status on or about December 17, 1998. On June 24, 2000, the applicant attended at an interview in Abu Dhabi with Officer Adamski. The applicant's wife was also in attendance. Following the interview, the applicant received a letter dated August 9, 2000, notifying him of the officer's negative decision.
Decision of Officer Adamski
[3] By letter dated August 9, 2000, the officer set out the amount of units awarded to the applicant towards the required 70 units, as follows:
|
Category |
NOC |
|
Age |
10 |
|
Occupational Demand |
3 |
|
Specific Vocational Preparation/ Education and Training Factor |
15 |
|
Experience |
6 |
|
Demographic Factor |
8 |
|
Education |
13 |
|
English |
9 |
|
French |
0 |
|
Bonus (Close Relative in Canada) |
4 |
|
Personal Suitability |
4 |
|
Total |
68 |
[4] The officer then concluded as follows, in part:
You have obtained insufficient units of assessment in this occupation to qualify for immigration to Canada.
You therefore come within the inadmissible class of persons described in Paragraph 19(2)(d) of the Immigration Act and your application has been refused.
In his CAIPS notes the officer entered the following comments:
[...SETTLEMENT PLAN (MOTIVATION/INITIATIVE/RESOURCEFULNESS): HAS NOT CONTACTED ANY CND EMPLOYERS. HAS ONLY CONTACTED FRIENDS. FRIENDS TELL HM THAT THERE ARE VACANCIES IN HIS OCCUPATION. WOULD LOOK JOB [sic] AS A MACHINERY MECHANIC. WIFE WILL LOOK AFTER CHILDREN. SAYS HE IS A HARD WORKER. DOES NOT KNOW CDN JOB REQS.
[...]
- I AM NOT FULLY CONVINCED THAT HIS BA FROM PAKISTAN IS GENUINE - NO MARKS SHEET AND STUDIED FULL TIME WHILE WORKING FULL TIME.
[...]
I WILL GIVE HIM BENEFIT OF DOUBT AND GRANT HIM 13 UNITS FOR EDUCATION.
ALTHOUGH HE HAS NOT PRESENTED PROOF THAT HE WOULD BE ELIGIBLE FOR TRADE CLASSIFICATION IN CANADA (PER NOC), I WILL GIVE HIM BENEFIT OF DOUBT AND CLASSIFY HIM AS 7216.0(OCCUPATION WITH HIGHEST UNITS). 4 UNITS FOR PERS SUITABILITY: DOES NOT KNOW CDN JOB REQS, HAS NOT PROVIDED ANY INFO TO BELIEVE THAT HE WOULD BE ABLE TO SUPPORT HIS FAMILY OF 6, WIFE WILL BE UNABLE TO CONTRIBUTE TO FAMILY S SUPPORT (LITTLE ENGLISH AND WILL BE LOOKING AFTER CHILDREN), UNIMPRESSIVE LIQUID FUNDS FOR A FAMILY OF 6. INSUFF UNITS. I BELIEVE THAT HIS SCORE REFLECTS CORRECTLY HIS SETTLEMENT PROSPECTS. APPLICATION REFUSED...]
RELEVANT LEGISLATION
[5] The relevant sections of the Immigration Act R.S.C. 1985, c. I-2 read as follows:
| Visas and Special Authorizations Applications for visas 9. [...]
Issuance of visa (4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
[...]
Inadmissible Classes Inadmissible persons 19. [...]
Inadmissible classes where entry permitted (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
[...] (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
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Visas et autorisations spéciales Demande de visa 9. [...]
Délivrance de visas (4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements.
[...]
Catégories non admissibles Personnes non admissibles 19. [...]
Autorisation de séjour à des personnes non admissibles (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui:
[...]
d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.
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[6] The relevant sections of the Immigration Regulations, 1978 SOR/78-172 read as follows:
| SELECTION CRITERIA 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I; [...]
9. (1) Subject to subsection (1.01) and section 11, where an immigrant, other than a member of the family class, an assisted relative, or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if [...] (b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8,
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment,
|
|
CRITÈRES DE SÉLECTION 8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint :
a)dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
[...]
9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se rétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si [...] b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8 :
(i) dans le cas d'un immigrant, autre qu'un entrepreneur, un investisseur, ou un candidat d'une province, il obtient au moins 70 points d'appréciation,
|
STANDARD OF REVIEW
[7] Teitelbaum J. in Liu v. Canada (Minister of Citizenship and Immigration),[2001] F.C.J. No. 1125, 2001 FCT 751(F.C.T.D.), wrote:
The appropriate standard of review for this type of decision - a discretionary one by a visa officer - is the same as that enunciated by McIntyre J. in the Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7 - 8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
In Wang v. Canada (M.C.I.),[2001] F.C.J. No. 95 (IMM-2813-00, January 25, 2001), Rouleau J., referring to the above cited passage as well as to the Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, held that the appropriate standard of review should be reasonableness simpliciter [emphasis added].
Accordingly, reasonableness simpliciter is the appropriate standard to review the officer's decision in this case. The Court will not set aside a decision of an immigration officer, nor substitute its decision for an officer's, unless that decision was unreasonable or clearly wrong.
ANALYSIS
[8] The applicant submitted that the only issue is whether the visa officer took into account irrelevant or inappropriate factors in awarding the applicant only four units in the personal suitability category.
[9] Pinard J. in Shah v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 645, 2001 FCT 343 (F.C.T.D.) held:
¶ ¶ 8 At the outset, I must remind the applicant that this Court has repeatedly stated that a visa officer is in the best position to assess an applicant's qualifications and abilities. These are factual findings which this Court will not disturb unless it is demonstrated that the statutory discretion has been exercised in bad faith, in violation of the principles of natural justice, or where reliance has been placed upon irrelevant or extraneous considerations (see Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7 to 8, as cited by the Federal Court of Appeal in Chiu Chee To v. Minister of Employment and Immigration, [1996] F.C.J. No. 696, (May 22, 1996), A-172-93). The applicant has not succeeded in establishing any of these circumstances with respect to the visa officer's language assessment. As for the applicant's previous experience with the English language in the context of social, educational and professional pursuits, I must concede that this means relatively little when contradicted by the officer's personal observations (Bhatia v. Minister of Citizenship and Immigration, [1996] F.C.J. No. 1462, (October 16, 1996), IMM-343-96). Again, the visa officer is the best placed to observe the applicant's abilities and great deference must be given to such determinations.
[10] It is clear that a high level of deference is appropriate to the evaluation of a visa officer in circumstances such as the case at bar. In this case the officer considered factors of personal suitability as:
- · no contact by the applicant with possible employers in Canada;
- · the applicant's reliance on the recommendations of friends for employment prospects;
- · "does not know Canadian job requirements";
- · failure by the applicant to establish that his qualifications would be applicable to a Canadian employer; and,
- · "would not be able to find employment with income sufficient to support his family of six."
[11] These factors are not unreasonable or irrelevant in assessing personal suitability of the applicant. This Court has held that the failure to contact employers or engage in a Canadian job search is a valid consideration in assessing personal suitability. See Milovanova v. Canada (M.C.I.), [1999] F.C.J. No. 1353 per Cullen J. and Bahram v. Canada (M.C.I.) (IMM-3139-98) unreported per Pinard J.
Broader Assessment
[12] I do not find any basis for this court to set aside the officer's decision on the grounds that the officer should have applied a ‘broader' assessment when the applicant was two units short of the necessary 70 units. The applicant has directed the Court's attention to the case of Maniruzzamam v. M.C.I., [1999] F.C.J. No. 612 (F.C.T.D.) where Reed J. wrote:
¶ ¶ 21 The above review shows that the visa officer placed an inordinate amount of weight on relevant but not central factors (e.g., his knowledge of the geography of Canada). At the same time, she appears to have ignored or not explored relevant areas. When assessing personal suitability, the characteristics of "adaptability, motivation, initiative, [and] resourcefulness" are to be assessed. While the applicant's present knowledge of Canada and the banking system are relevant, a broader evaluation is required to assess the above described characteristics. This is particularly true in a situation such as the present where an applicant is one or two points short of the required total.
[13] I find this case to be distinct on the facts, and refer in turn to the decision of MacKay J. in Li v. M.C.I., [2002] F.C.J. No. 222, 2002 FCT 174 (F.C.T.D.):
¶ ¶ 13 The applicant submits, referring to Goyal v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm L.R. (3d) 238, Luo v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 170 and Maniruzzaman v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 139, that where an applicant is just one or two points short of the total units required for admission, particularly where there is a low rating of personal suitability, the Court should carefully review the overall assessment. In my view each of these cases stands for more than the proposition that an overall assessment close to but less than the minimum required warrants review. Thus in Goyal, Mr. Justice Linden found that vital, relevant evidence had been overlooked. In Luo Madam Justice Tremblay-Lamer found that the officer had considered negatively the fact that the applicant had never visited Canada, a fact that the Court considered irrelevant. In Maniruzzaman Madam Justice Reed found that the visa officer placed inordinate weight upon factors which were relevant but not central to consideration of personal suitability.
The visa officer is not required to reconsider or change the units of assessment because the applicant is close to receiving the threshold of 70 units to qualify for an immigrant visa. The officer's decision deals with relevant and reasonable factors central to the application and did not include any irrelevant considerations. I find that the officer's decision to award four units for personal suitability was not clearly wrong or unreasonable.
[14] Both counsel said that there was no question of general importance to be certified in this case.
[15] Accordingly, this application for judicial review is dismissed.
(signed) Michael A. Kelen _________________________
JUDGE
OTTAWA, ONTARIO
MAY 31, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4900-00
STYLE OF CAUSE: RAJA ABDUL HAMEED
Applicant
- and -
M.C.I.
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 27, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE KELEN
DATED: May 31, 2002
APPEARANCES:
Mr. Benjamin Kranc FOR THE APPLICANT
Ms. Pamela Larmondin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Benjamin Kranc FOR THE APPLICANT
Kranc & Associates
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada