Date: 20020415
Docket: IMM-4563-00
Neutral citation: 2002 FCT 429
BETWEEN:
LI ER NAN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] Li Er Nan, in his application for judicial review, requests that the July 25, 2000 decision of a visa officer at the Canadian Embassy in Beijing, denying his application for permanent residence in Canada, be quashed and that the application be referred back to the Canadian Embassy for consideration by a different visa officer.
[2] The applicant is a citizen of the People's Republic of China. He has a diploma in machine and electrical repair and a certificate from the Training Centre of the Department of Computer Science from Jilin University. Since 1991, he has worked at the Industrial and CommercialBank in Tonghua as an Electronic Data Processing (EDP) Analyst.
[3] On August 11, 1999, Li Er Nan applied for permanent residence in Canada in the skilled worker category. His application included his wife as a dependent. The applicant attended at the Embassy, with his wife, on March 21, 2000 for his interview with the visa officer. Theinterview is summarized in the Computer Assisted Immigration Processing System (CAIPS) notes of the visa officer, which form part of the Tribunal Record. Although the applicant had indicated, on his application, an ability to speak English, it became apparent early in theinterview that he required translation. After the completion of English language tests, the interview was conducted through an interpreter.
[4] The applicant was notifed by letter dated July 25, 2000 that he had obtained insufficient units of assessment to qualify for immigration. The visa officer, in her correspondence, delineated the units of assessment awarded the applicant. The total of 68 did not meet the minimumrequirement of 70 units. The applicant takes issue with the visa officer's award of 4 points for personal suitability and says that the visa officer erred in awarding only 4 out of a possible 10 points.
[5] The applicant submits that a visa officer's decision must be made fairly (Lowe v. Minister of Employment and Immigration (1987), 16 F.T.R. 124) and should be reviewed on a standard of reasonableness simpliciter (Hao v. Canada (Minister of Citizenship and Immigration) (2000), 184 F.T.R. 246), the definition of which is found in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 63. More specifically, the applicant argues that a broader evaluation of a candidate's personal suitability is required where, as here, the applicant is only 1 or 2 points short of the required total. (Maniruzzaman v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 139).
[6] The applicant notes the statement in the visa officer's affidavit that the officer took into account "the fact that he had been learning English in night school for a year and a half without upgrading his language skills to a level where he could hold a normal conversation in English." Theapplicant refers toTing v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 238 where the Court, in setting aside the decision of a visa officer, commented on the existence of a large Chinese community in Vancouver when reviewing the candidate'sadaptability assessment. By analogy, the applicant argues that the reasoning in Ting applies to Toronto, the intended destination of the applicant, which also has a large Asian community.
[7] The applicant further states that he demonstrated motivation and initiative by downloading research material from the internet, which included job searches and information regarding salary levels as well as the cost of living in Canada, and answered questions on these topics during his interview.
[8] Lastly, the applicant submits that, in assessing his personal suitability, the visa officer should have considered the applicant's wife's occupation as a travel consultant (an occupation listed on the occupation demand list) and her fluency in English. In this regard, the applicant relies on Wen v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 144 where the Court found the employability of the spouse to be a relevant factor in the assessment of an applicant's suitability. Applying Wen to this case, the applicant says the visa officer committed a reviewable error by ignoring relevant information.
[9] The respondent, relying on Chiu Chee To v. Canada (Minister of Employment and Immigration) , [1996] F.C.J. No. 696 (C.A.) and Bhatti v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No.1889 (T.D.), says that the standard of review for factual findings is patent unreasonableness. Regarding questions of mixed law and fact, the standard is reasonableness simpliciter. Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, Dhillon v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 684 (T.D.), Negriy v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 290, Gupta v. Canada (Minister of Citizenship and Immigration) (2000), 186 F.T.R. 232 and Lu v. Canada (Minister of Citizenship and Immigration) (1999), 176 F.T.R. 263. With respect to the discretionary decision of the personal suitability factor, the standard is patent unreasonableness. Kompanets v. Canada (Minister of Citizenship and Immigration) (2000), 196 F.T.R. 61, Arora v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 389 (T.D.), Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.1080 (T.D.) and Suniara v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 989 (T.D.).
[10] The respondent says that the applicant has failed to demonstrate that the visa officer erred in her assessment of personal suitability.
[11] The relevant statutory provisions are contained in the Immigration Act, R.S.C. 1985, c. I-2,
| 6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations.
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
9. (2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing.
9. (4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
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6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure.
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
9. (2) Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge semblent répondre aux critères de l'établissement.
9. ( 4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements. |
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and in the Immigration Regulations, 1978, SOR/78-172, as amended.
| 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant (a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in Column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor.
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8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint :
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à -vis de ce facteur.
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Schedule I, Column II states:
| Personal suitability 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.
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Personnalité 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.
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[12] The visa officer awarded the applicant 4 units of assessment for personal suitability. Paragraphs 13 and 14 of the officer's affidavit state as follows:
13. I explained to the applicant that in view of the information available through internet and his contacts in Canada plus the opportunities available for language improvement on one hand, and the degree of knowledge and preparation as shown by the answers during the interview on the other hand, I awarded a total of 4 units of assessment for personal suitability.14. Specifically, to gauge the applicant's adaptability, motivation, resourcefulness and initiative, I asked him questions about how to find a home and a job in Canada. I also took into account the fact that he had been learning English in night school for half a year without upgrading his language skills to a level where he could hold a normal conversation in English. I asked about his spouse's plans in Canada. The answers were of a vague and general nature, the job searches the applicant had submitted to support his job search in Canada were not relevant to his intended occupation and/or the applicant failed to meet the requirements set out in the advertisements. In view of these factors I believed that 4 units for personal suitability were an accurate reflection of the chances of the applicant (and dependants) to become successfully established (economically) in Canada.
[13] With regard to the applicant's arguments, I do not agree that the Maniruzzaman case stands for the proposition that whenever an applicant is close to the requisite number of units of assessment, a broader evaluation of the personal suitability factor is required. In Maniruzzaman, Justice Reed set aside the decision of the visa officer on the basis that inordinate weight was placed on relevant but not central factors. In Ting, it was found that the visa officer failed to properly apply the criterion of adaptability. The applicant in that case had exhibited a number of qualities indicative of a high degree of adaptability that were ignored by the visa officer. In the Wen case, Justice Tremblay-Lamer identified three errors in the visa officer's decision including a breach of procedural fairness. In Luo v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 170, Justice Tremblay-Lamer confined Wen to its facts with respect to the spouse's occupation. Moreover, in the present case, the visa officer's affidavit as well as the CAIPS notes establish that the officer did address the issue of the spouse's intended occupation.
[14] At the hearing, much of counsel's argument related to the appropriate standard of review to be applied to a visa officer's assessment of personal suitability. I conclude that, in this case, the factors relied upon by the visa officer were relevant to the personal suitability of the applicant and the assessment was made on the basis of the evidence before the officer. The weighing of relevant factors is the responsibility of the Minister or his delegate. Minister of Citizenship and Immigration v. Alexander Henri Legault, 2002 FCA 125 at paragraph 11.
[15] In the circumstances, the personal suitability assessment of the visa officer was reasonable whether a standard of reasonableness simpliciter or patent unreasonableness is applied. Therefore, for the reasons herein, the application for judicial review is dismissed.
[16] Counsel did not suggest a serious question of general importance therefore no question is certified under subsection 83(1) of the Immigration Act.
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Judge
Ottawa, Ontario
April 15, 2002