Date: 19980626
Docket: IMM-3306-97
BETWEEN:
SYED SHAHAB HAIDER ZAIDI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.
[1] The applicant seeks judicial review of a decision of a visa officer who exercised her discretion under subsection 11(3)(b) of the Immigration Regulations, SOR/78-172, and denied the applicant permanent resident status despite the fact that she awarded him 71 units of assessment (70 units being required for such status). She denied the applicant permanent resident status because she formed the opinion that the units of assessment awarded did not reflect his chances of becoming successfully established in Canada. The applicant argues that this visa officer was (1) biased and had prejudged his case; (2) took into account irrelevant considerations; (3) failed to take into account relevant considerations.
[2] The applicant in his affidavit states that at the commencement of his interview the visa officer "told him immediately" that she was "not satisfied with [his] application". He argues that she thereby exhibited her bias against him. The visa officer's response to this allegation is a categorical denial. Paragraphs 9 and 10 of her affidavit read:
9. Contrary to the Applicant's statement in para. 15 of his Affidavit, I most emphatically did not tell him immediately on his entering my office that "I am not satisfied with your application" to which he responded "I will satisfy you just tell me where you are not satisfied". One of the main purposes of an interview is to assess the applicant's chances of establishing himself successfully in Canada. It would be unfair for a visa officer to make such a statement before the interview had even commenced. I did not make such a statement to the Applicant.
10. My interview with the Applicant was a lengthy one during which he was given ample opportunity to demonstrate the skills and abilities he could bring to Canada. It was not until the latter stages of our interview that I expressed concerns about his qualifications, and these were expressed to allow him an opportunity to respond to them before I reached my final decision.
[3] There had of course been a paper screening of the applicant's application before the interview. It would be easy for him to misinterpret remarks eliciting further information respecting his application as carrying a negative connotation. I have not been persuaded that the visa officer pre-judged the applicant's application.
[4] The applicant asserts that the visa officer took into account irrelevant considerations because she discounted a letter written describing his employment experience in the United States. The applicant attributes her negative attitude to the letter to the fact that he had been working without status in the United States and because she allegedly said the letter was "written in strange ways, some of the words with capital letters." The applicant alleges that he volunteered to show her his pay stubs and to demonstrate that he was paying taxes on his employment income.
[5] The visa officer's response was that she did not consider the fact that he was working without status in the United States to be relevant to the authenticity of the letter. She states that she does not recall their conversation verbatim but that she would have raised a concern about the letter because it was not signed, and she would have expressed concern that it contained some unusual capitalization.
[6] The fact that the letter is not signed is a very significant defect. The visa officer cannot be faulted for having given little weight to the letter, or for having questioned its authenticity. I note as well that the company on whose letterhead the letter is written apparently no longer existed at the date of the interview.
[7] The visa officer awarded the applicant the following units of assessment:
Age 10
Occupational Factor 10
Specific Vocational Preparation 11
Experience 6
Arranged Employment 0
Demographic Factor 8
Education 13
English 7
French 0
Personal Suitability 6
TOTAL 71
[8] Nevertheless she determined that he was inadmissible to Canada, a decision that was approved by a senior officer. The visa officer was not persuaded that the applicant would be able to successfully establish himself in Canada. The letter sent to the applicant states, in part:
Section 11(3)(b) of the Immigration Regulations states that: "A visa officer may ... refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10 if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer". In the circumstances of your application I am not satisfied that you will be able to establish successfully in Canada. This opinion has been submitted in writing to, and concurred by, a senior visa officer. The reasons for my decision are as follow:
During the interview you attended at this office on June 25, 1997, you stated that you have never visited Canada. Neither you nor your wife have any relatives in Canada who could assist you in settling in Canada. You are the sole provider for your wife, three children and widowed mother whom you had also listed as a dependant on your application form.
In your application you listed your intended occupation as Systems Analyst. As you have no verifiable experience in that occupation I have assessed you as a Computer Programmer. However, I am not satisfied that your settlement prospects in that occupation are good; your educational background in the field is very limited, your experience in North America is of very short duration and when asked to explain a number of common concepts pertaining to the field you displayed considerable difficulty in doing so. Therefore, in my opinion you would not at all be competitive in the open labour market in Canada. (I have enclosed a copy of the units of assessment you have been awarded).
