IMM-1565-97
B E T W E E N:
MOHAMMAD KHALID
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Toronto, Ontario
on Monday, October 20th, 1997 as edited]
ROTHSTEIN, J.:
This is a judicial review of a decision of a visa officer which refused the applicant's application for permanent residence in Canada. The applicant's first argument is that he had applied in the independent class as an economist and that the visa officer wrongly refused to assess him in that occupation. The evidence indicates that on the basis of the material filed in support of the applicant's application there was doubt in the mind of the visa officer as to whether the applicant was a qualified economist. He was called in for an interview. In the interview the visa officer reviewed his qualifications and work experience as an economist and concluded that he was not so qualified and had no such experience. In particular the visa officer's evidence is that the applicant stated to her that he expected he would be unlikely to work as an economist in the United States where he had been since 1992 because the situation in the U.S. and that in Pakistan where he was trained were very different. He had no answer to her question as to why if he was not qualified to work as an economist in the United States he would be qualified in Canada. It is quite clear from the record that the visa officer did not err in determining that the applicant could not be assessed as an economist and that it was appropriate for her in this case on the basis of the evidence before her to assess him as a bank officer.
Then the applicant argues that he had been denied procedural fairness by the visa officer because she did not bring to his attention her concern that his educational documents referred to "Muhammad" rather than "Mohammad". However these documents were submitted by the applicant and he had the opportunity had he chosen to use it to explain the difference in spelling. In any event this consideration does not appear to have affected the number of units awarded to the applicant.
Then the applicant says that the visa officer, in assessing personal suitability, found that the applicant had no relatives in Canada. Zeng v. Canada (M.C.I.) (1991), 121 N.R. 252 (C.A.) and Feng v. Canada (M.C.I.) (1996), 126 F.T.R. 188 per Dubé, J. stand for the proposition that this consideration should not be taken into account in assessing an independent applicant in which the required 70 units of assessment already discounts for this factor. In this case the applicant was awarded 66 units with five units for personal suitability. Even had the visa officer not taken this factor into account, there is some doubt that the applicant would have been awarded at least nine units to reach the minimum 70 unit threshold because of the other factors affecting personal suitability considered by the visa officer. However, it is not for the Court to substitute its view for that of the visa officer as to the assessment of units. It is mathematically possible that had the visa officer not taken into account this irrelevant consideration the applicant might have been awarded 70 units.
Counsel for the respondent referred to decisions of this Court in Stefan v. Canada (M.C.I.) (1995), 35 Imm. L.R. (2d) 21 (F.C.T.D.), Hussain v. Canada (M.C.I.) (1997), 36 Imm. L.R. (2d) 232 (F.C.T.D.) and Hanna v. The Minister of Citizenship and Immigration (January 17, 1997) Federal Court file IMM-1908-96, which found that no reviewable error existed where language ability and education, both factors that are covered elsewhere in the assessment, are looked at again from a different perspective in considering "personal suitability". These cases appear to be distinguishable, although even if they are not Zeng is binding on me. The situation in this case is the same as that considered in Zeng and I conclude that the visa officer erred in "double counting" with respect to this factor.
The visa officer also appears to have considered that the applicant's funds amounted in total to $15,000 and that he had no transferable funds, when in fact he represented that in total he had funds amounting to $44,000 and transferable funds of $18,000.
The applicant's application is remitted to the respondent for redetermination by a different visa officer but solely restricted to the redetermination of the applicant's personal suitability units based on relevant considerations. In view of the summary nature of the redetermination it should be performed as soon as possible.
"Marshall E. Rothstein"
Judge
Calgary, Alberta
October 29, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1565-97
STYLE OF CAUSE: MOHAMMAD KHALID
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: OCTOBER 20, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: OCTOBER 28, 1997
APPEARANCES:
Mr. Mohammed Muslim
For the Applicant
Ms. Claire A.H. le Riche
For the Respondent
SOLICITORS OF RECORD:
Mr. Mohammed Muslim
2131 Lawrence Avenue East
Suite 207
Scarborough, Ontario
M1R 5G4
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-1565-97
Between:
MOHAMMAD KHALID
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER