Date: 20021016
Docket: IMM-2331-01
Neutral citation: 2002 FCT 1075
BETWEEN:
DILBAGH WALIA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicant, a citizen of India, seeks judicial review of a visa officer's decision dated March 21, 2001 denying his application for permanent residence status in Canada as an independent in the occupations "Draughtsman" (CCDO 2163-110) and "Civil Engineering Technologist" (CCDO 2165-122). The applicant disputes the visa officer's assessment of Factor 9 (personal suitability) in Schedule I to the Immigration Regulations, 1978, SOR/78-172 (the Regulations).
[2] The visa officer awarded the applicant 04 units of assessment for personal suitability. The visa officer deposes that:
I assessed the applicant's personal suitability, taking into account such characteristics as motivation, adaptability, resourcefulness and initiative. The applicant had not done any research by himself about Canada, nor had he looked for a job by himself in Canada. The applicant was relying solely on his brother in Canada to provide him with all necessary information.
This indicated a lack of initiative and resourcefulness, and raised concerns about the applicant's adaptability in Canada. I therefore awarded the applicant four units for personal suitability.
This evidence is supported by the contents of the CAIPS (Computer Assisted Immigration Processing System) notes entered contemporaneous with the interview.
[3] The applicant argues that the visa officer failed to give sufficient weight to the fact that the applicant had an offer of employment in Canada and that he had a telephone conversation with an individual from the prospective employer's office. Thus, the visa officer considered relevant but not central factors. Personal suitability, it is argued, should be read as "related to the ability to support oneself". Since the applicant has a job offer, the test has been met.
[4] On cross-examination, the visa officer stated that she had considered the employment offer when assessing the personal suitability factor. The CAIPS notes specifically refer to the offer and also state that the visa officer explained to the applicant that the application would be refused and why, and that the officer confirmed to the applicant that she had taken the job offer into consideration. The telephone conversation was also noted with an indication that the applicant said he would earn $2,500 per month.
[5] Factor 9 of Schedule I of the Regulations states as follows:
| Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities.
|
|
Des points d'appréciation sont attribués au requérant au cours d'une entrevue qui permettra de déterminer si lui et les personnes à charge sont en mesure de réussir leur installation au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et autres qualités semblables. |
[6] Various factors have been determined to be relevant to the assessment of personal suitability. Here, a review of the record indicates that the information provided by the applicant in his application and during his interview was unremarkable. When the visa officer began to explore the issue of personal suitability, all responses pointed toward the applicant's brother rather than the applicant. The CAIPS notes indicate the following exchange:
Why Canada?
PI wants to provide a better future and life for his family. Chose Canada because he has heard it has a high standard of living. PI has brother and mother in Canada. PI has provided a job offer. His brother found the job for him and asked GSI Construction to send him a letter. Showed letter dated from February 2001. PI otherwise for a job himself. Says he contacted Mr. Crawford from "GSI Construction" last week, who told him he would be earning 2500$ a month. I asked PI if he had any ideas about the cost of life in Cnda [sic]. PI does not know and says he [sic] brother will tell him. PI knows that B.C. is a Canadian province and the main industries there. Says his brother provided him with the information. Did not look for himself. PI has 2 kids. PI has no idea of the cost of university there. Says he will find out once in Canada. His eldest daughter is in the medical field. PI provided evidence of about 30000$ transferable to CDA at the time of interview. PI relying solely on his brother for going to CDA. Has not done any research himself about Canada. Hasn't looked for job himself. All the information PI has about CDA was provided by his brother. PI has not shown any initiative or motivation. PI's relying entirely on his brother raises concerns about his adaptability in Canada
. . .
Explained to PI that application refused and the reasons. Had to explained [sic] to PI that I have to assess his English today and not in a future where his English might be better. Confirmed to PI that I took into consideration the job offer.
[7] In view of the responses provided by the applicant and in view of the fact that this application did not reveal any information upon which the visa officer could conclude that the applicant had exemplified behaviours or experiences that displayed initiative, motivation, adaptability or resourcefulness, the visa officer assessed personal suitability solely in relation to the proposed move to Canada. I am unable to conclude that the visa officer erred in so doing or that her resulting assessment was not reasonably open to her on the evidence she had before her. It is noteworthy that this was the applicant's third attempt to obtain permanent residence status. Given that the onus is on the applicant to satisfy the visa officer that he meets the criteria for immigration to Canada, one would expect that the applicant would be prepared to display significantly more initiative and resourcefulness than he did.
[8] For the reasons given, the application for judicial review is dismissed. Counsel for the applicant suggested the following question for certification:
Is a visa officer barred from considering the assistance of an assisted relative when assessing Factor 9 of Schedule I of the Immigration Regulations, 1978?
Counsel for the respondent opposed certification on the basis that there is no contradiction arising from the case law in relation to this issue therefore it is not a serious question of general importance. Moreover, it will have no application as of March 31, 2003 when the transitional provisions for processing applications under the former Immigration Act expire.
[9] I agree with the respondent that the law is settled that a visa officer, in assessing personal suitability, may consider an area that has already been assessed, provided that the area is considered from the perspective of the applicant's motivation, adaptability, resourcefulness, initiative and other similar qualities that will enable the applicant to become economically established in Canada. Here, the applicant was awarded 5 bonus points under the assisted relative category. It was open to the visa officer to consider family support as a negative indicator with respect to those qualities that are assessed under the personal suitability factor. The proposed question does not raise a serious question of general importance and will not be certified.
___________________________________
Judge
Ottawa, Ontario
October 16, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2331-01
STYLE OF CAUSE: DILBAGH WALIA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, OCTOBER 9, 2002
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
DATED: October 16, 2002
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Mr. James Todd
For the Respondent
SOLICITORS OF RECORD: Mr. M. Max Chaudhary
Barrister & Solicitor
18 Wynford Drive
Suite 707
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent