Date: 20030730
Docket: IMM-1220-02
Neutral Citation: 2003 FC 936
OTTAWA, ONTARIO, THIS 30th DAY OF JULY 2003
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
MAHMUD ATAULLAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of Gilles Le Maire (the "visa officer"), dated February 15, 2002, in which the visa officer denied the applicant's application for permanent residence in Canada.
[2] The applicant is a citizen of Pakistan. He and his family have been living in the United States without status since 1995. The applicant applied for immigration to the United States and was refused. He then submitted an application for permanent residence to Canada under the independent category and requested assessment as a Travel Consultant (NOC 6431). The applicant's wife and three children were included in the application as dependants.
[3] The application was considered pursuant to the Immigration Regulations, 1978, SOR/78-172, (the "Regulations"). After conducting an interview with the applicant and assessing his application, the visa officer awarded the applicant the following points:
Age 10
Occupational Factor 01
Education and Training 15
Experience 06
Arranged Employment 00
Demographic Factor 08
Education 15
English 09
French 00
Personal Suitability 01
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Total 65
[4] Since the applicant lacked the required 70 points under the Regulations, the visa officer refused to grant the applicant a visa.
[5] The applicants now seek judicial review of this decision on the basis, first, that the visa officer failed to adequately assess the applicant's personal suitability, second, that the visa officer engaged in "double counting", and third, that the visa officer erred by failing to exercise his discretion in accordance with subsection 11(3) of the Regulations.
Personal Suitability
[6] Schedule 1 of the Regulations defines the personal suitability factor:
| 9. 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. |
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9. 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 réussir leur installation au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et autres qualités semblables. |
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[7] As such, the factors to be considered are, among others, the suitability of the applicant and his dependants to become successfully established in Canada based on adaptability, motivation, initiative, resourcefulness, and other similar qualities.
[8] The decision of a visa officer in relation to personal suitability is about whether the applicant will be able to successfully establish themself in Canada. This determination involves the exercise of discretion by the visa officer, and the Court should be reluctant to intervene unless there is evidence that the visa officer exercised his discretion in bad faith or in reliance upon extraneous or irrelevant considerations or in a manner inconsistent with either the legislation or the principles of fundamental justice: see Kasarla v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 964, 2001 FCT 648; Lim v. Canada (Minister of Employment and Immigration) (1991), 121 N.R. 241 at 243 (F.C.A.); and To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (F.C.A.).
[9] On the basis of the interview conducted, the visa officer determined that the applicant had not made any efforts to increase his chances of successful settlement in Canada. Despite working in the travel industry and travelling frequently, he had never visited Canada. In the opinion of the visa officer, the applicant lacked knowledge about Canada, demonstrated little motivation and initiative, and had not conducted any detailed research about life in Canada or the job market for his claimed field of occupation.
[10] The applicant argues that this determination is incorrect, as he had demonstrated adaptability and initiative. Specifically, the applicant points to the time he spent living in the United States and other places as evidence of his adaptability, and to the computer courses he completed as proof of his initiative. He was also able to save some $21,000. The applicant maintains that these factors should have been taken into account in the assessment of his application. The applicant also argues, on the basis of the general comment made by Dawson J. in Du v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 64 at para. 21 (F.C.T.D.), that the average assessment for personal suitability is between five and six, and accordingly, that the visa officer's decision to award only one unit here for personal suitability is patently unreasonable.
[11] In my opinion, there is no evidence that the visa officer considered wrong factors when assessing the suitability of the applicant. Moreover, the applicant failed to convince me that the visa officer's decision in this regard is patently unreasonable. The CAIPS notes indicate that the visa officer asked the applicant about the research he had conducted in relation to employment and settling in Canada, and the applicant's answers were insufficient to displace the visa officer's concerns. If the visa officer did not consider the applicant's answers satisfactory, it is not for this Court to re-weigh the evidence at the judicial review stage.
[12] In any event, the visa officer reasonably concluded that the applicant's case did not warrant high suitability points as he had shown no motivation to go to Canada, nor had he shown resourcefulness or initiative. In addition, the visa officer also took into account the ability of the applicant's dependants to settle, including the fact that his wife has no work experience. This was an appropriate approach and I see no reason to interfere with it at this time.
[13] An additional comment is required on the following phrase in the visa officer's CAIPS notes:
His total lack of knowledge about Canada, lack of initiative and motivation (other than his coming to the USA in 1995, staying illegally, and now finding he is stuck here), lack of close relatives to assist, family of 5, wife with no work experience, leads me to provide low suitability points.
[Emphasis added]
[14] The Overseas Processing Manual confirms that missions "cannot refuse to process applications from applicants without lawful permission to be in the country where they reside, including Canada". (see s. 3.2.1, Immigration Manual, Overseas Processing (OP1), General Procedure Guidelines 2000). However, in the present application, there is no evidence to suggest that the applicant's application was not processed, or that he was treated unfairly on the basis of his illegal status in the United States. As such, I find that the applicant's allegation in this regard has no merit. Moreover, the applicant has also failed to convince me that the error allegedly made by the visa officer concerning the personal suitability factor would have materially affected the result since, in the case at bar, the applicant needed five more points.
Double Counting
[15] The applicant submits that the visa officer engaged in double counting when he considered that the applicant did not have close relatives in Canada in his assessment of the applicant's personal suitability factor.
[16] It is a settled principle of law that a visa officer does not engage in double counting by mentioning the same attribute twice in relation to different categories, so long as the attribute is viewed from different perspectives, and as the case may be, from the perspective of how it demonstrates the applicant's ability, or lack thereof, to become successfully established in Canada (see Bing v. Canada (Minister of Citizenship and Immigration) (2001), 210 F.T.R. 130 at para. 15 and cases cited herein). In the case at bar, I am satisfied that the visa officer here did not double-count previously assessed Schedule I factors. The visa officer considered the applicant's lack of relatives in Canada from the perspective of his motivation and initiative and ability to become successfully established in Canada. It was reasonably open to the visa officer to assess the applicant at a lower personal suitability score when the evidence disclosed that he was not very motivated and had taken no initiative.
No Request for subsection 11(3) discretion
[17] Subsection 11(3) of the Regulations provides that a visa officer may issue an immigrant visa to an immigrant who was not awarded the number of units of assessment required if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of that particular immigrant and his dependants of becoming successfully established in Canada.
[18] It is incumbent on the applicant to apply for determination under subsection 11(3). In so doing, the applicant should provide reasons why the units of assessment would not reflect his or her chances of successful establishment in Canada: Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 at para. 6. In the present case, there is no evidence that the applicant requested the exercise of the subsection 11(3) discretion, nor, in any event, is there any evidence that there was any basis for the exercise of positive discretion. In this regard, the CAIPS notes confirm that there is no exceptional circumstances present here.
Conclusion
[19] The applicant has not demonstrated any reviewable errors that would warrant reconsideration. Counsel agree that there is no question of general importance that ought to be certified by the Court.
O R D E R
The application for judicial review of the decision of the visa officer, dated February 15, 2002, in which the visa officer denied the applicant's application for permanent residence in Canada, is dismissed. No question of general importance will be certified by the Court.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1220-02
STYLE OF CAUSE: MAHMUD ATAULLAH v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 25, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: JULY 30, 2003
APPEARANCES BY:
MS. SABRINA TOZZI FOR THE APPLICANT
MR. STEPHEN GOLD FOR THE RESPONDENT
SOLICITORS OF RECORD:
GREEN AND SPIEGEL FOR THE APPLICANT
TORONTO, ONTARIO
MR. MORRIS ROSENBERG FOR THE RESPONDENT
TORONTO, ONTARIO