Federal Court Decisions

Date: 19971105

Docket: IMM-1731-96

BETWEEN:

     LAM KA MOU,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

HEALD, D.J.

[1]      This is an application for judicial review of the decision of a visa officer dated March 29, 1996. In that decision the visa officer refused the applicant's application for permanent residence. At the commencement of this application, I granted leave to the applicant to file the affidavit of Mary Lam sworn on October 24, 1997 as a part of this record.

FACTS

[2]      The applicant is a citizen of Hong Kong. On September 14, 1995, he submitted an application for permanent residence in Canada in the assisted relative category. He wished to be assessed as a budget accountant, that being his intended occupation. On January 22, 1996, the Commission for Canada in Hong Kong sent a letter to the applicant asking him to submit his academic qualifications for assessment by the Certified General Accountants Association of Canada (C.G.A.). The applicant did not comply with this request. It was his view that he would not require C.G.A. qualification because it was not his intention to engage in practice as a public accountant. On March 29, 1996, the applicant attended at the office of the Commission in Hong Kong where an interview was conducted.

[3]      The applicant was assessed in the occupation of administrative officer and was awarded 50 units of assessment.

[4]      In the refusal letter the visa officer stated that the applicant did not meet the qualifications set out in the Canadian Classification and Dictionary of Occupations (C.C.D.O.) in the occupation of budget accountant because: a) he had not completed high school at the university entrance level; b) he had neither completed a degree nor followed a planned course of study; and c) he did not satisfy the requirement that he pass periodic and final examinations which would lead to membership in a provincial accounting association. The visa officer then stated that even if the applicant had been assessed as a budget accountant, he would have earned only the following additional units: occupation factor - 2 additional units, specific vocational preparation - 3 additional units, experience - 2 additional units.

[5]      These additions would only have brought the total to 57 units. The applicant was awarded an additional 5 units under the education factor. The rationale for this low assessment was because the applicant had failed to complete the course which required one year of classroom study. Furthermore, the secondary studies upon which he was embarked did not lead to university entrance.

ISSUES

1.      Did the visa officer err in concluding that the applicant was not qualified in the occupation of budget accountant?

2.      Did the visa officer commit reviewable error in his method of assessing the applicant under the education factor?

3.      Did the visa officer commit reviewable error in his assessment under the personal suitability factor?

4.      Did the visa officer err in failing to exercise his discretion positively pursuant to subsection 11(3) of the Regulations?

ANALYSIS

1.      Budget Accountant

[6]      The applicant submits that the visa officer was in error in requiring compliance with the requirements of the C.C.D.O. In his submission, such compliance was not necessary in this case because of the applicant's background and experience. Alternatively, the applicant submits that he has complied with the training and entry requirements of a budget accountant.

[7]      I do not agree with these submissions. The C.C.D.O. provisions are binding on the visa officer. In Haughton v. Canada (M.C.I.), Rothstein J. concluded that "the C.C.D.O. is not merely a guideline, but is, as the applicant submits, a binding system of classification and assessment".¹ The visa officer in this case was obliged to assess the applicant pursuant to the C.C.D.O. requirements quite apart from the applicant's experience in accounting. With respect to the applicant's alternative argument, I agree with the visa officer's conclusion that the applicant had not met the C.C.D.O. requirements. The applicant's Form VI "O" level graduation does not meet the C.C.D.O. requirements because the applicant is unable to enter university in Hong Kong without first passing his "A" level examination.

[8]      It was also open to the visa officer to find, on this record, that the applicant had not followed a course of study and had not passed periodic examinations leading to membership in a provincial accounting association. The applicant has completed part of the Chartered Association of Certified Accountants (A.C.C.A.) course as well as some computer and management courses. However, it was reasonably open to the visa officer to find as he did, that this training was insufficient to enable the applicant to practice in his occupation.

2.      Education

[9]      The applicant submits that the visa officer was in error in failing to award the applicant 10 assessment units for the Form VI diploma which he possesses. Even accepting the applicant's submission, the addition of 5 units under education (the original assessment was 5 units) only gives the applicant a total of 55 assessment units. That total still leaves the applicant 10 units short of the number required for a successful assisted relative application.

[10]      Furthermore, even if the applicant had the required number of units, he could still not be qualified because he did not satisfy the requirements for 4 or 5 years of planned courses of study at home nor had he passed periodic and final examinations leading to membership in a provincial accounting association.

3.      Personal suitability

[11]      In the applicant's view, the visa officer erred in awarding the applicant only 6 units of assessment for personal suitability. The submission is that the visa officer placed undue weight on the applicant's lack of previous experience in immigrating to a country similar to Canada, and placed insufficient weight on his work experience, personal wealth, fluency in English, and the fact that a niece lives in Vancouver. The applicant also complains because he was awarded zero units for age assessment.

[12]      As noted by the Associate Chief Justice in Gill v. Canada (M.C.I.)² the legislation has vested "a broad discretion" in a visa officer in these circumstances. I agree with the Associate Chief Justice in his view that "provided that an opinion is reasonable, and is neither arbitrary, or capricious, there are no grounds to warrant judicial interference". On this record, I am persuaded that this visa officer's assessment of personal suitability was reasonably open to him. The visa officer asked the applicant how he would deal with the negative impact of his age when seeking employment in Canada. This issue was directly related to personal suitability since it is related to motivation and the ability to become established in Canada.

[13]      Accordingly, I find no reviewable error on this ground.

4.      Subsection 11(3) of the Regulations

[14]      Subsection 11(3) of the Regulations reads as follows:

A Visa Officer may

(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10

if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and these reasons have been submitted in writing to, and approved by, a senior immigration officer.

[15]      It is the applicant's submission that the visa officer erred by interpreting the test of "successful establishment in Canada" as being restricted to successful establishment in the workforce only. In the applicant's view, the words "successful establishment" should be given a broader meaning which would include not only the ability to make a living in the work force but would encompass the ability to sustain oneself without the aid of the state. In the applicant's view, the visa officer placed undue weight on the lack of a job offer or job search and ignored the applicant's skills, language ability, and extensive financial resources and capital which would enable the applicant to establish himself economically, even in the absence of being employed in the work force in Canada.

[16]      The visa officer, after having concluded that the applicant did not meet the minimal requirements for entrance, did not ignore the provisions of Regulation 11(3) supra. He took into consideration the applicant's high net worth (approximately 1.8 million dollars) and the applicant's pension (he and his wife will be entitled to receive pensions in excess of $70,000 - annually upon immigration to Canada). He also considered the negative impact the applicant's age would have on his ability to obtain employment in Canada. It was his view that the units of assessment awarded are an accurate reflection of the applicant's ability to successfully establish himself in Canada.

[17]      The visa officer, after a careful consideration of the relevant factors, in exercising his Regulation 11(3) discretion negatively, did not commit reviewable error. Such a conclusion was reasonably open to him on this record.

For the foregoing reasons, the within application for judicial review is dismissed.

CERTIFICATION

[18]      Counsel for the applicant submitted three proposed questions for certification pursuant to section 83 of the Immigration Act. I am not persuaded that any of these questions should be certified in the circumstances of this case. Accordingly, no questions are certified.

                         Darrel V. Heald                          Deputy Judge

OTTAWA, ONTARIO

November 5, 1997

__________________

     ¹      111 Federal Trial Reports 226 at p. 230.

     ²      IMM-1885-94, June 7, 1995.