Date: 20021209
Docket: IMM-4771-01
Neutral citation: 2002 FCT 1279
Ottawa, Ontario, December 9, 2002
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
CHEN, XUEMING
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Eliane Wassler, an immigration officer employed at the Canadian Embassy in Berlin, dated September 19, 2001, wherein she refused the applicant's application for permanent residence in Canada.
[2] The applicant, Mr. Xueming Chen, is a 42-year-old citizen of the People's Republic of China.
[3] He made an application for permanent residence in Canada which was received at the Immigration section of the Embassy of Canada in Berlin on May 17, 1999.
[4] On his application, he stated that his intended occupation in Canada was that of Mechanical Engineer, National Occupational Classification ("NOC") 2132.
[5] On September 11, 2001, the applicant and his wife were interviewed by visa officer Eliane Wassler.
[6] The visa officer awarded the applicant the following units of assessment for the occupation of Mechanical Engineer, NOC 2132:
Age 10
Occupational Factor 05
Education and Training 17
Experience 02
Arranged Employment 00
Demographic Factor 08
Education 16
English 06
French 00
Bonus 00
Personal Suitability 04
TOTAL (minimum required: 70) 68
[7] The applicant was refused permanent residence because of insufficient units of assessment.
[8] The applicant first submits that the visa officer erred in awarding him only 2 units for Experience. He highlights the fact that he worked as an engineer from June 1988 to November 1990, a period of 2 ½ years. As such, pursuant to paragraph 3(d) of Schedule I of the Immigration Regulations, 1978 (SOR/78-172), (the "Regulations") he should have received 4 units under the Experience factor (2 units for each year of experience). Had this mistake not been made, he would have scored 70 points which would have entitled him to a visa. The applicant argues that the visa officer erred in awarding him only 2 units for Experience, and that her decision was perverse. I disagree.
[9] The visa officer considered all of the applicant's work experience during the interview, but was not satisfied that he had performed a substantial number of the main duties set out in the NOC under Mechanical Engineer. She concluded that the applicant's work experience was related to research, design and development, and that his work experience fell within the scope of the job duties of Lecturer, University, not that of a Mechanical Engineer.
[10] Nevertheless, the applicant attempted to convince the visa officer that during his 2 ½ year work period, he was involved in part time research for the private industry. She gave him the benefit of the doubt and awarded him 2 units for one year of work experience.
[11] I cannot find any error in the visa officer's decision to award the applicant 2 units for experience.
[12] The applicant also challenges the visa officer's assessment of his personal suitability on three grounds: the visa officer improperly exercised her discretion when she determined that his failure to look for work indicated a lack of motivation; she double counted the age factor and the experience factor; and she failed to consider the qualities of the applicant's spouse. I will now deal with each of these issues.
[13] The applicant first argues that given his special qualifications, his success in his career, and the high demand for mechanical engineers, the visa officer should have envisaged that he may not have researched the Canadian job market because the demand is such that he could have found work on his own terms. As such, the visa officer improperly exercised her discretion. I disagree.
[14] This Court has held that an applicant's failure to research employment opportunities can demonstrate a lack of motivation and initiative, and can result in the granting of fewer units for personal suitability. In Yin v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 109, Rouleau J. held at para. 13:
[...] Personal suitability is a factor which allows the visa officer to form an opinion as to whether an applicant possesses the qualities required to establish him or herself in Canada on an economically independent basis. Clearly, the extent to which an applicant researches job opportunities and the Canadian labour market is indicative of his or her motivation and initiative, and is a perfectly relevant consideration under the personal suitability factor.
[15] Thus, I cannot find any error with respect to the visa officer's assessment of 4 units for personal suitability in light of the applicant's failure to research for job opportunities in Canada.
[16] As to the allegation that the visa officer erred by double-counting the age factor and the experience factor, it is also ill-founded.
[17] The case law on double counting was summarized by Pinard J. in Ajmal v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 26 at para. 10:
I now turn to the question of double counting of the applicant's education and lack of relatives in Canada. Notwithstanding the general principal that a visa officer cannot engage in double counting when assessing an applicant on the basis of the criteria outlined pursuant to subsection 8(1) of the Regulations, it has been established by the case-law that it is acceptable to consider one of the other enumerated factors in assessing personal suitability, so long as it is appraised from a different perspective. [...]
[18] In the case at bar, the applicant had received the maximum 10 units of assessment for age. Therefore, he cannot argue that he was penalized twice for the same criteria because he was not penalized under the age factor.
[19] With respect to the visa officer's comment that the applicant had "never worked outside the university field", I am also of the view that this does not constitute double counting. The fact that the applicant had never worked outside the university field was an important consideration in assessing his motivation and initiative, because it demonstrated that he had never worked nor sought employment in the private industry.
[20] The applicant finally submits that the qualities of his wife should have contributed to a higher score for personal suitability. He emphasizes the fact that she is a University graduate in English, and has worked in four different fields.
[21] The applicant cites one of my decisions, Wen v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 144 ("Wen"), where I held that the visa officer erred in not taking into account the qualities of the applicant's spouse.
[22] However, the case of Wen, ibid., is distinguishable from the case at bar. In that case, the visa officer admitted that she had made an error in failing to take into account that the occupation of the applicant's wife was on the occupational demand list. I have reproduced the relevant passage below:
[...] The Visa Officer overlooked the fact that the applicant's wife worked as a bookkeeper, an occupation listed on the occupational demand list. The employability of the spouse was a relevant factor in the assessment of the Applicant's suitability. He received no credit for it. In her affidavit, the Visa Officer admits to this "oversight" and in cross-examination, she agreed that had she taken that fact into account, she would have awarded a point for the occupational demand of the spouse. (Emphasis mine).
Wen, ibid., at para. 8.
[23] In the case at bar, the visa officer did not fail to take into account any relevant qualities of the applicant's spouse. She noted in the CAIPS that she interviewed her. Despite the qualities of the applicant's spouse, the visa officer was not satisfied that the applicant showed the adaptability, motivation, initiative or resourcefulness, to successfully become established in Canada.
[24] Overall, I am satisfied that the factors that the visa officer took into account in her assessment of personal suitability were relevant as they refer to the ability of the applicant to establish himself in Canada from an economic point of view and that her conclusion is reasonable.
[25] The applicant finally argues that the officer should have exercised her discretion favourably pursuant to subsection 11(3) of the Regulations. Again, I disagree. Subsection 11(3) provides the visa officer with a wide ambit of discretion. The Court does not interfere with this discretion unless it is exercised arbitrarily or based on irrelevant considerations. In Chen v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 78, Evans J. stated at para. 21:
[...] Only if the visa officer's exercise of discretion can be characterized as arbitrary or capricious or otherwise unreasonable should the court intervene.
[26] In the case at bar, the visa officer, after having assessed the applicant, was not satisfied that she should exercise positive discretion and issue him a visa without the required units of assessment. I cannot find that the visa officer's decision was arbitrary or capricious.
[27] For these reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4771-01
STYLE OF CAUSE: CHEN, XUEMING
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: December 4, 2002
REASONS FOR ORDER
AND ORDEROF THE HONOURABLE MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
DATED: December 9, 2002
APPEARANCES:
Mr. Jean-François Bertrand FOR APPLICANT
Mr. Guy Lamb FOR RESPONDENT
SOLICITORS OF RECORD:
Bertrand Deslauriers
Montreal, Quebec FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR RESPONDENT