Date: 19980708
Docket: IMM-2545-97
BETWEEN:
MOHAMMAD LARBI B"GHIEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
(Rendered from the Bench at Toronto, Ontario,
Wednesday, July 8, 1998)
HUGESSEN J.
[1] This is an application to review and set aside a decision of a Visa officer. At issue is the officer"s assessment of the factor "Personal Suitability" which is Factor 9 in Schedule 1 to the Immigration Regulations, 1978 . The relevant portion of the Regulation reads:
| 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. |
[2] In her letter to the applicant, the Visa Officer explained her award of points under this Factor in the following terms:
In awarding you a score of four for personal suitability, I took into account the lack of any firsthand experience of Canada. I believe that your expectations of Canada are unrealistic. You have never been to Canada, have no relatives or close friends established there to assist you, nor have you demonstrated that you would be able to obtain employment in your field in Canada. In the United Kingdom, you have been been [sic] residing illegally for a number of years, you have been employed illegally and have not been paying taxes, thereby showing disrespect for UK immigration, employment and tax law. You have not demonstrated initiative in researching the job market in Canada to locate potential employers but instead have relied soley [sic] on contacts supplied by your consultant. For all of these reasons, you have shown a lack of motivation, adaptability and resourcefulness.
[3] There are, in my view, three serious problems with that paragraph.
[4] First, is the Immigration Officer"s mention of
[5] the applicant not having relatives or close friends established in Canada to assist him. In my view, having or not having relatives or close friends in Canada simply cannot be described as a personal "quality" similar to those which are listed in Factor 9 quoted above. There are other provisions in the Act and in the Regulations where the existence of relatives in Canada may be taken into account but it is not a factor, in my view, to be considered in assessing personal suitability.
[6] Second, the Visa Officer"s mention of the applicant"s failure to demonstrate that he would be able to obtain employment in his field in Canada constitutes, in my opinion, a clear case of "double counting". Factor 4, which is also part of Schedule I, is entitled "Occupational Factor" and the first paragraph in Column 2 of the schedule reads:
Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation.
[7] Those words are almost identical to the quoted words used by the Visa Officer in assessing personal suitability. It is well settled that one cannot double count. It is, of course, permissible to take into account factors which may have been taken into account for other reasons in other parts of the schedule but I am quite unable to distinguish what the Visa Officer says in her letter in the quoted portion from what she was required to assess under Factor 4. Furthermore, a failure to demonstrate an ability to obtain employment in Canada is also not a personal "quality" similar to those listed in Factor 9.
[8] Third, is the Immigration Officer"s expressed concerns about the applicant"s illegal entry to the United Kingdom, his illegal employment in the United Kingdom and his failure to pay taxes in that county. I cannot read the sentence in which she states those concerns as being anything but an expression of concern for the applicant"s moral character. I understand that the Immigration Officer, in her affidavit, has attempted to cast a different light on the concerns which she expressed in her letter but, in my view, it is not open to her to change the grounds upon which an application has been refused. That is what has been attempted here. I would only add that I do not deny that the applicant"s failure to pay taxes in the United Kingdom might conceivably become relevant under the heading of "Personal Suitability" if it were expressed and considered only from the point of view that he was unable to support himself except by failing to pay taxes. That, however, is not the way it is expressed in the letter and I am quite satisfied that was not the sentiment that was in the Immigration Officer"s mind when the letter was written.
[9] It follows from what I have said that the decision cannot stand. However, in the paragraph which I read at the beginning of these reasons in which the Immigration Officer explains her decision there are a number of other considerations which were properly taken into account. It is, of course, quite impossible for me to know what weight the Immigration Officer gave to each of those factors and indeed what weight was attached to the factors which were improperly considered. It may be, given the rather fluid nature of the assessment of personal suitability, that even if the improperly considered factors had been excluded the ultimate score would not have been very different. Since it is impossible to tell, the only solution is to send the matter back for reassessment and I think such reassessment should be of the entire application not merely of the item "Personal Suitability". I propose to enter an order to that effect after hearing if counsel have any submissions to make on whether there is a question of general importance raised in this case.
"James K. Hugessen"
Judge