Federal Court Decisions

     IMM-1563-96

BETWEEN:

     ALEXANDRE IAROCHENKO

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

RICHARD J.:

     The applicant is seeking judicial review of the decision of a visa officer at the Canadian Embassy, Visa Section in Moscow, Russia whereby the applicant's application for permanent residence in Canada was refused.

     The applicant is a citizen of Russia who applied on August 24, 1995, for permanent residence to Canada pursuant to the Independent - Skilled Worker category, specifically Canadian Classifications and Occupations Dictionary (CCOD) 2144-114, Research Engineer, Electrical and Electronic. The applicant has over 25 years experience working as a scientist and academic in the field of radio engineering and communications having been employed by the State Committee for Military Engineering Policy of the Russian Academy of Sciences since 1989. For 10 years prior to that, the applicant was employed by the Central Military Research Institute. There was also evidence that he held nine patents and had published articles.

     On January 18, 1996, the applicant was interviewed by a visa officer, and on January 23, 1996, the applicant was requested to attend a language test.

     On February 9, 1996, he was notified that his application for permanent residence has been refused.

     As stated in the Gill case,¹ the legislative provisions confer a broad discretion on a visa officer in making a determination of this nature (number of units awarded in assessment for personal suitability) and it is entirely within his or her jurisdiction to form an opinion concerning an applicant's personal suitability based on factors such as adaptability, motivation, initiative, resourcefulness and other qualities. If the visa officer's determination is not patently unreasonable, arbitrary or capricious, there is no ground to warrant judicial interference.

     The visa officer set out in his affidavit the explanation for awarding the applicant five units of assessment for personal suitability. The visa officer examined the applicant's work history and determined that the applicant had failed to show resourcefulness in his field, given the particular economic realities and conditions in Russia.

     The visa officer analyzed the applicant's adaptability, motivation, initiative and resourcefulness based on the fact that the applicant's salary was low as compared to that of a secretary and that his salary has not increased.²

The salary of the Applicant was pertinent to my assessment of his personal suitability because it is an indicator of how he has adapted to the changes which have occurred in Russia over the past few years. Those who have adapted well, in the Applicant's field, have had significant increases in their income. Those who have not adapted have, like the Applicant, remained in the same position with a stagnant salary.

     With respect to the applicant's resourcefulness, the visa officer stated:

I noted that, despite the many changes in Russia in the past few years, the Applicant has remained in the same field of work.

I determined that the Applicant failed to show resourcefulness in his field. The Applicant presented himself as a researcher in a branch of the Academy of Sciences, but he did not provide any evidence of having used his position in a resourceful manner.

     The visa officer asked about other sources of employment and stated that the applicant had failed to provide any supporting evidence. There is evidence that the applicant offered further information but was not offered a further opportunity to do so.

     I have reached the conclusion, on the record before me, that the visa officer based his decision on improper or irrelevant considerations and that his finding is patently unreasonable in the circumstances.

     Accordingly, the decision of the visa officer is set aside and the matter is remitted to a different visa officer to be assessed in accordance with law as soon as practicable.

     __________________________

     Judge

Ottawa, Ontario

February 10, 1997

__________________

¹      Gill v. M.C.I. (1996), 35 IMM. L.R. (2d) 21 (F.C.T.D.).

²      See Tam v. Canada (M.C.I.), [1996] F.C.J. No. 1179 (F.C.T.D.).