Federal Court Decisions

     IMM-4097-96

BETWEEN:

     WAI HUNG LO

     Applicant

     - and -

     MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

GIBSON, J.:

    

     These reasons arise out of an application for judicial review of a decision of a visa officer at the Commission for Canada in Hong Kong rejecting the Applicant's application for permanent residence in Canada. The application was made by the Applicant on behalf of himself, his spouse and one of his two children, the other being a Canadian citizen. The decision is dated the 11th of October, 1996.

     The decision letter reads in part:

This refers to your application for permanent residence in Canada, and your interview held on October 10, 1996. I have now completed my assessment of your application and regret to inform you that I have determined that you do not meet the requirements for immigration to Canada in the Assisted Relative category.

Pursuant to subsections 8 (1) and 10 (1) of the Immigrations Regulations, 1978 as amended, immigrants in the Assisted Relative category shall be assessed on the basis of each of the factors listed in column I of Schedule I of the Regulations. These factors are: education, specific vocational preparation, experience, occupational demand, arranged employment or designated occupation, demographic factor, age, knowledge of English and French languages and, on the basis of an interview, personal suitability.

     I have assessed you as in the occupation Property Administrator for which you earned the following units of assessment:

     [the total units awarded amounted to 62]

     In order to be selected as an Assisted Relative, you must earn 65 units of assessment. This figure has been reduced from the usual level of 70 in your case to reflect a 5 unit bonus for Assisted Relatives. Nonetheless, you have failed to earn more than the minimum required number of units of assessment.

     There is no other occupation apparent on your application in which you or your spouse are qualified and experienced, and under which your application would be successful.

     I consider the units of assessment which you have been awarded are an accurate reflection of your ability to successfully establish in Canada.

....

     I have also considered other factors in your application and find no other basis for approval.

....

     The Applicant is in his early forties. He is married. He and his spouse have two sons, the older being a Canadian citizen, having been born in Canada. The Applicant's parents, three sisters and one brother live in Canada. All are either Canadian citizens or landed immigrants.

     The Applicant lived and studied in Canada for some seven years. He attended four post-secondary educational institutions in Canada but received no certificate or diploma from any of them. He also undertook post-secondary courses in Hong Kong and received certificates evidencing successful completion. At the relevant time, he had worked for his employer in Hong Kong for over nine years, in his chosen field of property management.

     The Applicant's spouse had been employed as an accountant for over nine years. At the relevant time, she was pursuing courses to qualify as a Certified General Accountant in Canada. Like the Applicant, she lived and studied in Canada, in her case, for over six years.

     The issues on this application centre around the units of assessment accorded to the Applicant for "education" and "personal suitability". If he had been awarded the maximum units of assessment applicable with respect to either of those two factors, he would have earned sufficient units of assessment to qualify in the Assisted Relative category.

     The issues raised on behalf of the Applicant were the following:

1.      whether the Respondent based her decision on an erroneous finding of fact made in a perverse or capricious manner and without regard to the material before her in the assessment of the Applicant's education and personal suitability;

2.      whether the Respondent breached a principle of natural justice or procedural fairness that she was required by law to observe by failing to assess the Applicant's qualifications, education and ability to become successfully established in Canada, and to give the Applicant an opportunity to answer the specific case against him; and

3.      whether the Respondent failed to exercise her discretion in granting special relief by failing to consider possible compassionate or humanitarian grounds.

     The Applicant and his spouse were afforded an interview, albeit that the interview commenced at least one and one-half hours after the appointed time. The interview lasted approximately 20 minutes.

     In her affidavit, the visa officer attests in part as follows:

6. At the beginning of the interview, I explained to Mr. Lo why he was asked to attend an interview. I also made it very clear that should the applicant or his wife have any questions or should something I say be unclear, to question me immediately. Both the applicant and his wife spoke English fluently and appeared to have understood. I also explained that the purpose of the interview was to determine if he would meet the requirements of the occupation under which he had applied, that of a Property Administrator, and to allow him the opportunity to respond to the assessment of his education. In addition, I explained that personal suitability was to be assessed at the interview.

7. Shortly after the interview began I explained my concerns regarding his education and gave the applicant the opportunity to produce any certificate or diploma which he may have received...

....

8. Although the applicant had studied in Canada for over seven years at Y.M.C.A. College, Simon Fraser University, Capillano College and Columbia College, he did not receive a single post-secondary certificate or diploma...

9. After discussing Mr. Lo's work experience and current responsibilities, as well as his time spent in Canada and future plans, I outlined the units of assessment awarded. Mr. Lo appeared to understand the assessment.

10. I awarded the applicant seven points for personal suitability. This score, I believe, accurately reflects the personal suitability of Mr. Lo to become successfully established in Canada, based on Mr. Lo's adaptability, motivation, initiative and resourcefulness. I fully considered the years spent by Mr. Lo in Canada and the fact that he attended four post-secondary institutions over 7 years, without completing a degree or diploma, in awarding points for personal suitability. As the applicant's past education was addressed in the points awarded for education, the presence of family in Canada was addressed in the bonus five points awarded, management experience was addressed in the six points awarded for experience and language was addressed in the 9 points awarded for English ability, I believe that personal suitability was accurately assessed, without doubly counting factors which had already been assessed.

...

12. With regard to positive discretion, I did not believe that this case merited a recommendation for postive discretion as all aspects of the case had been taken into account, and were reflected in the points assessment, and that the points assessment accurately reflected the chances of this applicant of becoming successfully established in Canada.

....

     [underlining added by me for emphasis]

     I have added underlining for emphasis in the quotation of paragraph 6 of the visa officer's affidavit because the underlined words indicate that the "opportunity to respond" related to the assessment of the applicant's education, not of his personal suitability in more general terms and any impact that his pattern of educational pursuits might have had on that factor. I note that in paragraph 9, the visa officer attests that there was some discussion regarding the applicant's time spent in Canada and future plans, although one can speculate on how much time was spent on those subjects given that the interview, in total, lasted some 20 minutes.

     It is clear from the paragraphs quoted from the visa officer's affidavit that she had concerns regarding the pattern of the applicant's educational pursuits, with specific focus on the fact that he did not pursue any course of education in Canada to the point of achieving a certificate or degree.

     In computer notes apparently made by the visa officer following her interview with the applicant and his spouse, she wrote:

I agree, however, that PI [the applicant] should receive only 10 points for education as he was unable to produce a degree, diploma or certificate that required more than form 5 as an entrance requirement.

Awarded PI 7 points for personal suitability. PI and spouse lived in Canada for over 7 years. The fact that neither PI nor spouse ever completed a single degree during that time may be evidence of lack of initiative & /or motivation.

     Thus, I conclude, the pattern of the Applicant's educational pursuits in Canada influenced the visa officer both in respect of her assessment for "education" and "personal suitability".

     I am satisfied that consideration given to the pattern of the Applicant's educational pursuits in Canada, and in particular to the fact that he did not pursue any course of education to the point of a certificate or degree, in relation to the "education" factor, was entirely appropriate and in accordance with the Immigration Regulations, 1978¹. I have greater difficulty with respect to the consideration given to the same concerns in relation to the personal suitability factor. First, nowhere in the material is it evident that the Applicant was notified of the visa officer's concern that the Applicant's pattern of educational pursuits in Canada might evidence a lack of initiative and/or motivation on his part. There is simply no evidence in the record that he was given an opportunity to respond to such a concern. There might well have been a compelling response evidencing initiative and motivation on his part rather than the contrary. Second, failure to give any credit for post-secondary education experience that has not led to a degree or certificate under the "education" factor, and reliance on the same consideration to discount the Applicant's assessment in respect of the "personal suitability" factor, amounts to, I conclude, a form of "double counting" of a consideration, notwithstanding the protestations of the visa officer in this matter to the contrary.²

     On the basis of the foregoing concerns, I am satisfied that the visa officer erred in a reviewable manner. In the result, this application for judicial review will be allowed.

     I am fully cognizant that it is trite law that Courts should not interfere with the excercise of a discretion by a statutory authority merely because the Court might have exercised the discretion in a different manner had it been charged with that responsibility.³ I regard visa officers as "statutory authorities" in the exercise of their function to examine applications for immigration to Canada from abroad. Equally, I am satisfied that visa officers exercise a discretion when they assess "personal suitability", particularly on the basis of an interview, that is addressed to questions of adaptability, motivation, initiative, resourcefulness and other similar qualities. That being said, I cannot but express a concern that a conscious decision of an individual to pursue a broad and varied education without regard to the formalities of obtaining a certificate or degree should be held to be an indicia of lack of motivation or initiative. Indeed, I am satisfied that it may well indicate exactly the contrary. At least traditionally, the pursuit of a degree rather than, or in addition to, an education would appear to have been the norm. It is arguable that those who fly in the face of traditional courses of action, in the conscious pursuit of knowledge in its broadest form, are to be commended rather than penalized. That is not to say that the Applicant in this matter, while he was in Canada, was pursuing knowledge for its own sake. The material before me discloses no information as to why the Applicant attended a range of institutions without receiving a certificate or degree from any of them.

     At the close of the hearing of this matter, I invited counsel to make submissions on certification of a question. Counsel for the Respondent did not recommend certification. Counsel for the Applicant implied that there might be, on the facts of this matter, questions worthy of certification, but did not formulate any question. I am satisfied that this matter turns primarily on its facts. In the circumstances, no question will be certified.

    

                                     Judge

Ottawa, Ontario

June 19, 1997

__________________

     ¹      S.O.R./78-172, as amended

     ²      See Chartrova v. Canada (Minister of Citizenship & Immigration) (1996), 34 IMM. L.R. (2d) 59 (F.C.T.D.) where at p. 61, Madame Justice Reed wrote:
         ....the visa officer not only assessed her language abilities in the context of the units awarded under factor 8 in Schedule 1 (Knowledge of English and French Language), he also used what he considered to be her deficiencies in that area as a reason for not awarding her more points under factor 9 (Personal Suitability).          Madame Justice Reed relied on this "double counting" in allowing that application for judicial review.

     ³      See for example Maple Lodge Farms Limited. v. Government of Canada et al., [1982] 2 S.C.R. 2 at pp. 7 & 8.