Date: 20010705
Docket: IMM-2940-00
Neutral Citation: 2001 FCT 761
BETWEEN:
CECIL EARNEST CHAUHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
[1] This application, pursuant to subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, ("the Act"), is for the judicial review of a decision of a Visa Officer ("the Visa Officer") at the High Commission in London refusing the applicant's application for permanent residence in Canada in the independent category.
1. Facts
[2] The applicant is a citizen of India residing in Kuwait. He submitted his application on December 15, 1998, and attended an interview at the Canadian Embassy in Kuwait on February 19, 2000. He is a supervisor/mechanic of diesel motors for the Ministry of the Interior of the Kuwaiti Government. His previous application was initially rejected on the basis that he did not have sufficient points in the Education category because the first Visa Officer disputed the equivalence of his 11 years of schooling in India. However, the applicant provided a statement from the Indian Embassy in Kuwait certifying that his secondary school education did, in fact, entitle him to enter university. He was then awarded 10 points for education, bringing his total to 62. Consequently, the file was reopened and he was scheduled for an interview.
[3] At the interview, the second Visa Officer determined that he was entitled to 13 points for education, but did not award him any bonus points for the Assisted Relative category as the instructions at the time of the interview were not to award points for in-laws. However, these instructions have since been rescinded, thus elevating his points to 69 on a total of 70, the minimum required for qualification to immigrate to Canada.
2. Analysis
[4] The applicant submits that he would have received 70 points if he had been properly awarded both the five points for Assisted Relative bonus and at least one additional point on Personal Suitability or other categories. He was granted only five points out of 10 on Personal Suitability.
[5] The applicant is a supervisor/mechanic of diesel motors for the Ministry of the Interior of the Kuwaiti Government and he applied as a contractor and supervisor under the National Occupational Classification ("NOC") 7216. He has been employed in his current position since October 1984 and has over 20 years of experience as a diesel mechanic and more than 10 years experience in a supervisory capacity.
[6] The Visa Officer acknowledged that he had lived in more than one country (India and Kuwait) and has funds to settle in Canada in the amount of $133,000.00 CN. He was assessed as fluent in reading and speaking English and as writing English "well". He explained to the Visa Officer during the interview that he had selected Halifax as his destination in Canada because it is a port city with many employment opportunities for a marine and diesel equipment mechanic. He also informed the Visa Officer that he had a list of potential employers and possible job prospects in Halifax for his area of expertise. Moreover, his wife would be employable as an executive secretary, fluent in English. She has already two brothers residing in Canada.
[7] Despite all these factors, the Visa Officer only granted the average score of five points for Personal Suitability out of a maximum of 10.
[8] Admittedly, a visa officer has considerable discretion in assessing an applicant's personal suitability to settle in Canada. Nevertheless, that discretion must be exercised in a principled and reasonable way, based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities. The essential test is whether or not that person has the suitability required to support himself economically in Canada.
[9] Clearly, the Visa Officer was overly conservative in his assessment of the ability of the applicant to support himself in Canada. Taking into consideration his competence and experience in his specific field, his ability to speak English, the high degree of employability of his wife and his substantial financial resources, he would be able to support himself economically in this country.
[10] Consequently, this matter is returned to a different visa officer for a reassessment consistent with these reasons.
[11] The application for judicial review is granted.
OTTAWA, Ontario
July 5, 2001
Judge