Federal Court Decisions

Date: 20020215

Docket: IMM-4639-00

Neutral citation: 2002 FCT 174

BETWEEN:

                                                                    KANGSHENG LI

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 By this application for judicial review the applicant seeks an order setting aside the decision, dated July 31, 2000, of a visa officer at the Canadian Consulate General in Hong Kong whereby the applicant's application for permanent residence in Canada was refused.

[2]                 The applicant is a citizen of China. He is a mechanical engineer with a bachelor's degree who was employed at a shipyard in Guangzhou, China, from 1988 to 1999 in positions of increasing responsibility. At the time of his application he was vice manager of the shipyard's technical department. His professional qualifications were found to be acceptable to the Canadian Council of Professional Engineers.

[3]                 In February 1999 he applied, at the Consulate General in Hong Kong, for permanent residence in Canada, seeking admission as an independent candidate under the National Occupation Classification number 2132 as a Mechanical Engineer. The application was assessed on April 15, 1999 and Mr. Kangsheng Li was then given the opportunity to take the General Training English Test of the International English Language Testing System. Results of that test were received at the Consulate General in January 2000 and the applicant was then scheduled to be interviewed on July 27, 2000.

[4]                 The applicant, his wife and child attended the scheduled personal interview with the visa officer in Hong Kong. At the time of the interview the applicant was studying English on a part-time basis at a night school while continuing to work full-time, as he had done since completing the test some months earlier. He had noted in his application that he could speak, write and read English well.

[5]                 At the interview the visa officer assessed his language abilities, concluding that he spoke English well, wrote it "borderline well", but read it with difficulty. In the result he was assigned 2 units of assessment for his abilities in English, in accord with guidelines included in Schedule I of the Immigration Regulations, 1978 ("the Regulations").

[6]                 In relation to personal suitability, the visa officer, by her affidavit, states that she fully considered his abilities and preparation to establish himself in Canada. The visa officer was concerned that the applicant had not travelled outside of China, had worked "all his life"

(i.e. 11 years, as correctly noted in her CAIPS notes) for the same employer, after assignment by government to that employer, and he had no experience in searching for a job. Moreover, his English showed little improvement over the months from the time he was tested, and his expectations of finding engineering work within a year after arrival in Canada were not realistic in the officer's view. This assessment led the officer to award the applicant 3 units of a possible 10 for personal suitability.

[7]                 The officer avers by her affidavit that she informed the applicant at the interview that his application was refused and that she explained her concerns about difficulties he would face if he sought to establish himself and his family in Canada.

[8]                 In a letter dated July 31, 2000 the visa officer set out her assessment of the applicant and that assigned to the various factors she was required to consider. We have referred to her assessments of his English language abilities and his personal suitability. For a number of the other factors he was assessed reasonably highly, but his total assessment of 68 units was less than the minimum of 70 required for independent applicants. Being assessed at less than the minimum, the applicant was not admissible to Canada and his application was refused.

[9]                 In her CAIPS notes, made on the day of the interview, the visa officer recorded a number of positive and negative comments about the applicant's personal suitability. The notes do not include two considerations set out in her subsequent affidavit, sworn some months after the interview, about the applicant's lack of experience in finding a job and the visa officer's belief that the applicant's expectations of finding work within a year were unrealistic.

[10]            Counsel for the applicant obtained, pursuant to a request under the Access to Information Act, R.S.C. 1985, c. A-1, as amended, a 1998 survey conducted within Citizenship and Immigration Canada, concerning personal suitability units assigned by visa officers of the Canadian Consulate General in Hong Kong, to applicants for permanent residence. The results of the survey indicated that 8% of those applicants were awarded 3 units or less, and 75% were awarded 5 or more units.   

[11]            The applicant raises issues concerning the assessment of the applicant's personal suitability, urging that the officer's assessment was unreasonable, and that it was conducted in a manner that breached the duty of procedural fairness owed to him.

[12]            For the applicant it is acknowledged that the standard of review of the discretionary decision of a visa officer has been established and that the applicant must show either an error of law which is apparent on the face of the record or that there was a breach in the duty of fairness owed to the applicant.

[13]            The applicant submits, referring to Goyal v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm L.R. (3d) 238, Luo v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 170 and Maniruzzaman v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 139, that where an applicant is just one or two points short of the total units required for admission, particularly where there is a low rating of personal suitability, the Court should carefully review the overall assessment. In my view each of these cases stands for more than the proposition that an overall assessment close to but less than the minimum required warrants review. Thus in Goyal, Mr. Justice Linden found that vital, relevant evidence had been overlooked. In Luo Madam Justice Tremblay-Lamer found that the officer had considered negatively the fact that the applicant had never visited Canada, a fact that the Court considered irrelevant. In Maniruzzaman Madam Justice Reed found that the visa officer placed inordinate weight upon factors which were relevant but not central to consideration of personal suitability.

[14]            I turn to consideration of the officer's assessment of personal suitability in the assessment of Mr. Kengshen Li. He submits that the visa officer's assessment was unreasonable in that, having listed in her CAIPS notes a number of positive comments concerning his personal suitability and a number of negative comments, an assessment of 3 units was unreasonably made based upon certain negative comments. Thus it is said that it was unreasonable for the visa officer to assess negatively the fact that the applicant had worked for the same employer since 1988, that the applicant had never travelled outside mainland China, and that his English reading and writing tests at the interview showed no improvement from the time of his first testing some seven months earlier. Those factors were relied upon for the assessment of 3 units, a result that the applicant submits was unreasonable, particularly in light of the officer's failure to properly weigh the evidence of his increasing responsibility, with 4 promotions over 11 years, in his employment at the shipyard.

[15]            Under s. 8 and Schedule I of the Regulations, among the factors to be assessed by a visa officer for applicants for permanent residence in Canada is personal suitability, in accord with that Schedule:

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.		Des points d'appréciation sont attribués au requérant au cours d'une entrevue qui permettra de déterminer si lui et les personnes à sa charge sont en mesure de réussir leur installation au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et autres qualités semblables.

That factor is a key element in assessing the likelihood of an applicant's satisfactory establishment in Canada. While the officer's letter of refusal referred only to the fact that the applicant's overall assessment was below the minimum 70 points required for applicants in the independent category, by her affidavit the visa officer makes clear that she carefully assessed various factors and that the applicant's personal suitability was graded after full consideration of his abilities and preparation to establish himself in Canada. The factors then mentioned, that he had not travelled outside China, that he had worked for the same employer who had been assigned to him by government so that he had no experience in searching for a job, and that his English did not show much improvement despite having taken courses, led her to conclude that his expectations for finding engineering work within a year in Canada were unrealistic.

[16]            In the circumstances I am not persuaded that the considerations mentioned by the visa officer are irrelevant, any more so than were the considerations set out positively in her CAIPS notes concerning the applicant's personal suitability. It was not patently unreasonable, or even unreasonable for her to assess personal suitability as she did. That assessment is a matter of discretion, the exercise of which was made with reference to evidence before the officer. The Court might weigh the evidence differently if that were its task, but that is not the test I must apply. I am not persuaded that there is any basis for the Court to intervene on the ground that the assessment of personal suitability was unreasonable or without regard to the evidence.

[17]            The applicant also submits that the visa officer breached her duty of procedural fairness by not informing him of her concerns about his application and then providing him with an opportunity to respond before concluding her assessment. It is clear that such a duty arises where the officer relies upon evidence or information not before her or of which the applicant is not aware. Yet that same duty does not arise in relation to the officer's assessment of the evidence from documents and from the interview of the applicant (see Parmar v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 203).

Conclusion

[18]            For the reasons here set out I am not persuaded that the visa officer erred in law or neglected her duty of procedural fairness owed to the applicant. Thus the application for judicial review is dismissed by separate order.

                                                                                                                              (signed) W. Andrew MacKay

                                                                                                        _____________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

February 15, 2002.