Date: 19981022
Docket: IMM-3152-97
BETWEEN:
PRIYA RANJAN BARUA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
[1] This is an application for judicial review under section 18.1 of the Federal Court Act of a refusal by a visa officer in the Canadian Consulate in Dubai, United Arab Emirates to issue a visa to the applicant who had applied for admission to Canada as an independent applicant, together with his wife and children.
A. The Facts
[2] The applicant is a citizen of Pakistan working in Abu Dhabi as an airlines station agent with administrative responsibilities for the loading of catering supplies, cargo and passengers" baggage. He applied to immigrate to Canada in the independent category, and indicated that he intended to pursue the occupation of station agent in Canada. Having passed the paper screening, he was interviewed in June 1997 by Mr. Boekhoven, a senior immigration officer.
[3] In his affidavit, Mr. Boekhoven stated that he had called the applicant for an interview in order to assess his qualifications for his intended occupation and to assign units of assessment, or points, in the category of personal suitability. In a letter dated June 24, 1997, Mr. Boekhoven advised the applicant that he did not meet the requirements for immigration to Canada. More specifically, he had been awarded a total of 68 units of assessment, two short of the 70 normally needed for independent applicants to be issued with a visa.
[4] In his affidavit, Mr. Boekhoven explained the basis of his assessment of the applicant"s personal suitability as follows:
| "I assessed the personal suitability of the applicant to become successfully established in Canada based on his motivation, initiative, resourcefulness and other similar qualities. The applicant had never previously travelled to Canada. He has demonstrated little other initiative with respect to his proposed move to Canada. He knew little about Canada. I note that he had no family support in Canada. Despite the positive elements evident in this case, I concluded the settlement prospects were not more than average and awarded 6 units of assessment for the factor "Personal Suitability"." |
B. The statutory framework
[5] Applicants for admission to Canada in the independent category must be assessed by reference to criteria that are prescribed in Schedule I of the Immigration Regulations, 1978 [SOR/78-172] [as amended] [hereinafter Immigration Regulations or Regulations]. These criteria are: education; education and training; experience; occupational factor; arranged employment or designated occupation; demographic factor; age; knowledge of English or French; and personal suitability. The Schedule also assigns a maximum number of points to each criterion. As already noted, the minimum number of units normally needed for admission in the independent category is 70, although officers have a certain amount of discretion in this regard under subsection 11(3) of the Regulations.
[6] Because of its central place in this litigation, I shall set out in full the statutory description of item 9, "Personal Suitability" of Schedule I of the Regulations:
| "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." |
A maximum of 10 points is assigned to this item.
[7] The other provision relevant to this application for judicial review is paragraph 10(1)(b) of the Immigration Regulations, which provides that a visa officer may issue a visa to an "assisted relative" who has been awarded at least 65 units of assessment. In other words, an assisted relative receives a "bonus" of 5 points. "Assisted relative" is defined in section 2 of the Regulations to include an applicant who has in Canada a person who stands in one of several defined family relationships to the applicant, and who is a Canadian citizen and resides in Canada, or is a permanent resident.
C. The issue
[8] In his oral argument counsel for the applicant attacked the visa officer"s negative decision on essentially one ground, namely that the visa officer had erred in law in assessing the number of points awarded to the applicant for item 9, "Personal Suitability". In particular, he argued, it was a reviewable error for the officer to include under this item, as a negative consideration, the fact that the applicant had no family support in Canada, since this had already been taken into account when the applicant failed to qualify for the bonus 5 points awarded to an assisted relative under paragraph 10(1)(b ). This, counsel contended, was "double counting", and not permitted.
[9] Accordingly, the issue to be decided in this case is whether the visa officer erred in law by taking into account under item 9 a factor, namely, the absence of family support in Canada, that was legally irrelevant because it had already been taken into consideration under paragraph 10(1)(b) of the Regulations.
D. The case law
[10] Although rather narrow in scope, the issue of "double counting" has been the subject of several judgments, not all of which are easy to reconcile. The applicant relied heavily on Zeng v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 167 (F.C.A.) [hereinafter Zeng], in which the Court of Appeal set aside a refusal by a visa officer to issue a visa, on the ground that the officer had erred in law in taking into account under the heading of personal suitability the fact that the applicant had no relatives in Canada, spoke very limited English and no French, and had not arranged employment in Canada. The officer stated that he had taken these factors into consideration because they were "special circumstances not reflected in the point assessment."
[11] The Court of Appeal in Zeng held that the officer had erred in his belief that these factors are not specifically identified elsewhere:
| "... the point assessment provided by the Schedule cannot be said not to take account of the fact that an applicant has no relatives in Canada or has difficulty communicating in English and no French at all. Those |
considerations are properly to be taken into account in the awarding or
withholding of units of assessment under those items of the Schedule and
the visa officer had no discretion to take them into account in his
assessment under item 9, Personal Suitability, ... .
...
| Failure or refusal to arrange employment results in the applicant not being awarded 10 points; it is not a proper exercise of discretion, in assessing an applicant"s personal suitability, to take that failure into account a second time ... . " |
...
| Furthermore, none of linguistic accomplishment, arranged employment and family circumstance is "similar qualities" to the qualities required to be taken into |
account under item 9."
[12] The Zeng decision was recently followed by Hugessen J. in B"Ghiel v. Canada (Minister of Citizenship) [1998] F.C.J. No. 1023 (F.C.T.D.) [hereinafter B"Ghiel], where the officer was held to have "double counted" the absence of relatives in Canada and the applicant"s failure to demonstrate that he would be able to obtain employment in Canada. Unlike the situation in Zeng (supra) , however, there was no suggestion that the officer thought that these matters had not been taken into account in categories other than item 9, personal suitability.
[13] After noting that "double counting" is prohibited in the assessment of points, Hugessen J. qualified the scope of his holding by saying that:
| "It is, of course, permissible to take into account factors which may have been taken into account for other reasons in other parts of the schedule but I am quite unable to distinguish what the Visa Officer says in her letter in the quoted portion from what she was required to assess under Factor 4. Furthermore, a failure to demonstrate an ability to obtain employment in Canada is also not a personal "quality" similar to those listed in Factor 9." |
What seems to be contemplated here is that the officer"s decision would not have been erroneous in law if he had directly related the applicant"s lack of family in Canada and a failure to demonstrate an ability to find employment to the factors set out in item 9, namely adaptability, motivation, initiative, resourcefulness and other similar qualities.
[14] In fact, in B"Ghiel (supra), the officer had ended her letter of decision by saying: "for all these reasons, you have shown a lack of motivation, adaptability and resourcefulness." However, the fact that the officer had used the same words in the Personal Suitability assessment as appeared in the specific items in the Schedule must have persuaded Hugessen J. that the officer had not taken different aspects of the same matter into consideration for different purposes. Moreover, as he points out, a lack of relatives is not a quality that is "similar" to the personal qualities listed in item 9, namely, motivation, initiative, adaptability and resourcefulness.
[15] Visa officers" decisions have been set aside for "double counting" in other cases as well: see, for example, Chartrova v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 59 (F.C.T.D.) and Lo v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 864 (F.C.T.D.). In these cases, the visa officer had neither related the factors to the personal qualities listed in item 9, nor explained that they constituted "other similar qualities".
[16] On the other hand, there are several decisions in which it has been held that visa officers did not err, even though they took into account under item 9 factors that are specifically assessed under other items. Thus, in Nassrat v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 1 (F.C.T.D.), Wetston J. held that, even though the officer had taken into consideration under the personal suitability category factors assessed specifically under other items, the officer was not guilty of "double counting":
| "The visa officer found that the applicant did not demonstrate sufficient initiative, resourcefulness, and motivation with respect to obtaining employment opportunities in Canada. The respondent contends that this is a separate matter than underpinned the visa officer"s concerns regarding the applicant"s personal suitability to successfully establish in Canada, where a positive discretion would have to be exercised under the Act and Regulations. I can find no error in the approach by the visa officer in this case." |
[17] Simpson J. reached the same conclusion in Bhatia v. Canada (Minister of Citizenship and Immigration) (1996), 121 F.T.R. 86 (F.C.T.D.), where, in rejecting an allegation of "double counting" by the officer, she said:
| "There may be situations in which family support is so generous that it reduces an applicant"s motivation. That appears to have been the case here." |
Accordingly, she held that the officer had quite correctly awarded 5 points for the presence of family in Canada under the "bonus" category for assisted relatives, but then under the item for personal suitability regarded their support as a negative indicator of the motivation needed for the applicant to become established in Canada.
[18] The Court was similarly satisfied that the visa officers addressed factors relevant under item 9 when taking into consideration facts assessed independently under their specific items in Vasilev v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 62 (F.C.T.D.) and Hussain v. Canada (Minister of Citizenship and Immigration) (1997), 36 Imm. L.R. (2d) 232 (F.C.T.D.).
[19] On the basis of the above authorities, it would seem clear that, as a matter of principle, a visa officer may have regard, in the category of "personal suitability", to an aspect of something that has already been assessed, provided that this aspect can be related to the applicant"s motivation, adaptability, resourcefulness, initiatives and "other similar qualities" that will enable the applicant to become economically established in Canada. However, I fail to see that the fact that an applicant has no family support in Canada, because there are no relatives here, can have a "personal suitability" aspect.
[20] To the extent that the absence of relatives may make it more difficult for a potential immigrant to become established in Canada, it is a factor that must apply to all applicants without relatives here. It is not a factor that is "personal" to the particular applicant. In other words, all those who have not obtained the 5 bonus points as an assisted relative will have the very same fact, the absence of relatives in Canada, also counted against them under item 9. This seems to me precisely the kind of "double counting" that has been held to be impermissible.
[21] I conclude, therefore, that the visa officer erred in law when he included under the assessment of the applicant"s personal suitability to become successfully established in Canada the fact that the applicant had "no family support in Canada" [as stated in the visa officer"s affidavit], or "no family in Canada" [as recorded in the visa officer"s own notes]. Finally, I should consider whether this error is sufficient to invalidate the refusal of a visa, since the visa officer also took other apparently more important and relevant considerations into account in the assessment of the applicant"s personal suitability: the fact that the applicant had never travelled to, and knew little about Canada, and had demonstrated little other initiative with respect to his proposed move to Canada.
[22] In B"Ghiel (supra), Hugessen J. stated that, since it is impossible to tell how much weight an officer assigned respectively to the relevant and irrelevant considerations that were taken into account, a reviewing court should not speculate on whether the officer"s decision would have been different if the irrelevant factor had been excluded from consideration. This is an obviously sound general principle. However, in this case it is important to note that the visa officer awarded to the applicant a total of 6 out of a possible 10 units of assessment for personal suitability. On the basis of the evidence before me, this is a rather generous assessment. I find it inconceivable that the visa officer would have awarded two more units of assessment for personal suitability, which the applicant needed to become entitled prima facia to a visa, if the visa officer had omitted the applicant"s lack of relatives in Canada from the several factors that he considered when assessing personal suitability.
[23] In conclusion, therefore, I exercise my discretion not to quash the visa officer"s refusal of a visa, on the ground that his error was immaterial to the ultimate decision. Accordingly, the application for judicial review is dismissed.
OTTAWA, ONTARIO John M. Evans
October 22, 1998. J.F.C.C.