Date: 20010829
Docket: IMM-3635-00
Neutral citation: 2001 FCT 960
BETWEEN:
MINESHKUMAR ARVINDBHAI PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.A.
[1] This is a judicial review of a decision of a Visa Officer denying the applicant's application for permanent residence because the applicant was awarded only 66 units of assessment, 4 less than the minimum 70 required under subsection 9(1) of the Immigration Regulations, 1978, SOR/780-172 as amended. The Visa Officer awarded the applicant 5 units under the personal suitability category.
[2] The applicant says the Visa Officer's personal suitability assessment took into account irrelevant considerations, namely, the applicant's motivation to immigrate to Canada and the applicant's lack of knowledge about "the Canadian way of living".
[3] The Visa Officer was cross-examined on her affidavit. The Visa Officer conceded that the applicant's motive to immigrate to Canada to obtain legal status in North America did not negatively affect the applicant's chances for establishing himself successfully in Canada. To the Visa Officer, "the Canadian way of living" meant "paying taxes". The Visa Officer stated that "if you live in a country, you should contribute to that country. And one of the ways to contribute is by paying taxes, and, you know, be a law abiding person". When asked whether there was any question of criminal inadmissibility in this case, the Visa Officer admitted there was not.
[4] Schedule I of the Immigration Regulations provides, in respect of personal suitability
The 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.
In Chen v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 350 (T.D.), reversed [1994] 1 F.C. 639 (C.A.), affirmed [1995] 1 S.C.R. 725, Strayer J. in the Trial Division observed, with respect to the personal suitability assessment, at page 361:
These enumerated criteria of personal suitability, while not wholly irrelevant to social success, seem primarily related to the ability to support oneself. The term "and other similar qualities" should, I think, be read ejusdem generis with the enumerated criteria which precede it.
[5] It seems apparent that the applicant's motive to immigrate to Canada does not relate to his ability to support himself.
[6] In B'Ghiel v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 103, Hugessen J. found that failure to pay taxes is only relevant to the personal suitability of an individual if it relates to his being able to support himself only by failing to pay taxes. There is nothing in the record before me relating the non-payment of taxes to the applicant's ability to support himself.
[7] I would therefore conclude that the Visa Officer did take into account irrelevant considerations in her personal suitability assessment of the applicant.
[8] Nonetheless, I do not find that the error would have had any material effect on the result.
[9] There was considerable negative evidence before the Visa Officer regarding the applicant's personal suitability. Although the applicant had graduated as a civil engineer in India, he did not have a licence to practise in India or in the United States where he had most recently been working. The applicant's evidence of proof of funds were bank statements in his wife's name. However, his wife was not going to accompany him to Canada. The Visa Officer found that the applicant did not prepare himself for his move to Canada, that he did not take steps to do any research or attempt to upgrade his skills. She found that he had no idea of the labour market in Canada, that he had very little knowledge of Canada, and that he had not shown any understanding of what would be involved in finding employment in Canada.
[10] Notwithstanding her unfavourable comments regarding the applicant's personal suitability, the Visa Officer awarded the applicant 5 out of 10 units in this category. The applicant's immigration consultant, in a letter filed at the time the application for permanent residence was filed, expressed the view that the applicant should receive 7 units for personal suitability. Counsel for the applicant in this Court says that the personal suitability assessment should be 8, resulting in an additional 3 units. Even accepting that the personal suitability assessment should result in an additional 3 units, the applicant would have received 69 units, less than the minimum of 70 required under subsection 9(1) of the Immigration Regulations.
[11] In Barua v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 65, at paragraph 22, Evans J. (as he then was) found that, had the Visa Officer in that case not made the personal suitability error he did, it was inconceivable that he would have awarded 2 more units of assessment for personal suitability which the applicant needed to become entitled, prima facie, to a visa. In this case, the Visa Officer had a generally unfavourable impression of the applicant's personal suitability and the applicant's immigration consultant and counsel only recommended 7 and 8 units respectively for his personal suitability. For these reasons, I find it practically inconceivable that, had the Visa Officer not erred in taking account of irrelevant considerations, she would have awarded the applicant 9 units for personal suitability, the number necessary for the applicant to reach the minimum of 70 units.
[12] Nonetheless, the applicant says that in a close case such as this, had the Visa Officer not erred and had the applicant been awarded 68 or 69 units, the Visa Officer might have exercised positive discretion under subsection 11(3) to issue a visa notwithstanding that the applicant did not receive 70 units. However, there is nothing in the record to indicate that the applicant asked that the Visa Officer exercise such positive discretion and there is no obligation on her to do so. See Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316, at paragraphs 5 and 6. Nor is there anything in the record that indicates there was any basis for the exercise of the extraordinary discretionary power provided for under subsection 11(3). See Chen v. Canada, supra, at page 363.
[13] The judicial review will be dismissed.
"Marshall Rothstein"
Judge
Ottawa, Ontario
August 29, 2001