[9] Her notes of the interview read in part:
Subject clearly has some knowledge and background in computers, however not enough to qualify as a systems analyst. I asked Vice-Consul McLeman to ask him some fairly basic computer related questions, among them what a "BUS" is which he could not explain. It is possible that subj has been working as a programmer and this is what I have assessed him as. However, though subj obtains the required minimum units of assessment to meet selection criteria, I am not at all satisfied that he would be able to establish successfully in Canada. He has never been to Canada and has no relatives there. His educational background in the field is very limited and his experience in North America of short duration and in my opinion he would not at all be competitive in the labour market. I asked him to describe in writing how he would go about looking for employment but he did not address that issue. In addition, his bank statement shows funds of U.S. 9600 of which 5000 was deposited less than two weeks ago. He says it was a transfer from a savings acct he has .... his daughter (who is in Pakistan). Says has property in Pakistan but that is not on the application form. He has a wife and three children in Pakistan plus has put his mother who is single on the application as he is the only son. As in my opinion he does not meet the requirements for immigration to Canada notwithstanding the number of assessment units he has obtained I recommend discretionary refusal of his application.
[10] The applicant contests the visa officer's evaluation. He points out that he may not have relatives in Canada but he has a friend here who would assist him. He states that while he has never visited Canada he has been working in the United States for two years and the countries are similar. He states that he is seeking permanent residence status in Canada only for himself, not for his wife, children and mother. He contests the conclusion that his educational background is limited, that his North American experience is limited, and that he lacks knowledge in his field.
[11] Unfortunately for the applicant, the record supports the visa officer's conclusions. Also while he may not be seeking immediate landing for his family, once he is granted landed, his wife and children would be entitled to landing. The ability of the applicant together with his dependents to become established in Canada is a relevant consideration.
[12] In Chiu Chee To v. M.E.I., (A-172-93, May 23, 1996), the Federal Court of Appeal held that the appropriate standard of review for discretionary decisions of visa officers with respect to immigrant applications is the same as that enunciated by the Supreme Court of Canada in Maple Lodge Farms v. Government of Canada, [1982] 2 S.R.C. 1 where Mr. Justice McIntyre sated at page 7 to 8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise os a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that same responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[13] In Chen v. Minister of Employment and Immigration, [1995] 1 S.C.R. 725, the Supreme Court of Canada adopted the view of Mr. Justice Strayer expressed in [1991] 3 F.C. 350, and of Mr. Justice Robertson of the Court of Appeal, in dissent in [1994] 1 F.C. 639 at pages 649-50, regarding the interpretation of subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172. The Supreme Court approved the interpretation of subsection 11(3) of the Immigration Regulations as being addressed to economics considerations relating to establishment in Canada. At page 361, Mr. Justice Strayer wrote:
Given this emphasis on economic factors as identified by both Parliament and the Governor in Council for determining whether an immigrant can become "successfully established" in Canada, it is difficult to read the discretionary power granted to a visa officer by subsection 11(3) of the Regulations as allowing him to ignore the number of units of assessment and to determine, for essentially non-economic reasons, that an immigrant does not have a chance of becoming successfully established in Canada. While the subsection only requires that the visa officer have "good reasons", those reasons must be such as lead him to believe that the immigrant cannot become successfully established in the economic sense. They do not include such reasons as that an immigrant will probably not be good neighbour, a good resident, or ultimately a good citizen of Canada; ... If they are to be excluded for such reasons, it must be done under the process contemplated by section 19 and not through a visa officer exercising his discretion under subsection 11(3) of the Regulations because he feels that a particular immigrant is undesirable. [Underlining added.]
[14] As I understand Mr. Justice Strayer's decision he also indicated that a visa officer's discretion did not include the authority to take into account factors that had been assessed when doing the unit assessment unless the particular assessment was zero (see page 362).
[15] In the present case, the visa officer's concerns were addressed to the applicant's ability to establish himself economically. Given the applicant's lack of knowledge in the field in which he professed to be proficient, his lack of experience in the North American market, his lack of a plan as to how he would obtain employment in Canada, the number of individuals who potentially would be dependent on him, she had concerns that he would not be able to become financially established in Canada without public assistance.
[16] No argument was made that the visa officer implicitly lowered the unit assessments in exercising her negative discretion, nor was I referred to any evidence to support an argument in that regard.
[17] Applying the tests set out in the jurisprudence, I have been persuaded that the visa officer's decision should not be set aside. An order will issue accordingly.
Judge
OTTAWA, ONTARIO
June 26, 1998
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3306-97
STYLE OF CAUSE: SYED SHAHAB HAIDER ZAIDI v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 24, 1998
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE REED DATED: June 26, 1998
APPEARANCES
Mr. Joseph Farkas FOR THE APPLICANT
Mr. Stephen Gold FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Joseph Farkas FOR THE APPLICANT Toronto, Ontario
Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada