Date: 20011024
Docket: IMM-1343-00
Neutral citation: 2001 FCT 1153
BETWEEN:
SUSAMMA VARGHESE NIRANSAN SHARMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicant seeks judicial review of a decision of a Visa Officer at the Canadian Embassy in Cairo, Egypt, wherein the Visa Officer denied the Applicant's application for permanent residence in Canada. The decision under review is dated the 18th of January, 2000.
[2] The Visa Officer awarded the Applicant 66 units of assessment including 6 units for "knowledge of English and French" and 4 units for "personal suitability". Seventy units of assessment are required to qualify for permanent residence in Canada, always subject to an exercise of positive or negative discretion under subsection 11(3) of the Immigration Regulations, 1978.
[3] In her application to come to Canada, the Applicant indicated that she spoke, read and wrote English fluently. If this had been verified, the Applicant would have been entitled to 3 units of assessment each based upon her speaking, reading and writing ability in one of the official languages of Canada. At interview, the Visa Officer determined that the Applicant spoke English "well" rather than "fluently". In the result, the number of units of assessment afforded the Applicant in relation to her speaking ability was reduced from 3 to 2.
[4] Without testing, the Visa Officer similarly reduced the Applicant's award of units of assessment in relation to her reading and writing ability. This reduction of units of assessment awarded for reading and writing from that which would have been awarded had the Applicant's claim to read and write English "fluently" been accepted was acknowledged before me to constitute an error[1]. However, since the maximum number of additional units of assessment that might flow to the Applicant if her claim to read and write English fluently were verified would be 2, counsel for the Respondent urged that the error was not a significant or determinative error.
[5] In her CAIPs notes regarding the factor of "personal suitability", the Visa Officer noted that the Applicant had received "negative replies" to employment enquiries that she had made in Canada. The Visa Officer noted that, in the result, in her opinion, the Applicant "... would not successfully establish in view of unrealistic expectations regarding her likelihood of obtaining employment in her specialized field in Canada".
[6] By contrast, the Applicant, in her affidavit filed on this application for judicial review, attests:She [the Visa Officer] then turned to me and asked whether I tried to get a job in Canada. I told her that I had applied for various research positions in various institutions in Canada through the Internet, and had received several favourable responses. I showed her the sent applications [sic] as well as the responses I received.
Unfortunately, the responses received are neither in the Tribunal Record or annexed as exhibits to the Applicant's affidavit.
[7] Clearly, the Visa Officer's interpretation of the responses received by the Applicant to various job enquiries is at odds with that of the Applicant. The Respondent chose not to file an affidavit of the Visa Officer on this application for judicial review. In light of that fact, I prefer the sworn interpretation provided by the Applicant over that reflected in the Visa Officer's CAIPs notes and conclude that the Visa Officer further erred in her assessment of the Applicant's personal suitability.
[8] The two errors taken together, that is, in respect of the Applicant's ability to read and write English and in respect of the Applicant's personal suitability are, I am satisfied, significant to the point of being determinative of this application for judicial review. A reassessment in the two areas of ability in an official language and personal suitability potentially could result in an award of units of assessment sufficient to qualify the Applicant for immigration to Canada. In the result, this application for judicial review will be allowed. The decision of the Visa Officer that is under review will be set aside and the Applicant's application for immigration to Canada will be referred back to the Respondent for redetermination.
[9] Neither counsel recommended certification of a serious question of general importance arising on this matter. No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
October 24, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1343-00
STYLE OF CAUSE: SUSAMMA VARGHESE NIRANSAN SHARMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, OCTOBER 23, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: WEDNESDAY, OCTOBER 24, 2001
APPEARANCES: Mr. M. Max Chaudhary
For the Applicant
Ms. Amina Riaz
For the Respondent
SOLICITORS OF RECORD: Chaudhary Law Offices
Barrister & Solicitor
18 Wynford Drive, Suite 707
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011024
Docket: IMM-1343-00
Between:
SUSAMMA VARGHESE NIRANSAN SHARMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER