Date: 19990310
Docket: IMM-1556-98
BETWEEN:
HUANG WEI WEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of Visa Officer Janet Waterman (the "Visa Officer") to deny the application of Mr. Huang Wei Wen (the "Applicant") for permanent residence in Canada.
[2] The Applicant is a citizen of the People"s Republic of China. He applied for permanent residence in Canada as an independent applicant (assisted relative) under the occupation of Cook - Foreign Foods. In the pre-screening phase, he was awarded 64 units of assessment and was sent a request for additional documents on 26 February 1996. The Applicant submitted the requested documents on 20 March 1996, and on 9 July 1996 he submitted an informal job offer and a letter, which were put in his file.
[3] The Applicant was asked if he would like to participate in a non-obligatory programme run by the China Cooks" Association, designed to test the qualifications of cooks in China. He agreed and received a score of 69.9. Although the passing grade was 70, the Visa Officer decided to give him the benefit of the doubt and awarded him full points for his experience.
[4] The Applicant was subsequently assessed, following a personal interview, at 68 units of assessment. The units were awarded as follows:
| Age |
10 |
| Occupational Demand |
10 |
| Specific Vocational Preparation |
15 |
| Experience |
6 |
| Arranged Employment |
0.00 |
| Demographic Factor |
8 |
| Education |
10 |
| English |
0.00 |
| French |
0.00 |
| Personal Suitability |
4 |
| Bonus (relatives) |
5 |
| TOTAL |
68 |
[5] The Applicant is in substantial agreement with the Visa Officer"s assessment. However, he takes issue with her assessment of his personal suitability.
[6] Visa officers are to assess an applicant"s "personal suitability" under Factor 9 of Schedule I of the Regulations , based on "the personal suitability of the applicant and his dependants to become successfully established in Canada based on the person"s adaptability, motivation, initiative, resourcefulness and other similar qualities."
[7] In Gill v. Canada (MCI)1 Jerome A.C.J. (as he then was) discussed the broad discretion conferred on the visa officer to determine the personal suitability of the applicant:
| The legislative provisions confer a broad discretion on a visa officer in making a determination of this nature and it is entirely within his jurisdiction to form an opinion concerning an applicant's personal suitability based on factors such as adaptability, motivation, initiative, resourcefulness and other qualities. Provided that opinion is reasonable and is neither arbitrary or capricious, there are no grounds to warrant judicial interference. [Emphasis added]. |
[8] In this case, I find the Visa Officer"s decision unreasonable for three reasons. Firstly, there was an erroneous finding of fact. 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.
[9] Secondly, I am of the view that the Visa Officer breached procedural fairness in not raising her concerns about the Applicant"s settlement arrangements. This omission was even more significant given the visa officer"s inability to point out any other reasons that could have triggered her low assessment of the Applicant"s personal suitability. In cross-examination she stated:
| Q. What was specific about this applicant that led you to four points? What was it about his motivation; what was it about his resourcefulness, adaptability that led you to believe he was only worth four points for personal suitability? |
| A. Well, those things that you mentioned. He didn"t show any exceptional, you know -- exceptional resourcefulness or exceptional motivation. He showed some motivation and some of those other things that you"ve just mentioned. |
| Q. This particular man had a job offer which is more than -- and yet you didn"t even give him the average points for personal suitability. I just want to know why. What was the problem with this particular applicant? |
| A. No problem, but what I felt reflected his ability to settle.2 |
[10] If this was in fact the case, she should have raised her concerns with the Applicant, in order to afford him the opportunity to disabuse her of them. As stated by McNair J. in Fong3:
| I am also of the opinion that the visa officer committed a breach of the duty of fairness by his failure to afford the applicant an adequate opportunity to answer the specific case against him on the issue of related experience, vis-à-vis the job offer of production line manager, which could have been done and should have been done by an appropriate line of questioning once it became apparent that the application for permanent residence was likely to fail on that score.4 |
[11] Finally, the Visa Officer agreed that he had a bona fide job offer, that his wife was working in a demand occupation, and that he had relatives about whom she "didn"t have any particular concerns with respect to assessment of personal suitability to assist him in Canada." Further, she stated that his English was not an issue for personal suitability and that he had "some knowledge of Canada." Other than possible concerns with respect to settlement, she was unable to explain her below average assessment of his personal suitability, nor could she point to any factors justifying her assessment. In my opinion, in order to justify a below average assessment, a visa officer should be able to at least indicate some specific areas of concern which prompt the low mark, and not simply recite a standard list of relevant factors.
[12] In the circumstance of this case, her assessment was perverse.
[13] For these reasons, the application for judicial review is granted. The decision is quashed and the matter is sent back to be reassessed by a different visa officer.
(Sgd.) "Daniele Tremblay-Lamer
JUDGE
VANCOUVER, BRITISH COLUMBIA
March 10, 1999
[14] FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1556-98
STYLE OF CAUSE: HUANG WEI WEN
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: March 9, 1999 |
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED: March 10, 1999
APPEARANCES:
| Mr. Andrew Wlodyka for the Applicant |
| Ms. Kim Shane for the Respondent |
SOLICITORS OF RECORD:
Lawrence, Wong & Associatesfor the Applicant
Vancouver, British Columbia
| Mr. Morris Rosenberg for the Respondent |
Deputy Attorney General
of Canada
__________________1 (1996), 34 Imm. L.R. (2d) 127 at 128 (F.C.T.D.).
2 Applicant"s Record at 171-72.