Date: 20000821
Docket: IMM-2535-99
Halifax, Nova Scotia, this 21st day of August, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
RAJESH MANSUKHLAL MUCHHALA
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
Factual Background
[1] This is an application for judicial review of a visa officer rendered on April 6, 1999, wherein the applicant"s application for an immigrant visa under the independent category was refused.
[2] The applicant applied for an immigrant visa on July 5, 1998. The applicant was single at the time he applied, but subsequently married and included his new wife on the application as an accompanying dependant. The applicant sought to be assessed for a visa in the occupation of Chemical Engineer (NOC 2134.01) or Applied Chemical Technologist (NOC 2211.1) or Technician (NOC 2211.2).
[3] At his interview in London, United Kingdom on March 30, 1999, the applicant was questioned about his education and employment background. The applicant had completed his engineering degree in India, however, the university at which he received his education had not been certified by the Canadian Council of Professional Engineers. As a result of the lack of certification, the applicant would be unable to become a licensed engineer in Canada. The visa officer formed the opinion that he did not meet the employment requirements of his chosen occupation and he was not assessed in this occupation by the visa officer.
[4] The visa officer determined that the applicant should be assessed as a Chemical Engineering Technologist (NOC 2231.1) and assessed the applicant as follows:
| Age 10 |
| Occupational Demand 01 |
| Vocational Preparation/Training 15 |
| Experience 06 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 15 |
| English 09 |
| French 00 |
| Personal Suitability 04 |
| TOTAL 68 |
[5] The visa officer indicated in her letter to the applicant that his "low units of personal suitability are a reflection of your lack of resourcefulness and initiative regarding settlement in Canada".
Issues
| [6] 1. Was the failure to assess the applicant in his chosen occupation of |
Chemical Engineer a fettering of the visa officer"s discretion?
| 2. Was the visa officer"s assessment of the applicant"s personal suitability |
| done in an unreasonable manner? |
Applicant"s Arguments
| [7] The applicant argues that he clearly indicated a desire to be assessed in the |
occupation of Chemical Engineer, and the failure of the visa officer to so assess him constitutes a fettering of discretion and a failure to exercise jurisdiction. The applicant stresses the fact that the CCPE is a non-governmental organization with no jurisdiction to assess potential immigrants. Moreover, the applicant notes that the NOC states that in some provinces, graduates of non-accredited institutions may become licensed engineers upon a lengthy apprenticeship period and by sitting for examinations.
| [8] The applicant also argues that the visa officer assessed personal suitability in an |
unduly narrow fashion and thereby made an unreasonable decision. The applicant notes decisions of this Court which held that the visa officer must look at all the factors in a broad way, and that this is even more important when the applicant is only a few points short of the total. The applicant argues that the personal suitability finding was focussed on issues dealing with his intended occupation and not all the broad factors which should be considered.
Respondent"s Arguments
| [9] The respondent stresses that to succeed, the applicant here must show an error of |
law or a breach of the duty of fairness. The respondent argues that the visa officer provided a full and fair assessment of the application and the applicant has not shown that the visa officer made any error or breached any duty so that the decision may be interfered with.
| [10] The respondent points out that the applicant has the burden of showing that he is |
admissible to Canada; therefore, he had to satisfy the visa officer that he was qualified as a Chemical Engineer. This the applicant did not do.
| [11] The respondent argues that the visa officer did not defer to the CCPE, but rather |
recognized that the applicant did not meet the employment requirements in his intended occupation as a result of the CCPE"s non-recognition. Given the NOC occupational requirements, the applicant was not eligible for employment in his intended occupations.
| [12] The respondent argues that since it was obvious that the applicant could not obtain |
sufficient units of assessment in the occupation of Chemical Engineer, it was unnecessary for the visa officer to conduct a formal assessment for this occupation. It was sufficient for her to assess the applicant in alternate occupations for which he was qualified.
| [13] As regards personal suitability, the respondent submits that the determination is a |
discretionary decision of the visa officer and the assessment in the case at bar should not be interfered with. The visa officer was fully cognizant of the scope of factors which were to be considered in an assessment of personal suitability. The low level of resourcefulness which the visa officer observed was well within her competence and was not unreasonable nor unprincipled.
Law
| [14] Subsection 8(1) of the Immigration Act, 1976-77, c. 52 (the "Act") states: |
| 8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
[15] From Schedule 1 Column 1 Factor 9 of the Immigration Regulations, 1978, the factors to be considered in an assessment of personal suitability are:
| Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities. |
Des points d'appréciation sont attribués au requérant au cours d'une entrevue qui permettra de déterminer si lui et les personnes à sa charge sont en mesure de réussir leur installation au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et autres qualités semblables. |
Analysis and Decision
| [16] Issue 1 |
Was the failure to assess the applicant in his chosen occupation of Chemical Engineer a fettering of the visa officer"s discretion?
I am satisfied that once the visa officer came to the conclusion that the applicant could not qualify as a Chemical Engineer, there is no requirement that she continue with a meaningless exercise to merely conclude the process. Simply put, if the applicant does not meet one of the employment requirements for the intended occupation, then there is no requirement that the visa officer complete the remainder of the assessment as the applicant could not succeed in any event.
| [17] The applicant in the present case stated that he was moving to Ontario. By |
subsection 8(1) of the Act, it is up to the applicant to satisfy the visa officer that he meets the requirement for immigration to Canada. If in fact in Ontario, graduates of non-accredited educational programs can qualify as engineers by completing terms of supervised employment and passing examinations, then it is up to the applicant to establish these matters. There is no evidence that this was done before the visa officer. Therefore, I can only assume that the visa officer applied the requirements that she believed applied in Ontario where the applicant was seeking to be employed.
| [18] I do not accept the argument that the visa officer fettered her discretion by |
considering that eligibility for registration as a professional engineer by a provincial association is an employment requirement which must be satisfied in order to practice as an engineer.
| [19] Therefore, with respect to issue 1, I find that the visa officer"s decision was a |
reasonable decision and my standard of review is reasonableness simpliciter as it will be for issue 2.
| [20] Issue 2 |
Was the visa officer"s assessment of the applicant"s personal suitability done in an unreasonable manner?
The visa officer, when assessing personal suitability of the applicant, looked at facts about the applicant such as the following that are contained in the CAIPS notes:
| Never been to Canada, but has a lot of information about the economical situation. |
| When asked to elaborate, come up with some broad facts: Canada is a country of immigration, democratic monarchy, lowest crime etc. |
| Where did they want to settle in CDA? No destination indicated on IMM8. Toronto? What does he know about Trnto? It is multi-racial, no discrimination. |
| What chemical industries are there in Toronto? Paper and pulp industry. Has read CDN employment weekly. Could not come up with names of some of the big industries. Did not know where any of them are located. |
| For the last two months, has listed his C.V. with an employment search company. Only had one negative reply so far. |
| Comments: |
| Application refused: |
| No more than an average settlement prospect. Knowledge of Canada was general and vague. Demonstrated below average resourcefulness and initiative. |
| [21] Jerome, A.C.J. in Gill v. Canada (Minister of Citizenship and Immigration) |
(1996) 34 Imm. L.R. (2d) 127 (F.C.T.D.) made the following remarks concerning a visa officer"s assessment of personal suitability:
| I am satisfied the visa officer did not err in refusing Mr. Gill"s application for permanent residence. The legislative provisions confer a broad discretion on a visa officer in making a determination of this nature and it is entirely within his jurisdiction to form an opinion concerning an applicant"s personal suitability based on factors such as adaptability, motivation, initiative, resourcefulness and other qualities. Provided that opinion is reasonable and is neither arbitrary or capricious, there are no grounds to warrant judicial interference. |
| [22] I am of the view that the visa officer considered relevant factors and formed a |
reasonable opinion with respect to the personal suitability of the applicant. The applicant stated in his affidavit that he had submitted a list of potential employers, but he gave no evidence that he had positive feedback from any employer on the list and in any event, it was only a list of potential employers. This additional evidence does not make the visa officer"s decision unreasonable.
| [23] The application will therefore be dismissed. |
ORDER
| [24] The application is dismissed. |
"John A. O"Keefe"
J.F.C.C.
Halifax, Nova Scotia
August 21, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2535-99 |
| STYLE OF CAUSE: RAJESH MANSUKHLAL MUCHHALA |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: WEDNESDAY, AUGUST 9, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: O"KEEFE J. |
DATED: MONDAY, AUGUST 21, 2000
| APPEARANCES BY: Mr. Max Chaudhary |
| For the Applicant |
Mr. Kevin Lunney
For the Respondent
| SOLICITORS OF RECORD: Max Chaudhary Law Office |
Barrister & Solicitor
405-255 Duncan Mill Rd.
North York, Ontario
M3B 3H9
| For the Applicants |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000821
Docket: IMM-2535-99
BETWEEN:
| RAJESH MANSUKHLAL MUCHHALA |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
AND ORDER