Date: 20000606
Docket: IMM-2897-99
Between :
XUE RONG WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision rendered by visa officer Gregory Chubak on May 5, 1999, determining that he did not meet the requirements for immigration to Canada in the Independent category.
[2] The applicant, a citizen of the People's Republic of China, applied for permanent residence status in Canada for himself, his wife and their minor daughter. He indicated that his intended occupation was "Computer Programmer" (NOC 21630). He was interviewed in Hong Kong on April 26, 1999. The interview was conducted in English, with an interpreter present.
[3] The applicant was assessed as a computer programmer and was awarded insufficient units of assessment to qualify for immigration to Canada in his intended occupation:
Age 10
Occupational Demand 10
Education/Training Factor 15
Experience 06
Arranged Employment 00
Demographic Factor 08
Education 15
English 02
French 00
Personal Suitability 02
Total 68
[4] Discretionary decisions of visa officers with respect to immigrant applications command deference. In Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the Federal Court of Appeal adopted the standard set out by the Supreme Court of Canada at pages 7 and 8 of Maple Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2:
| . . . 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. . . . |
[5] This application turns on whether the visa officer failed to observe a principle of natural justice or ignore relevant evidence in assessing the applicant's personal suitability. The relevant portion of Schedule I of the Immigration Regulations, 1978, SOR/78-172, reads as follows:
| 9. Personal Suitability Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities. |
9. Personnalité Des points d'appréciation sont attribués au requérant au cours d'une entrevue qui permettra de déterminer si lui et les personnes à sa charge sont en mesure de s'établir avec succès au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et autres qualités semblables. |
[6] The applicant's first argument is that the visa officer failed to observe the principles of natural justice by not reconciling an alleged conflict in the evidence related to the applicant's formal computer training. In my opinion, this argument is without merit. In his affidavit, the visa officer offered the following explanation for his decision to award the applicant two units of assessment for personal suitability:
| 6. . . . Noting that the Applicant had worked in an assigned capacity in a centrally-planned economy for his entire career, it was imperative that he display some motivation, initiative, adaptability, and resourcelfullness [sic] with respect to establishing in Canada. The Applicant explained that he had no concrete job strategy and had done but a modicum of research into the Canadian labour market and the requirements therein. The Applicant was asked after any contingency plans should he not be able to secure a position as foreseen. The Applicant's reply was that he had none, save an understanding that he would be expected to work in an entry-level position and that he would hope to find a job through media such as newspapers or personnel agencies. The Applicant had no demonstrable knowledge of what the labour market demands would be in his chosen occupation. The Applicant was asked about additional formal studies in his rapidly evolving professional field to which he replied that he had undertaken self-study only. The Applicant provided, as part of his writing sample, that he had taken additional computer studies but did not provide evidence thereof, either with his application or at interview, despite being questioned specifically on this topic. The Applicant was not aware how the lack of scope, breadth, or currency of his experience would impinge upon or otherwise make his entry into the Canadian labour market difficult. The Applicant's lack of concrete research, scant understanding of and lack of research into the Canadian labour market, and lack of contingency plans was not indicative of such attributes as adaptability, initiative, motivation, or resourcefulness and he was awarded two (2) units of assessment for personal suitability. The points awarded accurately reflected the Applicant's likelihood of successful establishment in Canada. |
| 7. The Applicant was advised of the refusal of his application, and the reasons for this refusal at interview and was allowed to posit a rebuttal or to provide additional information. The Applicant had nothing to add. . . . |
[7] The underlined portions in this extract indicate that the visa officer was aware that the applicant had said that he had not pursued additional formal computer training, but written that he had taken computer classes at night school. It appears that he resolved this conflict either by discounting or by according little weight to the applicant's statement that he had taken additional computer courses. In making this decision, the visa officer considered that when asked about additional formal studies, the applicant mentioned only that he had undertaken self-study. The visa officer also noted that the applicant did not provide evidence of the alleged "additional courses", either at the time of his application or at the interview. In this context, I think that the applicant has failed to demonstrate that the visa officer either failed to reconcile the conflicting evidence before him or breached the principles of natural justice.
[8] With respect to the applicant's further arguments concerning the visa officer's assessment of his personal suitability, I am not satisfied, generally, that the visa officer ignored relevant evidence. More specifically, I do not think that the visa officer erred in not awarding any points for the applicant's spouse's occupation. Although the decision in Wan Luo v. Minister of Citizenship and Immigration (March 23, 2000), IMM-2489-99, appears to support the proposition that the employability of the spouse may, under certain circumstances, be a relevant factor in assessing an applicant's suitability, the visa officer in this case determined, as it appears from his computer notes, that the applicant's wife was unable to meet the selection criteria in any occupation.
[9] As for the applicant's further argument that during his cross-examination, the visa officer was unable to give specific reasons for his award of two units of assessment, I find that the submission is not borne out by the transcript of the cross-examination:
| Q. What was so bad about this particular applicant that you gave him such a low mark for personal suitability? |
| A. The points awarded reflect adaptability, motivation, resourcefulness and initiative demonstrated. |
| Q. But you can't point to anything more specific than that as to why you gave him such a low mark for the personal suitability assessment. Is that what you are saying, sir? |
| A. Notwithstanding that it appears that we are flogging a dead horse, I have covered the point in my CAIPS notes that I have used to assess personal suitability. |
[10] The computer notes indicate that "PI's lack of concrete research, modest understanding of the Canadian labour market, and lack of contingency plans are not indicative of such attributes as adaptability, initiative, motivation or resourcefulness". Therefore, in referring to his computer notes, the visa officer provided applicant's counsel with specific reasons for his decision to award the applicant two units of assessment for personal suitability.
[11] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
June 6, 2000