Date: 19980417
Docket: IMM-2399-97
Between :
MUHAMMAD AJMAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of Visa Officer G. Sutherland made on May 6, 1997 in which he refused the applicant's application for permanent residence because he did not meet the requirements for independent applicants pursuant to subsection 8(1) of the Immigration Regulations, 1978 (the "Regulations").
[2] The applicant is a citizen of Pakistan who currently lives in Auckland, New Zealand with a student visa obtained January 28, 1997. He submitted his application for permanent residence in the independent category at the Sydney Consulate-General on November 25, 1996, and was scheduled for an interview in Auckland on April 14, 1997.
[3] The visa officer assessed the applicant on the basis of the criteria outlined below pursuant to subsection 8(1) of the Regulations, based on the requirements for the occupation of accountant (CCDO 1171-114). The applicant was assessed as follows:
| Factor
|
Units
|
| Age
|
10
|
| Occupation
|
03
|
| SVP
|
18
|
| Experience
|
06
|
| ARE
|
00
|
| Demographic
|
08
|
| Education
|
13
|
| English
|
08
|
| French
|
00
|
| Bonus
|
00
|
| Suitability
|
01
|
| Total
|
67
|
[4] