Federal Court Decisions

Date: 20020425

Docket: IMM-4214-00

Neutral citation: 2002 FCT 468

Ottawa, Ontario, this 25th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                 SAFDER HUSSAIN

                                                                                                                                                       Applicant

                                                                                   

- and-

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review pursuant to subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, in respect of the decision of the visa officer dated April 26 2000, wherein the visa officer refused the applicant's application for permanent residence in the independent category.

[2]                 The applicant seeks an order in the nature of certiorari quashing the decision of the visa officer and the applicant also seeks an order in the nature of mandamus allowing the application for permanent resident status or, in the alternative, an order the nature of mandamus requiring a different visa officer reconsider the application of the applicant in accordance with the principles of fairness and in accordance with the provisions of the Immigration Act, R.S.C. 1985, c. I-2 and the Immigration Regulations, 1978, SOR/78-172 ("Immigration Regulations").

Background

[3]                 The applicant, Safder Hussain, is a citizen of Pakistan who resides in Kuwait. The applicant applied for permanent residence in Canada by submitting an application at the Canadian Embassy in Damascus, Syria, on May 5, 1998. The applicant applied for permanent resident status for himself and four dependants (his wife, his two sons and his daughter).

[4]                 The applicant received a Bachelor of Science in Agriculture from Faisalabad University of Agriculture in Pakistan in 1989.

[5]                 The applicant attended an interview with the visa officer at the Canadian Embassy in Damascus on April 26, 2000 at 9:30 a.m. The applicant's wife was unable to attend because the Syrian authorities refused to grant her entry as a visitor.

[6]                 The decision was communicated to the applicant in the letter of the visa officer dated April 26, 2000. The decision stated in part:

Based on the information provided in your application form and at the interview, you were assessed against the requirements for Horticulturalist NOC 225[sic]. The units of assessment you have been awarded for each of the selection criteria are as follows:

Horticulturalist (NOC 2225)

Age                                                                               10

Occupational Factor                                                   01

S.V.P.                                                                            15

Experience                                                                     06

A.R.E.                                                                           00

Demographic Factor                                                   08

Education                                                                      15

English                                                                          06

French                                                                           00

Bonus                                                                            00

Suitability                                                                     05

Total                                                                             66

Pursuant to Section 9(1)(b) of the Immigration Regulations, 1978, you have failed to obtain at least 70 units of assessment, the minimum required to comply with the selection criteria for immigration to Canada. You are therefore, a member of the inadmissible class of persons described in Section 19(2)(d) of the Immigration Act and your application has been refused.

During the interview you did not demonstrate any specific understanding of the employment market in Canada and specifically job opportunities in Canada, if any in your field of expertise. Furthermore, you have not conducted any serious employment search, research and or inquiries. In fact, all you produced is a copy of Internet information and kept repeating that "there are over 4000 golf courses in the Toronto area and you would find a job." In my opinion you have not demonstrated any motivation and initiative, especially in a situation where you were well aware that you would require the highest possible number of points for personal suitability in order to reach the minimum required number of 70 points.

[7]                 This is the judicial review of that decision.

Applicant's Submissions

[8]                 The applicant submits that the appropriate standard of review on a question of fact or a question of mixed fact and law from a decision of a visa officer is reasonableness simpliciter.

[9]                 The applicant submits that the visa officer failed to complete a broad evaluation of the applicant's personal suitability as required by the Immigration Regulations, supra. The applicant submits that Reed J. in Maniruzzaman v. Canada (M.C.I.) (1999), 167 F.T.R. 131 (T.D.) set aside the decision of the visa officer because an inordinate amount of weight was placed on relevant but not central factors such as the applicant's knowledge of the Canadian banking industry, yet did not consider the applicant's relevant work experience and credentials, his search for employment opportunities in his profession in Canada, the presence of his family in Canada and available funds for resettlement. In Maniruzzaman, supra, the applicant was awarded four points out of a possible ten for personal suitability.

[10]            The applicant submits that the visa officer's evaluation of the applicant on personal suitability lacked breadth and depth as required by the Courts. The applicant submits that the visa officer did not indicate to the applicant during the interview that he had concerns about the applicant's lack of motivation in attempting to get a job in Canada.

[11]            The applicant submits that the visa officer failed to award the applicant sufficient points in the language category despite the fact that the applicant was fluent in English. The applicant submits that at no time during the interview did the visa officer suggest that the applicant's English language ability was not fluent as the applicant had indicated on his application.

[12]            The applicant submits that the Language Assessment Guide was developed to assist visa officers to assess the language abilities of applicants in reading, writing and speaking. If an applicant reads, writes and speaks fluently in his first official language, he will receive three credits for each skill. For applicants who speak, read and write English well, they will receive two credits for each skill.

[13]            The applicant submits that the visa officer breached a duty of fairness by failing to provide the applicant with an opportunity to respond to the visa officer's concerns.

Respondent's Submissions

[14]            The respondent submits that the applicant bears the burden of proving that he has a right to come into Canada (see Immigration Act, supra at section 8(1)).

[15]            The respondent submits that under section 9(2) of the Immigration Act, supra, applications for immigrant visas are to be assessed by visa officers to determine if the requirements of the legislation are met.

[16]            Under subparagraph 9(1)(b)(i), the respondent submits that the Immigration Regulations state that "a visa officer may issue an immigrant visa" to an applicant in the independent category who accumulates at least 70 units of assessment under Schedule 1 [emphasis added by respondent].

[17]            The respondent submits that the visa officer did not err in assessing the personal suitability factor of Schedule 1 to the Immigration Regulations. The respondent submits that the score of five out of a possible ten indicates that the visa officer was not convinced that the applicant possessed the personal qualities necessary to establish himself as a successful member of Canadian society.

[18]            The respondent finds support in the reasons of Mr. Justice Dubé in Ali v. Canada (M.C.I.), [1998] F.C.J. No. 1080 (QL) (T.D.) where he writes at paragraph 6:

The assessment of personal suitability is entirely within a visa officer's scope of expertise and should not be interfered with unless the finding is perverse or capricious, or unless the visa officer committed an error of law. "Double-counting" on the part of the visa officer would be an error of law. In other words, specific factors such as education, language, occupational demand or any of the five factors outlined in Schedule I already assessed separately cannot be "double-counted" when assessing an applicant's personal suitability. . . . Such factors may be considered under personal suitability only insofar as they elucidate the applicant's adaptability, motivation, initiative, resourcefulness and similar qualities. . . .

[19]            The respondent submits that under the "occupational factor", the applicant was rated one out of a possible ten for employability based on his chosen profession. The respondent submits that this factor measures employment opportunities in Canada in an applicant's chosen profession by taking into account labour market information provided by Human Resources Development Canada, provincial governments and other agencies.

[20]            The respondent submits that an oral interview is an ideal opportunity to assess an applicant's speaking skills, and that the visa officer's decision in this regard should be given deference.

[21]            The respondent concedes that the visa officer erred in assessing the applicant's reading and writing skills in the "well" range, without administering a formal test, when the applicant had self-assessed his abilities as "fluent" on his application.

[22]            The respondent submits that the Federal Court of Appeal in Yassine v. Minister of Employment and Immigration (1994), 172 N.R. 308 (F.C.A.) held that a new hearing was not warranted where the outcome would be the same, even if there had been a denial of natural justice or procedural fairness at the first hearing. The respondent submits that Nadon J. in Syed v. Canada (Attorney General), [1999] F.C.J. No. 451 (QL) (T.D.) considered a situation where a correction of errors made by a visa officer would still not result in sufficient points, and held that the Court should not intervene.

[23]            The respondent submits that the officer is not required to put before the applicant any tentative conclusions he may be drawing from the material before him.

[24]            The respondent submits that the applicant is saying he had a conversation with the visa officer about personal suitability, and the awarding of six points, rather than five. The respondent submits that on the other hand, the applicant contends that the visa officer never made his concerns known to the applicant. The respondent submits that these two submissions contradict each other.

[25]            The respondent submits that there is no evidence that the visa officer breached the requirements of his duty of fairness to the applicant.

[26]            Issues

1.          Did the visa officer err in law by failing to award the applicant more units of assessment under the personal suitability category?

2.          Did the visa officer breach the requirement of natural justice by failing to assess the applicant's English language abilities, particularly in the areas of reading and writing?

3.          Did the visa officer breach a duty of fairness owed to the applicant by failing to raise his alleged concerns with the applicant about his personal suitability for settlement in Canada or his English language fluency and by failing to provide the applicant with an opportunity to address any such concerns?

Relevant Statutory Provisions, Regulations and Rules

[27]            Subsection 8(1) of the Immigration Act, supra states:

Analysis and Decision

[28]            Issue 1

Did the visa officer err in law by failing to award the applicant more units of assessment under the personal suitability category?

The visa officer awarded five units of assessment to the applicant under the personal suitability factor. The visa officer's notes state in part as follows:

. . . APPLICANT CLAIMS THAT THERE ARE OVER 400 GOLF COURSES IN TORONTO AREA AND HE INTENDS ON GETTING A JOB WITH ONE OF THE GOLF COURSES. APPLICANT HAS NO FRIENDS OR RELATIVES IN CANADA AND HAS NO PREVIOUS CONTACT WITH ANY ONE IN CANADA. APPLICANT HAS LIMITED IF ANY UNDERSTANDING REGARDING JOB MARKET AND JOB OPPORTUNITIES IN CANADA.

[29]            The visa officer's refusal letter read in part as follows:

In my opinion you have not demonstrated any motivation and initiative, especially in a situation where you were well aware that you would require the highest possible number of points for personal suitability in order to reach the minimum required number of 70 points.

[30]            The visa officer turned his mind to relevant considerations in reaching a determination under the personal suitability factor. Awarding five assessment units for personal suitability is above the minimum value but below the maximum of ten units that would have been open to the visa officer.

[31]            The score of five units for personal suitability indicates that the visa officer was not convinced that the applicant possessed the personal qualities necessary to establish himself as a successful member of Canadian society.    The reasons provided by the visa officer indicate that the visa officer's discretion under this factor was exercised in a principled and reasonable way based on the applicant's adaptability, motivation, initiative, resourcefulness and other similar qualities.

[32]            I do not find that the visa officer placed an inordinate amount of weight on relevant but not central factors, and I do not find that the visa officer ignored or did not explore relevant areas. In sum, I am not persuaded that the decision of the visa officer was unreasonable with regards to this factor.

[33]            Issue 2

Did the visa officer breach the requirement of natural justice by failing to assess the applicant's English language abilities, particularly in the areas of reading and writing?

The respondent concedes that the visa officer erred in assessing the applicant's reading and writing skills in the "well" range, without administering a formal test, when the applicant had self-assessed his abilities as "fluent" on his application. If the applicant was awarded an extra one, two or even three points for English language ability, he still would have failed to receive the 70 assessment points required for admission to Canada in the independent category.

[34]            Nadon J. in Syed v. Canada (Attorney General), supra discusses a situation where correcting the error of a visa officer would not result in sufficient points, as follows:

With respect to education, the maximum that could have been obtained by the Applicant was 15. With respect to suitability, the maximum was 10. Consequently, assuming that the visa officer erred in respect of both factors, the Applicant would have obtained at best 8 additional points leaving him with a total of 69 points.

In view of the above, I must conclude that even if the visa officer erred as submitted by the Applicant, the errors do not allow me to intervene since the Applicant, in any event, would not have obtained more than 69 points, one short of the minimum required.

[35]            In this case, even if the applicant had been given a fluent rating for reading and writing English, he would have received two more points and his total units of assessment would have been 68, still two units short of the required 70 units of assessment. This shows that the error of the visa officer was immaterial to the ultimate decision. The decision will not be set aside for this reason.

[36]            Issue 3

Did the visa officer breach a duty of fairness owed to the applicant by failing to raise his alleged concerns with the applicant about his personal suitability for settlement in Canada or his English language fluency and by failing to provide the applicant with an opportunity to address any such concerns?

In Bara v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 992 (QL) (T.D.), Richard A.C.J. (as he then was) stated at paragraph 14:

The officer is not required to put before the applicant any tentative conclusions he may be drawing from the material before him, not even as to apparent contradictions that concern him.

[37]            It appears to me that the visa officer was merely assessing the information provided to him by the applicant as he must do in order to reach a decision. Section 8(1) of the Immigration Act, supra places the burden on the applicant to prove that he has a right to come to Canada. I do not see where the visa officer made any error in this respect.

[38]            The application for judicial review is therefore dismissed.

[39]            Neither party wished to propose a serious question of general importance for certification.

ORDER

[40]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                                    "John A. O'Keefe"                 

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 25, 2002