Date: 20010322
Docket: IMM-374-00
Neutral Citation: 2001 FCT 228
BETWEEN:
SURINDER PAUL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review in respect of a decision dated December 14, 1999 of visa officer, S.K. Brady, (the "visa officer") at the Canadian Consulate General in Detroit, Michigan, to refuse the applicant's application for permanent residence in Canada under the Independent Selection Criteria.
FACTS
[2] The applicant, a citizen of India, applied in the assisted relative category under the occupation of bank utility clerk (CCDO 4135-182). His application was received at the Canadian Consulate General in Detroit, Michigan, on April 29, 1997.
[3] The applicant has completed five years of primary school and six years of secondary school in India. He graduated with a three-year Bachelor of Arts degree from the Gury Nanak Dev University in Amritsar, Punjab.
[4] From 1980 until he came to Canada in 1997, the applicant worked as an utility clerk with the State Bank of Patiala, India. Since July 1998, the applicant has been working in a management capacity at Ravi's Airport Shell in Indianapolis.
[5] A first assessment of the applicant's application was conducted by visa officer Halina Roznawski. This application was refused by letter dated October 9, 1998. However, on October 6, 1999, Campbell J. found a reviewable error in the application of the language criterion specified in Schedule One of the Immigration Regulations, 1978 and ordered that the matter be referred to another visa officer for re-determination.
[6] At the first interview, the applicant presented three letters from Canadian business offering employment. The applicant had presented a job offer letter for the position of office clerk from SCAS Electronic Air Cleaners, another job offer letter for the position of assistant accountant from Five Sun Furniture Ltd., and a job offer letter for the position of sales official from Quality International Foods.
[7] On November 22, 1999, the applicant was interviewed by visa officer, S.K. Brady. At the interview, the applicant presented a new job offer letter for a management position at Petro V Plus gas station.
[8] In a letter dated December 14, 1999, the applicant was advised that his application for permanent residence in Canada was refused.
DECISION OF THE VISA OFFICER
[9] Pursuant to his request, the applicant was assessed under the occupation of bank utility clerk (CCDO 4135-182).
[10] The applicant received 67 units under the bank utility clerk occupation (CCDO 4135-182):
Age 10
Occupational Factor 01
Education/Training Factor 11
Experience 06
Arranged employment 00
Education 15
Demographic Factor 05
English 06
French 00
Bonus 05
Personal Suitability 05
---
Total 67
[11] The visa officer also assessed the applicant's application using the intended occupations of bank utility clerk (NOC 1434.1), bank teller (NOC 1433, CCDO 4133-110) and gas station manager (NOC 0621, CCDO 5130-118), since the applicant had experience in those jobs. The assessments were not favorable.
[12] The visa officer explained that all factors were considered together with no single factor being responsible for the decision. In the applicant's case, the visa officer considered that the assessment had shown that his chances of becoming readily and permanently established were not favorable.
ISSUES
[13] 1. Did the visa officer err in assessing the applicant's language ability?
2. Did the visa officer err in according the applicant only five points for personal suitability?
ANALYSIS
1. Did the visa officer err in assessing the applicant's language ability?
[14] The Federal Court of Appeal in To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (QL) (C.A.) accepted that the appropriate standard of review of a visa officer's decision was the same as that stated in Maple Lodge Farms Limited v. Canada, [1982] 2 S.C.R.2 :
In Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court:
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, were 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.
[15] With the recent decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, it seems accepted now that the standard of review for a decision of a visa officer is reasonableness simpliciter.
[16] The applicant submits that the visa officer erred in assessing his language ability considering the written and reading language test administered to the applicant and considering that he has studied English formally for 10 years while in school and has lived in North America for quite some time already.
[17] I agree with Lemieux J.'s comments in Mehrabani v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 345 (QL) (T.D.), where he stated:
I cannot simply substitute my view on what the applicant wrote for that of the visa officer. The applicant must show the assessment is flawed. Several decision of this Court have recognized the visa officer is in a much better position to assess the quality of the language of an applicant than the Court is (See Ali v. Canada (M.C.I.) IMM-4873-97, July 22nd, 1998; Ashraf v. Canada (M.C.I.) [1998] F.C.J. 1561).
[18] The applicant in the case at bar, did not demonstrate that the assessment was flawed. The visa officer wrote in her CAIPS notes:
Gave him a para. What does highlight mean? "The more expressive things." Understands what form para? "Express more understanding to the people about the Canadian laws." Else? "Booklet shows that they can easily understand Canadian laws and their rights in this book."
Told him I am assessing spoken English as well, not fluent, because he did not understand many of my questions and I frequently had to explain and repeat. Says he will learn. Explained that assessment is based upon present situation, not upon future possibility.
[19] In fact, the visa officer's CAIPS notes show that the visa officer had to repeat and explain her questions often and that the applicant did not understand the questions.
[20] As for the written test, the applicant wrote:
To whom it may concern
Respected Madam,
My name is Surinder Paul and I am a Indian Citizen. I have applied for the permanent resident in Canada. I reached in Canada in Jan, 1997. After reaching in Canada I make my mind to settle in Canada.
[21] I believe that the visa officer is in a much better position than the Court to make the determination as to the applicant's language ability. The evidence before the visa officer supported her assessment of the applicant's language ability and I cannot find that her conclusions were unreasonable. The applicant has not shown that the visa officer's assessment was flawed.
2. Did the visa officer err in according the applicant only five points for personal suitability?
[22] The applicant submits that the visa officer erred in assessing his personal suitability. According to the applicant, the fact that he had lived in Canada for one and a half years, had relatives in Canada willing and able to assist him in reintegrating, had been working successfully in the United States since July, 1998, had already received four offers of employment from Canadian businesses, had done some research into getting a banking job in Canada and even obtained a verbal confirmation from a bank manager that they would be willing to hire him if he were to become a landed immigrant, showed that the applicant was clearly above average in terms of motivation, resourcefulness and adaptability and should therefore have been awarded a higher points score.
[23] The visa officer awarded the applicant five units under the personal suitability factor. The question to be answered is whether the visa officer's assessment was reasonable. Deference is to be shown to the visa officer's conclusions and I am not to substitute my conclusions to the visa officer's conclusions unless I find them unreasonable.
[24] In light of the evidence before the visa officer and having reviewed the visa officer's CAIPS notes, I cannot find that the visa officer's assessment of the applicant's personal suitability is unreasonable. The visa officer asked many questions and in light of the applicant's answers and various documents and evidence that he presented, I am satisfied that it was reasonable for the visa officer to conclude as she did.
[25] Furthermore, the applicant himself states in his affidavit that he believes he was entitled to a minimum of five or six units of assessment for personal suitability. The visa officer's assessment is consistent with the applicant's own view of his entitlement under this factor.
[26] This application for judicial review is dismissed.
[27] Neither counsel suggested questions for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 22, 2001