Date: 20000719
Docket: IMM-4004-99
BETWEEN:
SYED KHURSHID ANWER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Syed Khurshid Anwer, the applicant in this proceeding, is a 50 year old citizen of Pakistan who applied for permanent residence in Canada within the independent category (assisted relative) as an Agricultural Representative, Consultant and Specialist (National Occupational Classification 2123).
[2] On July 5, 1999, Marcel Perron, a visa officer at the Canadian High Commission in Islamabad, Pakistan, decided that the application of Mr. Anwer should be refused. Mr. Anwer brought this application for judicial review in respect of that decision.
[3] At the conclusion of oral argument, I advised counsel that, for reasons to be delivered, I would be dismissing the application for judicial review. These are the reasons for my decision.
THE FACTS
[4] On the assessment of the visa application, Mr. Anwer achieved only 65 units of assessment, including 5 bonus units as a result of having a relative in Canada. He was, therefore, 5 units short of the 70 units required for a successful application.
[5] Of relevance to this application is the assessment of the visa officer whereby he granted Mr. Anwer 0 units under the personal suitability factor and 13 units for education.
[6] With respect to the assessment of personal suitability, in the affidavit sworn in opposition to this application, Mr. Perron swore as follows:
| 9. The Applicant argues that he should have received units of assessment under suitability because he is well educated, experienced and qualified in his occupation, fluent in English and that he has a relative in Canada. The Applicant was allotted the maximum units of assessment under occupation, experience, language and received the 5 units of assessment for a relative in Canada and, in my opinion, appropriate units of assessment for education as explained above. |
| 10. The Applicant had two years to prepare for the interview but he had no knowledge of Canada and what the labour market had to offer him. He demonstrated a flagrant lack of initiative as he did not know where were the areas of Canada which would offer him the best prospects of employment in his field of expertise. Instead, he was destined to an urban area, Toronto. He did not know the major agricultural products of Canada. He also demonstrated a lack of resourcefulness in that he made no effort to acquire knowledge and skills to make himself more adaptable to the Canadian labour market such as computer literacy. I did not award the Applicant any points for personal suitability as I believe that this 50 year old Applicant with dated experience will have a great deal of difficulty in landing a job in his intended occupation. |
| 11. In my opinion, the Applicant showed an overall lack of adaptability, motivation, initiative and resourcefulness. He was very difficult to interview in that he would not elaborate on his plans and objectives and I concluded that he did not have any other reason than leaving Pakistan. I found him to be totally unprepared to immigrate to Canada as an independent given his age, dated experience and education and hence, unsuitable for immigration and I refused his application. |
[1] This evidence is consistent with the CAIPS notes wherein it is stated that: " I cannot give him any points on personal suitability as I believe that this 50 year old who has dated experience will have a great deal of difficulty in landing in job in his intented [sic] occupation".
[2] As to the assessment of Mr. Anwer"s educational qualifications, the visa officer swore in his affidavit filed in opposition to this application for judicial review that:
| 7. The education documents in support of this application raised some doubts that they were obtained from the Bangladesh Agricultural University of Mymensingh which was part of Pakistan at that time. According to these documents, the Applicant completed Matriculation at the age of 13, completed his Bachelor degree at the age of 18 and his Master degree at the age of 19. As this is highly unusual, the documents were sent for verification; however, we never received an answer from Dacca. We were therefore unable to assess conclusively the educational credentials of the Applicant. Nevertheless, he was granted 13 units of assessment on the basis that his total years of study appears to be equivalent, at best, to graduation from a Bachelor degree. |
THE ISSUES
[3] In attacking the officer"s refusal, Mr. Anwer asserted that:
| 1. In basing the finding of personal suitability on dated experience and age, the officer engaged in double counting; |
| 2. It was perverse or capricious to find that Mr. Anwer merited no points out of the possible 10 for personal suitability; |
| 3. The officer breached a duty of fairness in failing to communicate his concerns with respect to the applicant"s training and capabilities so as to allow Mr. Anwer the opportunity to disabuse him of those views; and |
| 4. The officer erred in his assessment of 13 units for education in view of the applicant"s advice that he had completed a three year bachelor of science degree. |
ANALYSIS
(i) The Assessment of Personal Suitability
[4] In Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1080 (F.C.T.D.), Dubé, J. noted:
| [6] The assessment of personal suitability is entirely within a visa officer"s scope of expertise and should not be interfered with unless the finding is perverse or capricious, or unless the visa officer committed an error of law. "Double-counting" on the part of the visa officer would be an error of law. In other words, specific factors such as education, language, occupational demand or any of the other five factors outlined in Schedule I already assessed separately cannot be "double-counted" when assessing an applicant"s personal suitability*(2) . Such factors may be considered under personal suitability only insofar as they elucidate the applicant"s adaptability, motivation, initiative, resourcefulness and similar qualities. For example, an applicant who resides in an English-speaking country for several years without learning the language demonstrates less adaptability on his part. A visa officer makes no error in considering the separate factors from this perspective*(3). [footnotes omitted] [underlining added] |
[5] The visa officer was not cross-examined on his affidavit. I accept his evidence that having allotted the applicant the maximum units of assessment under occupation, experience and language, the visa officer"s consideration of the factors of age, experience and education in the context of the personal suitability factor was directed to and considered from the perspective of elucidating, to use the language of Justice Dubé, Mr. Anwer"s adaptability, motivation, initiative, resourcefulness and similar qualities.
[6] Mr. Anwer, in the affidavit he filed in support of this application, swore that:
| 3. In his refusal letter the officer awarded me no points for personal suitability. I am astounded by this. I am a very well educated person with a Master of Science Degree in Agriculture from a recognized university in Pakistan; employment in my field as an entomologist for twenty-five years; acceptance by the visa officer of my intended occupation and the maximum (8) units for experience in my occupation; transferable funds of $23,000 CAN, and a brother-in-law residing in Canada, fluency in English at all levels. I cannot imagine that with all of this the visa officer awarded me zero points out of ten for personal suitability. |
[7] I accept the submission of counsel for the Minister that, in pointing to his education, employment experience, fluency in English and a brother-in-law residing in Canada, the applicant in effect sought double counting of those factors under the criterion of personal suitability.
[8] In view of the unchallenged testimony of the visa officer to the effect that he found Mr. Anwer to be totally unprepared to immigrate to Canada as an independent, and that Mr. Anwer demonstrated a "flagrant lack of initiative", I cannot conclude that the visa officer"s decision was so unreasonable as to warrant intervention by this Court.
(ii) The Alleged Breach of the Duty of Fairness
[9] With respect to Mr. Anwer"s complaint that the visa officer failed to indicate his concerns relating to personal suitability to Mr. Anwer, I note that other than the evidence previously set out from Mr. Perron"s affidavit, there is no evidence before the Court as to what transpired at Mr. Anwer"s interview. Mr. Anwer made no complaint in his affidavit of not being permitted to address Mr. Perron"s concerns.
[10] Further, jurisprudence from this Court, including Bara v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 992 (F.C.T.D.) establishes that a visa officer is not required to put before a visa applicant tentative conclusions he may be drawing from the material before him.
[11] Accordingly, I cannot find on the record evidence of any breach of the duty of fairness.
(iii) The Assessment of Educational Qualifications
[12] Finally, with respect to Mr. Anwer"s concerns in respect of the granting of 13 units for education, the evidence of Mr. Perron set out in paragraph 7 of his affidavit, quoted above, was not challenged by Mr. Anwer.
[13] I am unable to conclude that in those circumstances, the visa officer"s assessment was so unreasonable as to attract intervention.
[14] Despite the very able submission of Mr. Anwer"s counsel, I was simply not persuaded that the visa officer erred in law, or was unreasonable in his appreciation of the facts. For this reason, the application for judicial review is dismissed.
[15] I agree with counsel for both parties that this application does not raise any question of general importance to be certified.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
July 19, 2000