Date: 20020509
Docket: IMM-5465-00
Neutral citation: 2002 FCT 536
Ottawa, Ontario, Thursday the 9th day of May 2002
PRESENT: The Honourable Madam Justice Dawson
B E T W E E N:
VISHNU DEV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] A visa officer assessed Mr. Dev's application for permanent residence in the independent category under the intended occupation of Priest, NOC 4154, and awarded him 65 units of assessment. Because this was 5 units less than the 70 units prima facie required by subparagraph 9(1)(b)(i) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations") Mr. Dev's application was rejected. Mr. Dev says that the visa officer committed a reviewable error in the conduct of the assessment by only awarding him 1 unit of assessment under the factor for personal suitability.
[2] To appreciate that submission, a brief review of the relevant facts and the visa officer's decision is necessary.
BACKGROUND
[3] Mr. Dev is a citizen of India who came to Canada in 1998 to visit his daughter, a Canadian citizen. Starting in November of 1998, he volunteered as a priest at the Jai Durga Hindu Society in Scarborough, Ontario. In July of 1999, he was offered a permanent position with the temple at a salary of $1,250 per month, plus free living accommodation. On September 23, 1999, Mr. Dev submitted an application for permanent residence in Canada.
THE VISA OFFICER'S DECISION
[4] The officer noted the following in her Computer Assisted Immigration Processing System ("CAIPS") notes:
[H]e says [after being advised that he had not obtained sufficient units to meet the requirements] that he has paid lots of money for immigration process. He says wife and son can work too. I point out that according to her application, his wife has no education, and probably no [E]nglish, and is 60 years old. Therefore, her chances of finding employment to contribute to the family income is very slim. I point out that salary offered is $15,000 year plus accom[m]odation. This is below poverty level in Toronto. He has a family of five. The son may be able to contribute as soon as he completes his education, but the two girls are only 12 and 9 and will require schooling as well as everyday necessities for many more years. Now he says that temple will provide food too. This is not in the letter of employment. He says that he has 2 Lacs (eqv to $6521 cdn) to bring to Canada and some property to sell (no proof).
Even with job waiting for him, he has insufficient funds for initial settlement.
[5] Those notes are capable of being received as reasons for the visa officer's decision. See, for example, Tajgardoon v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 591 (T.D.) and Chou v. Canada (Minister of Citizenship and Immigration), 2001 FCA 299; [2001] F.C.J. No. 1524.
[6] With respect to personal suitability, the visa officer swore in her affidavit as follows:
Motivation, initiative, resourcefulness and adaptability were not evident. I awarded the applicant one unit of assessment for personal suitability. I believe that the units accurately reflect his ability to successfully establish in Canada, notwithstanding the job offer. The offer is at minimum wage, and he has 4 dependents to support in the Greater Toronto Area. He is 62 years old, has been in Canada for two years and did not express one word of English during the course of his interview. The Applicant took no steps to upgrade his language skills.
In his affidavit, the applicant states that he has proven his motivation, initiative, resourcefulness and adaptability because he has been living and working as a priest in Canada for two years. But I point out, that he has been living alone, without dependents, and earning $1250 month. He has not faced the added concern and needs that a family requires. Upon landing, he would be the sole provider for a wife who may be unemployable, a son who is a full time post secondary student (with tuition requirements), and two minor granddaughters. I had to consider the needs of the family in determining his ability to successfully establish in Canada.
ISSUES
[7] In attacking the visa officer's decision, counsel for Mr. Dev argued that:
i) The visa officer erred in minimizing or ignoring the fact that Mr. Dev had been employed continuously in the same job since arriving in Canada in 1998, had successfully run the temple during this time, and had been offered a full-time position there. Mr. Dev's knowledge of English and his age were not relevant considerations, as they are not components of his job.
ii) Personal suitability must be assessed in relation to the ability of an applicant to become successfully established in Canada based on the applicant's adaptability, motivation, initiative, resourcefulness and other similar qualities. In the present case, age and language were non-economic factors not relevant to Mr. Dev's adaptability, motivation and resourcefulness.
iii) The visa officer engaged in impermissible double counting of age and language.
STANDARD OF REVIEW
[8] There is some conflict in the case law on the standard of review to be applied to the exercise of discretion by a visa officer. However, the Federal Court of Appeal held in Jang v. Canada (Minister of Citizenship and Immigration), 2001 FCA 312; [2001] F.C.J. No. 1575 at paragraph 12 that:
An application to be admitted to Canada as an immigrant gives rise to a discretionary decision on the part of a visa officer, which is required to be made on the basis of specific statutory criteria. Where that statutory discretion has been exercised in good faith and in accordance with the principles of natural justice and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, courts should not interfere (Maple Lodge Farms Limited v. Government of Canada et al [1982] 2 S.C.R. 2 at pages 7-8; To v. Canada, [1996] F.C.J. No. 696 (F.C.A.).
[9] Any doubt as to the relevance of Maple Lodge, supra, after the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 appears to have been addressed by the Supreme Court in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 where the Court wrote at paragraph 37 that:
The passages in Baker referring to the "weight" of particular factors (see paras. 68 and 73-75) must be read in this context. It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors: see Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.); Sheehan v. Ontario (Criminal Injuries Compensation Board) (1974), 52 D.L.R. (3d) 728 (Ont. C.A.); Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Dagg, supra, at paras. 111-12, per La Forest J. (dissenting on other grounds).
ANALYSIS
[10] I have not been persuaded that the visa officer committed any reviewable error.
[11] Dealing with Mr. Dev's specific concerns, the visa officer did take into account that Mr. Dev had been volunteering at the temple for two years and that he had been offered a full-time, paid position there.
[12] Age and language may be relevant to an applicant's ability to succeed in the Canadian economy. Mr. Dev's relatively advanced age and limited English skills are relevant in this case because they impact on his ability to find employment outside of the temple and to establish himself before retirement.
[13] While it is true that age and language are assessed as separate factors pursuant to subsection 8(1) of the Regulations, a visa officer does not double count those factors when assessing personal suitability if they are used to elucidate motivation, adaptability, resourcefulness or initiative. I am satisfied that it was for that purpose that the visa officer had regard to age and language when considering personal suitability.
[14] For these reasons, I am satisfied that the decision is not unreasonable on its face, unsupported by the evidence, or vitiated by failure to consider the proper factors or the consideration of improper factors. It follows that the application for judicial review will be dismissed.
[15] Counsel did not ask that any question be certified.
ORDER
[16] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question is certified.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5465-00
STYLE OF CAUSE: Vishnu Dev and the Minister of Citizenship
and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 30, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE DAWSON
APPEARANCES:
Mr. Ravi Jain FOR APPLICANT
Ms. Alexis Singer FOR RESPONDENT
SOLICITORS OF RECORD:
Green and Spiegel FOR APPLICANT
Barristers and Solicitors
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada