Date: 19990503
Docket: IMM-3586-98
BETWEEN:
MUSTAFA MANIRUZZAMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks to have a decision of a visa officer that refused to grant him permanent residence in Canada set aside. The applicant applied for landing under the assisted relative category, under the occupation bank utility clerk. He was awarded 62 points by the visa officer. He needed 65.
[2] Both counsel agree that an error was made in the assessment of the number of points that he should have been awarded for his educational achievement. The visa officer awarded him 15 points, he should have been awarded 16.
[3] It is also clear that the visa officer did not properly assess his reading ability. She awarded the applicant 3 points for his speaking ability because she found him to be fluent in English. She awarded him 2 points each for his reading and writing abilities because she found that he read and wrote English well. She apparently tested his writing and reading ability by asking him to read his resume, which he had prepared in English, and to identify the errors therein. She had identified 14 errors (one is not in fact an error). He found three errors. This is not a test of his reading skill, it is a test of his ability to edit a text that he has written. There is nothing on the record that shows that his reading ability was tested.
[4] I turn then to the visa officer's assessment of the applicant's personal suitability. She awarded the applicant 4 points out of a possible 10. This is an area of assessment where visa officers have great discretion. Nevertheless, that discretion must be exercised in a principled and reasonable way. The Supreme Court in Chen v. Canada (M.E.I.), [1995] 1 S.C.R. 725, approved Mr. Justice Strayer's decision at (1991), 13 Imm.L.R. (2d) 172 (F.C.T.D.), which made it clear that the assessment of personal suitability required by the Immigration Regulations, 1978, SOR/78-172, must be directed to whether the person is likely to be able to support themselves economically in Canada. The awarding of units under that heading is described in Column II, Schedule I of the Regulations:
| to reflect the personal suitability of the person and his dependents to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities. |
[5] The visa officer's refusal letter reads:
| . . . I have concluded that you would experience difficulty in establishing in Canada . . . You have done little research on the professional requirements of your intended industry in Canada and have made little effort to learn about Canada. Furthermore, you were unable to demonstrate that you had done any significant preparation for this proposed move to Canada . . . |
| . . . You informed me that you have already started to apply for bank teller positions in Canada and showed me your personal resume. |
[6] The applicant is employed, and has been since 1990, by the Australia/New Zealand bank, the ANZ Gindlays Bank Ltd., in Dhaka. He describes the Bank as one of the largest and most modern foreign banking groups in South Asia. He states that the branch at which he works is the one preferred by many western diplomats in Dhaka including members of the Canadian High Commission and, that it is computerized, it utilizes an "ATM" and follows modern western banking management systems.
[7] I turn then to descriptions given by the visa officer and the applicant of the officer's interview with the applicant. There is no significant disagreement concerning what questions were asked at the interview.
[8] The visa officer's CAIPS notes read:
| Suitability - Applicant unable to demonstrate that he has made any effort to learn about the banking industry in Cda (his intended industry) or to learn about Cda. [Underlining added.] |
The applicant's affidavit reads:
| 8. She [the visa officer] asked me what preparations I had made for my immigration to Canada. I mentioned I had been corresponding with my relatives in Canada and collected a lot of information from them. I showed her several issues of Canadian Banker Magazine I had obtained and reviewed, primarily the employment listings, plus several pages of relevant job listings I obtained from Canadian newspapers and the internet. Based on the advertised required credentials for the jobs, I was confident I could meet professional requirements for my profession in Canada. I told her that I had already applied for several jobs but had not received any replies, which I considered normal in the circumstances. What employer in Canada would hire someone not yet with legal status in Canada? The visa officer's reaction to my efforts was negative, stating that they were insufficient and that I should have been more actively seeking a job for a much longer period of time. This did not make sense to me since the immigration process itself had taken over two years and I know that employers in Canada are unlikely to respond to or hire someone who does not yet have legal status in Canada. |
[9] The officer's CAIPS notes read:
| He [the applicant] could not name the 5 chartered banks of Cda. |
The applicant's affidavit reads:
| 6. The interview started with her asking me to name the five major banks in Canada. I was only able to name four: the Royal Bank of Canada, CIBC, Toronto Dominion Bank and Bank of Nova Scotia. |
[10] The officer's CAIPS notes read:
| He could not tell me who sets the prime lending rate for Cda. What role the bank of Cda plays in the banking industry. |
The applicant's affidavit reads:
| . . . She asked what are the current lending rates of the banks, I answered that it varies but I was not exactly sure of the current prime lending rates in Canada. |
[11] The officer's CAIPS notes read:
| . . . [he] had not heard of Bay Street . . . |
The applicant's affidavit reads:
| . . . She then asked me where the banks were located. I was a bit surprised by the question and could not answer it, but she indicated their headquarters were on Bay Street in Toronto. It seemed important to the visa officer that I did not know about Bay Street. |
[12] In fact, none of the five chartered banks have a head office on Bay Street and the headquarters of two of them are in Montreal.
[13] The officer's CAIPS notes read:
| [He] tells me that after arriving in Cda, he will need to study and obtain a banking diploma, but could not tell me which academic institution would give him such a diploma. Has not made any effort to learn about the requirements of his intended occupation in Cda. [Emphasis added.] |
The applicant's affidavit reads:
| . . . She asked me what additional education I needed in order to work as a Bank Utility Clerk in Canada. The question was posed suggesting that there was indeed some additional education requirement I would face in Canada. I was unaware of any additional education requirement and answered like in Bangladesh employees are often required to obtain a Banking Diploma. |
[14] In fact, the visa officer's question was misleading since there are no additional educational requirements that the applicant must fulfil. In addition, it is quite inaccurate to say that he had "not made any effort to learn about the requirements of his intended occupation" when he had gone even further and applied for jobs.
[15] The officer wrote in her CAIPS notes:
| He states that the unemp rate in Toronto is 5-7% only . . . |
The applicant in his affidavit states:
| She asked me why I had chosen Toronto as my destination in Canada, and I indicated I had heard from several sources, including my sister-in-law, that the economy was performing very well there. She asked me what the jobless rate in Toronto was, I said I recalled hearing between 5 and 7%, but she stated the unemployment rate in Toronto is 10%. I have subsequently read that the unemployment rate was between 8 and 9% in Toronto. |
[16] Counsel for the applicant suggests that at the relevant time, the unemployment rate was indeed 7%. I have no evidence whether this was so. But, there is also no evidence to support the visa officer's assertion that it was 10%. It may very well have been closer to 7% than to 10%.
[17] The visa officer asked the applicant general knowledge questions about Canada. She wrote in her CAIPS notes:
| He could name only a few other cities [other than Toronto], VCR, MTL, OTTAWA |
| . . . |
| He could name only one more province in Cda, B.C. But was unsure whether this was situated on the east or west coast. Informs me VCR is found on the east coast of Cda. |
The applicant's affidavit reads:
| . . . She asked me to name the major cities in Canada, and I named Toronto, Montreal, Ottawa and Vancouver. I am not yet completely familiar with the geography of Canada, but when asked was able to indicate that Vancouver was a coastal city, but I was unsure however whether this was the east or west coast of Canada. |
| . . . |
| 7. She asked me very few questions about my current job and working experience. She focused the interview on detailed knowledge about Canada and the Canadian banking industry. |
| . . . |
| 13. Details such as the prime lending rate in Canada, the location of head offices of the major banks, the distinctions between various types of banking facilities in Canada, etc. could very easily and quickly be learned after arrival in Canada. The main thing is that I have relevant work experience to find and perform the functions of a Bank Utility Clerk in Canada. I think the visa officer focused too much on whether I had a very detailed knowledge of Canada and the Canadian banking industry, and not on my relevant work experience and credentials, my prudent search for information about employment opportunities in my profession in Canada, the presence of family in Canada, and available funds for resettlement, etc.. I also believe that my ability to function in more than one language and deal with certain cultural issues may be considered of benefit to a potential employer in Canada. |
[18] The visa officer in her affidavit does not dispute the applicant's description of the questions asked at the interview. She states that the questions had been posed "to gauge how much preparation and research effort the Applicant had made to learn about the living conditions in Canada and the requirements of his intended occupation, that being bank utility clerk."
[19] She also states in her affidavit that he had shown her "some newspaper job advertisements that he was considering", and that she noted that "all of these job advertisements were for "bank tellers", not his intended occupation" (emphasis added). A review of the CCDO job descriptions for bank utility clerk (4135-182) and bank teller (4133-110) reveals that there is very little difference between these two occupations. One can question why the applicant's willingness to consider the occupation of bank teller is not a demonstration of adaptability, rather than inadequate preparation.
[20] In addition, the visa officer's focus on his failure to become more knowledgable about Canada must be considered in the context in which the applicant found himself. He had applied for permanent residence two years before. He had been paper screened and discouraged from proceeding further. He persisted, however, and insisted that he be given an interview. He was being interviewed, then, in a situation in which he had been actively discouraged from proceeding with his application, and he could have no firm expectation that he would be accepted for permanent residence.
[21] The above review shows that the visa officer placed an inordinate amount of weight on relevant but not central factors (e.g., his knowledge of the geography of Canada). At the same time, she appears to have ignored or not explored relevant areas. When assessing personal suitability, the characteristics of "adaptability, motivation, initiative, [and] resourcefulness" are to be assessed. While the applicant's present knowledge of Canada and the banking system are relevant, a broader evaluation is required to assess the above described characteristics. This is particularly true in a situation such as the present where an applicant is one or two points short of the required total.
[22] The visa officer may have misunderstood what the function of a bank utility clerk entails. She may have thought that it is a more senior position in the banking system than it appears to be from the CCDO description.
[23] For the reasons given above, the decision under review was set aside and referred back to a different visa officer for consideration.
Judge
OTTAWA, ONTARIO
May 3, 1999