Date: 20020531
Docket: IMM-5200-00
Neutral Citation: 2002 FCT 620
BETWEEN:
PRINAL PUROHIT
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
KELEN J.:
[1] This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7 for judicial review of the decision of visa officer Doug Haaland, dated September 7, 2000, wherein the application for permanent residence was refused on the grounds that:
i. the applicant would be unable to support himself and his wife and therefore falls within the inadmissible class of persons described in paragraph 19(1)(b) of the Immigration Act, R.S.C. 1985, c.I-2; and,
ii. the applicant failed to obtain at least 70 units of assessment, the minimum required to comply with the selection criteria for immigration to Canada so that the applicant comes within the inadmissible class of persons described in paragraph 19(2)(d) of the Act.
[2] The issues in this matter are whether the officer breached a principle of fairness:
- · by not specifically advising the applicant of the officer's concerns regarding the insufficiency of funds available to the applicant; and,
- · by considering irrelevant factors such as job offers in assessing the applicant's personal suitability.
FACTS
[3] The applicant, a citizen of India, 21 years of age at the time of his interview, applied through the Canadian High Commission in New Delhi, India for permanent residence status. On September 6, 2000, the applicant attended at an interview with officer Haaland. Following the interview, the applicant received a letter dated September 7, 2000 notifying him of the officer's negative decision.
Decision of Officer Harland
Letter of refusal
[4] By letter dated September 7, 2000, the officer set out the amount of units awarded to the applicant towards the required 70 units, as follows:
| Category |
NOC |
|
Age (20) |
8 |
|
Occupational Factor |
5 |
|
ET.F./S.V.P. |
15 |
|
Experience |
4 |
|
Demographic Factor |
8 |
|
Education |
10 |
|
Arranged Employment |
0 |
|
Language |
12 |
|
Personal Suitability |
3 |
|
Total |
65 |
[5] The officer then concluded as follows:
I only awarded you 3 points for personal suitability as I was not convinced that you had undertaken significant research into Canada or the Canadian labour market. This demonstrated a lack of initiative and motivation on your part.
You have also not satisfied me that you possess any significant amount of financial resources to aid your settlement in Canada and I am conscious of the limited employment prospects and settlement potential indicated by the units of assessment awarded herein. It is my opinion, therefore, that you would be unable to support yourself and your wife for care and support. Accordingly, you come within the inadmissible class of persons described in paragraph 19(1)(b) of the Immigration Act. You are therefore not a person to whom I may issue immigrant visas in accordance with section 9(4) of the Immigration Act.
Pursuant to section 9(1)(b)(i) of the Immigration Regulations, 1978, you have failed to obtain at least 70 units of assessment, the minimum required to comply with the selection criteria for immigration to Canada. You, therefore, come within the inadmissible class of persons described in section 19(2)(d) of the Immigration Act and your application has been refused...]
CAIPS Notes
[6] In his CAIPS notes, the officer entered the following comments:
[...IS NOT AWARE OF SPECIFIC JOB OPPORTUNITIES BUT SAYS HE KNOWS THERE IS WORK FOR PEOPLE WITH HIS TRAINING AND EXPERIENCE IN CANADA. LEARNED ABOUT CANADA THROUGH INTERNET.
ADVISED THAT I WOULD CAREFULLY CONSIDER ALL INFORMATION PROVIDED BEFORE RENDERING A FINAL DECISION, BUT THAT MY INITIAL ASSESSMENT WAS THAT I DID NOT THINK I WOULD BE ABLE TO APPROVE HIS APPLICATION. HOWEVER, MY FINAL DECISION WOULD BE DELIVERED TO HIM IN WRITING.
[...]
HAS INSUFFICIENT PERSONAL ASSETS TO BE ABLE TO REASONABLY ESTABLISH HIMSELF AND SPOUSE IN CANADA
[...]
HAS NO REALISTIC UNDERSTANDING OF CDN LABOUR MARKET, NOR OF HIS OPPORTUNITIES FOR EMPLOYMENT. CURSORY AND RECENT INQUIRIES WITH PLACEMENT AGENCIES, NONE OF WHICH HAVE OFFERED ANY REAL OR MEANINGFUL INFORMATION. HAS GENERAL BOOK KNOWLEDGE OF CANADA.
HAVING NO REALISTIC OR MEANINGFUL KNOWLEDGE OF CANADA, OF LABOUR MARKET CONDITIONS NOR OF POTENTIAL EMPLOYMENT OPPORTUNITIES, I AM NOT PREPARED TO AWARD MORE THAN 3 UNITS OF ASSESSMENT FOR P.S. AS HE HAS DEMONSTRATED A LACK OF MOTIVATION OR INITIATIVE.
CONSEQUENTLY HE FAILS ON POINTS, WITH 67 IN TOTAL...]
RELEVANT LEGISLATION
[7] The relevant sections of the Immigration Act R.S.C. 1985, c. I-2 read as follows:
| Visas and Special Authorizations Applications for visas 9.Issuance of visa (4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
[...]
Inadmissible Classes Inadmissible persons 19. (1) No person shall be granted admission who is a member of any of the following classes: [...] (b) persons who there are reasonable grounds to believe are or will be unable or unwilling to support themselves and those persons who are dependent on them for care and support, except persons who have satisfied an immigration officer that adequate arrangements, other than those that involve social assistance, have been made for their care and support; [...] Inadmissible classes where entry permitted (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: [...] (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
|
|
Visas et autorisations spéciales Demande de visa 9. [...]
Délivrance de visas (4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements.
[...]
Catégories non admissibles Personnes non admissibles 19. [...]
Autorisation de séjour à des personnes non admissibles (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui:
[...]
d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.
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[8] The relevant sections of the Immigration Regulations, 1978 SOR/78-172 read as follows:
| SELECTION CRITERIA 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I; [...]
9. (1) Subject to subsection (1.01) and section 11, where an immigrant, other than a member of the family class, an assisted relative, or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if [...] (b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8,
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment,
|
|
CRITÈRES DE SÉLECTION 8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint :
a)dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
[...]
9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se rétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si [...] b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8 :
(i) dans le cas d'un immigrant, autre qu'un entrepreneur, un investisseur, ou un candidat d'une province, il obtient au moins 70 points d'appréciation,
|
STANDARD OF REVIEW
[9] Teitelbaum J. in Liu v. Canada (Minister of Citizenship and Immigration),[2001] F.C.J. No. 1125, 2001 FCT 751(F.C.T.D.), wrote:
The appropriate standard of review for this type of decision - a discretionary one by a visa officer - is the same as that enunciated by McIntyre J. in the Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7 - 8:
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.
In Wang v. Canada (M.C.I.),[2001] F.C.J. No. 95 (IMM-2813-00, January 25, 2001), Rouleau J., referring to the above cited passage as well as to the Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, held that the appropriate standard of review should be reasonableness simpliciter [emphasis added].
Accordingly, reasonableness simpliciter is the appropriate standard to review the officer's decision in this case. The Court will not set aside a decision of an immigration officer, nor substitute its decision for an officer's, unless that decision was unreasonable or clearly wrong.
ANALYSIS
[10] This application raises two separate and distinct issues. If the applicant fails on the first issue, it is not necessary to consider the second. However, the applicant must succeed on both issues for the Court to set aside this decision.
First Issue
Fair opportunity to address the issue of sufficiency of funds
[11] The applicant submits that he did not have a fair opportunity at the interview to address the officer's concerns that he had insufficient funds with which to immigrate to Canada and support himself and his family.
[12] Paragraph 19(1)(b) of the Act provides that no person shall be granted admission to Canada if there are reasonable grounds to believe that they are unable to support themselves and those persons who are dependent on them for care and support. The affidavit of the visa officer states that the applicants are informed in the "application kit" that they must prove that they have enough money to support themselves and their dependents for at least six months after they arrive in Canada. The application kit advises that they must have at least C$10,000 plus C$2,000 for each dependent.
[13] At the interview, the applicant was questioned about his financial resources. The duty of fairness does not require that the visa officer inform the applicant of the requirement for sufficient funds to immigrate to Canada. That requirement is fully explained in the application kit. The duty of the visa officer is to question the applicant on his personal transferable funds, which the visa officer did, and found that the applicant was short of the minimum amount of settlement funds required. The insufficiency of available funds was obviously raised at the interview, as can be inferred by the applicant's comment that his parents would be able to assist him with additional funds.
[14] I am satisfied that the applicant was informed of the requirement that the family must bring with them sufficient funds to support themselves and their dependents during their initial settlement, and that the applicant was provided with an opportunity to address that problem. When confronted with the fact that the applicant had less than the minimum amount required, the applicant stated that his parents would provide him with financial assistance. The visa officer has the discretion to decide whether that assurance meets the requirements of section 19(1)(b). Accordingly, I am satisfied that the applicant was afforded a fair opportunity to address this issue.
Second Issue
Irrelevant Factors
[15] The applicant submits that the officer erred in considering irrelevant factors such as the lack of job offers resulting from the applicant's inquiries to Canadian companies, and the officer's awareness of "limited employment prospects"in assessing the personal suitability of the applicant.
The visa officer can take into account the applicant's initiative, motivation and resourcefulness in settling in Canada when assessing personal suitability. This Court has held that part of personal suitability includes the applicant's effort to find employment. As McKeown J. held in Radmanesh v. Minister of Citizenship and Immigration, IMM-5759-99 at paragraph 7:
It is clearly established in the jurisprudence that a visa officer cannot engage in double counting when assessing an applicant on the basis of the criteria outlined pursuant to subsection 8(1) of the Immigration Regulations. Notwithstanding as general principle, it has also been established that it is acceptable to consider one or more of the other enumerated factors in assessing personal suitability as long as it is appraised from a different perspective. (Emphasis added.)
In this case, the visa officer awarded the applicant three points for personal suitability because the visa officer felt that the applicant had not undertaken appropriate research into Canada or the Canadian labour market. This factor was considered from the perspective of personal suitability, in that the visa officer decided that this demonstrated a "lack of initiative and motivation". Personal suitability requires that the visa officer assess the applicant's initiative, motivation, and resourcefulness as part of the applicant's ability to establish himself in Canada.
[16] The visa officer also considered the applicant's "limited employment prospects"as part of the first issue; whether the applicant has made adequate arrangements to support himself and his dependents as required under subsection 19(1)(b) of the Act. The immigration officer is entitled to consider, in addition to the funds which the applicant would bring to Canada, whether the applicant's employment prospects would ameliorate the fact that the applicant has less than the minimum funds required for immigrating to Canada. The visa officer was not imposing irrelevant or new factors on the applicant's qualification. Rather, the visa officer was looking to the applicant's employment prospects to determine the likelihood that the applicant would be able to support himself and his wife upon landing. Accordingly, I am not convinced that the visa officer's decision in this respect is unreasonable or clearly wrong.
[17] Justice Rouleau in Bakhtiania v. Canada (M.C.I.), [1999] F.C.J. No. 1023 held at paragraph 11:
Personal suitability is a factor which allows a visa officer to form an opinion as to whether the applicant will succeed economically in Canada ...Clearly whether the applicant and her family has sufficient funds to relocate and establishes themselves in Canada is a relevant consideration in assessing her capacity to successful settle in this country...
Accordingly, the factor of personal suitability allows a visa officer to indicate, by awarding a number of units of assessment, whether the applicant for an immigration visa, in the opinion of the visa officer, will succeed economically in Canada. The visa officer can take into account a number of relevant considerations including initiative, motivation, resourcefulness, as well as perspectives which arise from the factors for which the visa officer has already assessed the applicant. The visa officer, in the field, personally interviews the applicant and has the best perspective to assess the personal suitability of the applicant. The Court will not interfere in this assessment unless it is unreasonable, clearly wrong, or predicated upon irrelevant or inappropriate considerations. Such is not the case in this matter.
[18] For the foregoing reasons, this application for judicial review is dismissed. The parties agreed that there was no question for certification on appeal which would dispose of this case.
(signed) Michael A. Kelen _________________________
JUDGE
OTTAWA, ONTARIO
MAY 31, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5200-00
STYLE OF CAUSE: PRINAL PUROHIT
Applicant
- and -
M.C.I.
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 27, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE KELEN
DATED: May 31, 2002
APPEARANCES:
Mr. Max Chaudhary FOR THE APPLICANT
Ms. Kareena Wilding FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Max Chaudhary FOR THE APPLICANT
Barrister & Solicitor
North York, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada