Date: 20000630
Docket: IMM-4770-99
BETWEEN:
ABDUL MAJEED
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to the judicial review of a decision of a visa officer, dated August 16, 1999, refusing to issue the applicant a permanent resident visa, despite the fact that he had been awarded 71 units of assessment (70 is required for the issuance of a visa). The visa officer exercised his discretion under paragraph 11(3)(b) of the Immigration Regulations, 1978 and refused a visa because he determined that the units of assessments that had been awarded did not accurately reflect the applicant's ability to become successfully established in Canada.
[2] Counsel for the applicant cites the recent decision in Sadeghi v. The Minister of Citizenship and Immigration (1998), 48 Imm.L.R. (2d) 136 (F.C.A.). That case established that when a visa officer makes a discretionary decision depriving a person of his legitimate expectation that he will be granted a visa when he has met the 70 point requirement, greater procedural protection applies than when a visa officer is exercising his discretion at large:
| [15] Hence, in exercising the power conferred by paragraph 11(3)(b) the visa officer made a discretionary decision depriving the appellant of his legitimate expectation that, having satisfied the specific statutory selection criteria, most of which are geared towards assessing an applicant's prospects for becoming economically established in Canada, he would be issued with a visa, unless he was found inadmissible under subsection 19(1) of the Immigration Act. Decisions removing a person's legitimate expectation of receiving a benefit typically attract greater procedural protection than those where the discretion is at large. |
[3] In the Sadeghi case, the visa officer made her decision under paragraph 11(3)(b), citing as reasons therefor the appellant's "limited knowledge of employment conditions in Canada", "lack of professional contacts in Canada" and "lack of preparedness to go to Canada", when she had not expressly raised these matters with him so that he could respond. This was held to be a breach of the rules of fairness.
[4] Counsel argues that, similarly, in this case the visa officer based his decision, in part, on the fact that the applicant had no North American experience in his field (director of personnel and administrations) and had no friends or relatives of any degree in Canada.
[5] I cannot conclude that the Sadeghi decision assists this applicant. The immigration information forms that the applicant filled out implicitly, in the first case, and expressly, in the second gives, the applicant an opportunity to provide the relevant information. The applicant is asked to describe his work experience, in considerable detail, first in writing and then at the in-person interview. If there was any North American experience, it would have been disclosed in that process. In the application for residence form, applicants are asked to list any person or employer that will assist them in Canada. None were listed by the applicant and an immigration official noted, on that form, "no family in Canada/family friend in U.S.A."
[6] Thus, no breach of procedural fairness arose as a result of the visa officer's reference to the applicant's lack of North American experience, and the lack of family or friends in Canada, when he decided to exercise discretion pursuant to Regulation 11(3)(b).
[7] Counsel for the applicant argues that the visa officer made a significant error when he referred to the Low Income Cut Off ("LICO") table when assessing the applicant's ability to become successfully established in Canada. Counsel argues that that table is used to assess whether a person who is established in Canada is likely to be able to support a sponsored immigrant. He argues that the visa officer, when assessing the financial position of a person who is seeking landing as an independent immigrant, is required to use the "settlement funds" portion of the Immigration Manual.
[8] A careful reading of the visa officer's decision and the respective tables leads me to conclude that there was no error. In the first place, the table with respect to settlement funds provides an estimate of the amount needed to live in Canada for six months ($16,000 for a family of four), without having to seek social assistance. The LICO is an estimate of the funds needed to live above the poverty line for one year ($32,759 for a family of four in the area in which the applicant intended to settle).
[9] The assessment the visa officer was making was not restricted to the first six months of the applicant's presence in Canada. She was assessing whether or not this applicant was likely to be able to establish himself and his family in Canada in the long term; this was not limited to the amount needed as settlement funds for the first six months.
[10] The applicant had approximately $25,000. This would have to cover the transportation of his wife and children from Chicago (not expensive) and himself from Pakistan. He said he planned to sell the furniture and other goods they owned, in Pakistan, and purchase new items on arrival in Canada.
[11] The visa officer took into account: the amount of funds that the applicant had available; the expenditure he could expect to incur in renting furnished premises (or to furnish unfurnished premises) for his family in Canada; the absence of family or friends in Canada to assist; and most significantly, that the job offer that he had (from Comp-U-Learn, an organization that said the applicant's computer skills were attractive to it) did not appear to be a "durable" one since the only computer skills the applicant had were as a computer user, e.g., he knew how to connect to the internet. The visa officer concluded that in the light of what appeared to be an ephemeral job offer, and his lack of North American experience in his field, that he would have difficulty finding alternative employment to that offered by Comp-U-Learn. Thus, the visa officer concluded that the units of assessment that were awarded to the applicant did not accurately affect his ability to become successfully established in Canada, and the decision was made not to issue him a visa.
[12] The factors that were considered by the visa officer are relevant to the decision she made. I note that in Yazdanian v. Canada (Minister of Citizenship and Immigration) (1999), 170 F.T.R. 129, Madame Justice Tremblay-Lamer held that an applicant's lack of western experience was properly a factor, providing undue emphasis was not placed on that factor:
| Although I recognize that experience in the "West" may be a factor to take into account in assessing an application from a non-Western background, considering that the working and business conditions are different, I would point out that too much emphasis on Western business experience would deny applications from successful business people who have excelled in business in other cultures. |
[13] This Court has held that a visa officer may properly base his or her decision to exercise negative discretion on any number of factors, including those found in Schedule I, providing the factors are relevant to the applicant's chance of becoming successfully established in Canada. (See Mao v. Canada (Minister of Citizenship and Immigration) (IMM-844-96, January 16, 1997 (F.C.T.D.).)
[14] In Mao, the visa officer's exercise of negative discretion, where the applicant had acquired the required number of units, was based on her belief that the applicant could not successfully establish and be employed in his intended occupation in Canada. Her belief arose from the applicant's difficulty with English, his inability to speak French, and the value of his personal assets. Pinard J. noted that the visa officer, in giving her reasons, stated (in part):
| ... total personal assets are US$11,000 (C$14,729) which according to IS 4 would normallybe [sic] sufficient for a person to live on for 6 months in Canada. This does not take into account the cost of airfare/physical move. However, I believe PI would have an extremely difficult time finding any engineering or computer related employment given his major communications difficulty in English and non-existant [sic] French. Given the professional area of employment, it would be expected that a significant part if not all of his work would be conducted in either of those two languages. I believe that he would require significantly more time to find employment and would quickly run out of the minimal funds that he has such that he would likely require social assistance. I therefore request the use of negative discretion as per R11(3). |
Pinard J. stated:
| ... In my view, the reasons cited by the visa officer in support of her negative decision, namely the applicant's deficient English language skills and his limited funds, were relevant considerations which accurately reflect his chances of becoming successfully established economically in Canada (see Chen v. Canada (M.C.I.), [1991] 3 F.C. 350 (T.D.); [1994] 1 F.C. 639 (C.A.); and [1995] 1 S.C.R. 725). Provided that the reasons invoked by the visa officer for exercising negative discretion are relevant to the applicant's chance of becoming successfully established economically in Canada, and not to some other measure of success, he or she may properly base his or her decision on any number of factors, including those found in Schedule I of the Regulations (see Covrig v. Canada (M.C.I.), [1995] 104 F.T.R. 41 (F.C.T.D.); and Savin v. Canada (M.C.I.), [1995] 102 F.T.R. 67 (F.C.T.D.) at p. 71). |
[15] The visa officer considered a number of factors, none of which can be said to be irrelevant or unreasonable, in deciding that negative discretion should be exercised. The visa officer considered sufficiency and durability of the job offer, the applicant's net worth, his expectations concerning the cost of settling his family, the availability of assistance and support from friends and relatives in Canada, the applicant's prospects for finding alternative employment, and the fact that the applicant's spouse did not intend to work outside the home. Counsel submits that the visa officer fully and fairly considered the applicant's application and that the inference made was reasonable.
[16] Counsel for the applicant argues that, in any event, a visa officer is not entitled to exercise negative discretion pursuant to Regulation 11(3)(b) unless the applicant had been awarded zero points for personal suitability. This argument is based on the decision in Chen v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 350 (T.D.). In that decision Mr. Justice Strayer stated:
| ... In this case Mr. Spunt reviewed the assessment of "personal suitability" made by Ms. Trillo as 7 units out of 10 and he confirmed it. I fail to see how he can then offer as a reasons for a negative exercise of discretion that the applicant does not have a sufficient degree of personal suitability. It is conceivable that the discretionary power under subsection 11(3) could properly be used where an immigrant was so lacking in one of the factors listed in Column I that a 0 rating would not adequately reflect the negative impact of that deficiency on his ability to become successfully established. But it appears to me that a precondition for exercising the discretion on that ground would be to rate that factor at 0 in the assessment. |
[17] This is not the same as saying that a pre-condition of the exercise of negative discretion is an award of zero units for personal suitability. The Court was noting that the visa officer could not base the decision on the applicant's lack of personal suitability when it had given the applicant a score of 7 for personal suitability. It would be like saying the applicant would not succeed because he would have a difficult time communicating with employers when he had received full points for language assessment. To do so, is contradictory.
[18] In Savin v. Canada (Minister of Citizenship and Immigration) (1995), 35 Imm.L.R. (2d) 122 (F.C.T.D.). Mr. Justice Cullen rejected the argument an applicant must have zero points for personal suitability before Regulation 11(3)(b) negative discretion can be applied (in the Savin case the applicant had been awarded four points for personal suitability). Mr. Justice Cullen explained "the visa officer must be given some discretion to determine that, for a combination of reasons, an applicant would not become economically self-sufficient in Canada. The visa officer's decision ... is not in error."
[19] Personal suitability is described as requiring an assessment of the potential immigrants "adaptability, motivation, initiative and resourcefulness" to ascertain the applicant's chances of becoming successfully established in Canada. This assessment is not identical to that required for 11(3)(b) purposes, although there is overlap between the two.
[20] Therefore, it was not an error for the visa officer to have exercised his negative 11(3)(b) discretion, based on the factors he considered, when the applicant had been awarded 5 units for personal suitability.
[21] For the reasons given, the application will be dismissed.
Judge
OTTAWA, ONTARIO
June 30, 2000