Federal Court Decisions

                                                                                                                               Date: 20040203

                                                                                                                  Docket: IMM-1497-02

                                                                                                                    Citation: 2004 FC 182

BETWEEN:

                                              MOHAMMED JAHANGIR ALAM

                                                                                                                                           Applicant

                                                                          and

                             MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                         Respondent

                                          REASONS FOR ORDER AND ORDER

MACTAVISH J.

[1]                 Mohammed Jahangir Alam applied for permanent residence in Canada. His application was assessed by a visa officer at the Canadian Embassy in Manila. Mr. Alam was awarded 71 assessment units, more than enough to qualify him for migration to Canada. Nevertheless, the visa officer exercised her discretion, and refused Mr. Alam's application for an immigrant visa. According to her decision, the visa officer was of the view that the number of assessment units awarded to Mr. Alam did not reflect his chances of becoming successfully established in Canada.

[2]                 Mr. Alam seeks to have the decision of the visa officer set aside, alleging that the visa officer erred in applying her negative discretion to refuse his application. Mr. Alam further argues that the visa officer erred in her assessment of his personal suitability, and that she took irrelevant considerations into account in her assessment of his application.

Background

[3]         Mr. Alam was born on January 1, 1971, in Mymensingh, Bangladesh, and has lived in Bangladesh his entire life. In June 1999, he applied for immigration to Canada in the independent skilled worker category, basing his application on his academic training and experience in civil engineering. After Mr. Alam married on August 8, 1999, he modified his application to include his wife.

[4]                 By letter dated April 9, 2001, Mr. Alam was advised that his interview would take place on June 19, 2001. Mr. Alam did not attend his scheduled interview as he claims not to have received the interview notice. A second interview was then scheduled. After an exchange of correspondence, a new date was set for Mr. Alam's interview, which was to take place in Manila, in the Phillippines, on January 14, 2002.

Decision of the Visa Officer

[5]         The decision of the visa officer is contained in the notes recorded in the Computer Assisted Immigration Processing System (the CAIPS notes), which are supported by the affidavit of the visa officer. The CAIPS notes indicate that the visa officer assessed Mr. Alam on the basis of each of the relevant factors, and awarded him a total of 71 units of assessment, including two units with respect to his personal suitability.

[6]                 Although the officer noted that Mr. Alam had accumulated a sufficient number of units to qualify him for migration to Canada, she denied his application because she was of the opinion that the number of assessment units did not reflect his chances of becoming successfully established in Canada.

[7]                 In the CAIPS notes, the visa officer observes that Mr. Alam had left some sections of his application form blank. She further noted that this was the third time since 1999 that Mr. Alam had submitted an application for permanent residence, and that each time, the form had been incomplete.

[8]                 Mr. Alam advised the officer that he did not intend to go to work immediately upon his arrival in Canada, but that he would pursue a Master's degree instead. The officer reportedly asked Mr. Alam if he knew what he would have to do to get his professional status in Canada. Mr. Alam's response is recorded as "Did not know, felt all he would have to do was go get his Masters degree". The officer goes on to note that Mr. Alam " ... has done no research in moving to Canada, and stated so during interview".

[9]                 The CAIPS notes indicate that the visa officer discussed her concerns with Mr. Alam, and record the officer's conclusion:

I am not satisfied that the units awarded accurately reflect ability to settle in Canada. Applicant has made no effort to prepare for migration to Canada beyond CCPE assessment which is stated within the kit. Could not accurately complete application form at any point in time. Does not intend to practice his intended profession for some time on arrival in Canada intends to study first.

The visa officer then sought the approval of a senior immigration officer to refuse the application, which approval was granted.

Issues

[10]             Mr. Alam raises three issues:

1.          Did the visa officer err in applying negative discretion pursuant to section 11(3) of the Immigration Regulations to refuse the otherwise successful application?

2.          Did the visa officer err in her assessment of Mr. Alam's personal suitability?

3.          Did the visa officer take into account irrelevant considerations?

The Legislative Scheme

[11]             Paragraph 9(1)(b)(k) of the (former) Immigration Regulations, 1978, SOR/78-172 provides that a visa officer may issue an immigrant visa where a candidate has received an award of at least 70 units of assessment. However, paragraph 11(3)(b) of the same Regulations gives a visa officer the discretion to refuse an application if, in the opinion of the visa officer:

... there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.

Standard of Review

[12]       The respondent cites the following passage from Lim v. Canada (Minister of Employment and Immigration) (1989), 29 F.T.R. 227, (upheld on appeal (1991), 121 N.R. 241), for the appropriate standard of review to be applied with respect tothe decision of a visa officer:

To succeed, the applicant must do more than persuade me that I might have reached a different conclusion from the assessment. He must satisfy me that, as a result of an error in interpretation of the statute, the visa officer failed to carry out the assessment that was required of him, or in the alternative, in carrying out such an assessment, he failed in the duty of fairness to the applicant.

[13]            More recently, it has been held that the appropriate standard of review for a discretionary decision of a visa officer is that articulated by the Supreme Court of Canada in Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2. There, the Supreme Court of Canada stated:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise 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. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

(See, for example, To v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 696 (QL) (C.A.), Liu v. Canada (MCI), 2001 FCT 751 and Nehme v. Minister of Citizenship and Immigration, 2004 FC 64))

[14]            With this understanding of the standard of review, I turn to the issues raised by Mr. Alam.

Analysis

[15]       Although Mr. Alam has identified three issues in his application, it appears that the central issues are the visa officer's assessment of Mr. Alam's personal suitability, and the officer's reliance on that assessment in exercising her discretion to refuse Mr. Alam's application.

[16]            The bulk of Mr. Alam's submissions are based on his belief that the visa officer failed to properly consider his plan to obtain a Canadian education prior to seeking work in Canada. Mr. Alam submits that the officer improperly based her assessment of his personal suitability on the fact that he was not going to join the workforce immediately upon his arrival in Canada, and therefore improperly assessed his personal suitability.

[17]            Mr. Alam submits that there is no obligation on an applicant to show immediate employment plans, especially where, as in this case, the applicant has sufficient assets to support his family during his period of study. According to Mr. Alam, the visa officer improperly fettered her discretion in seeming to require that an applicant demonstrate the intention to begin work immediately upon arrival in Canada. In this regard, Mr. Alam relies on the decision of this Court in Margarosyan v. Minister of Citizenship and Immigration, IMM-331-96. In Margarosyan, Gibson J. set aside the decision of a visa officer who had rejected an application for permanent residence because the applicant did not meet the definition of a 'self-employed person', as she did not intend to establish her business "upon [her] arrival in Canada". The visa officer did not question the bona fides of the applicant's intent to establish a business in Canada in due course. Gibson J. noted that the words "upon your arrival in Canada" are not found in the definition of 'self-employed person', and concluded that it was not necessary that an applicant establish a business within any finite period after arriving in Canada.

[18]            Mr. Alam submits that given his plans to attend school, there was no need for him to show that he had made job search efforts. In Mr. Alam's submission, there was no evidence before the officer that he could not successfully establish himself in Canada as an engineer, after a period of study.

[19]            I have reviewed the visa officer's CAIPS notes. These notes are supported by an affidavit from the officer, which provides considerable elaboration on the officer's reasoning in refusing the application. It is apparent from the affidavit that, at the time that the affidavit was signed, the officer continued to have a specific recollection of the interview with Mr. Alam. Nevertheless, the affidavit was sworn several months after the interview, presumably at a point where the officer was aware that her decision was being challenged. In the circumstances, I prefer to focus my attention on the reasons expressed in the CAIPS notes, and to give little weight to the after-the-fact explanation provided by the officer.

[20]            In my view, the facts of this case are readily distinguishable from those in Margarosyan. The concern of the visa officer in this case was not with the fact that Mr. Alam did not intend to join the workforce immediately upon his arrival in Canada. Rather, it is apparent from a review of the CAIPS notes that Mr. Alam did not present himself well in his interview. Mr. Alam appears to have been unprepared. The visa officer was concerned by the vagueness of Mr. Alam's plans, and the lack of research that he had done regarding his prospects for a life in Canada. Further, Mr. Alam had filed three sets of forms with Canadian authorities between 1999 and January, 2002, and had not been able to successfully complete any of them. All of these factors properly raised concerns in the mind of the visa officer with respect to Mr. Alam's motivation, initiative, ability and resourcefulness. (Kaura v. Minister of Citizenship and Immigration) (1997), 125 F.T.R. 227 at 229)

[21]            A visa officer is given broad discretion under paragraph 11(3)(b) not to award an immigrant visa, even though a candidate may have met the threshold in terms of units of assessment. (Covrig v. Canada (Minister of Citizenship and Immigration), 104 F.T.R. 41). However, this discretion is not unlimited: only those factors that go to the ability of the applicant to become established in an economic sense are permissible considerations. (Chen v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 350 (T.D.))

[22]            There is a heavier onus on a visa officer to justify the exercise of negative discretion under paragraph 11(3)(b) of the Regulations than there is with respect to the exercise of, or refusal to exercise a positive discretion under paragraph 11(3)(a). (Hameed v. Minister of Citizenship and Immigration, (08 January 2001) A-503-98 (FCA), Chen, supra.)

[23]            In this case, the concerns identified by the visa officer are factors that clearly go to Mr. Alam's ability to become established in Canada, in an economic sense. A visa officer is not obliged to inform an applicant that the officer is developing a negative impression of the applicant as the officer's concerns arise, particularly where the concerns relate to something that is not amenable to change, such as the applicant's personal suitability. (Savin v. Minister of Citizenship and Immigration, [1995] F.C.J. No. 1426) That said, the officer's CAIPS notes clearly indicate that she discussed her concerns with Mr. Alam in the course of the interview. Accordingly, I am not persuaded that there has been a breach of procedural fairness in the process followed here.

[24]            For these reasons I am satisfied that the visa officer properly exercised her discretion in refusing Mr. Alam's visa application. Accordingly, this application is dismissed.

Certification

[25]       Mr. Alam proposes the following question for certification:

Is it the duty of an applicant to immediately enter into the intended profession upon arrival in Canada?

I have found that it was Mr. Alam's lack of preparation for his move to Canada, and not his intention to delay his entry into the workforce, that caused the visa officer to refuse his application. As a consequence, I am not satisfied that the proposed question would be dispositive of this case, and decline to certify the question.

                                                  ORDER

THIS COURT HEREBY ORDERS that:

1. The application for judicial review is dismissed.

2.    No serious question of general importance is certified.

    "Anne L. Mactavish"

                                          

Judge   

                         

OTTAWA

                                                  

                         FEDERAL COURT OF CANADA

                                     TRIAL DIVISION

Date: 20040203

Docket: IMM-1497-02

BETWEEN:

MOHAMMED JAHANGIR ALAM

                                                                                         Applicant

                                                 and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                                           

REASONS FOR ORDER and ORDER

                                                                           

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

                                                                DOCKET: IMM-1497-02

STYLE OF CAUSE:

                   MOHAMMED JAHANGIR ALAM v. MCI

PLACE OF HEARING:                 Toronto, Ontario

DATE OF HEARING:                   January 29, 2004

ORDER AND REASONS FOR ORDER:

Mactavish J.

DATED:            February 3, 2004

APPEARANCES:

SOLICITORS OF RECORD: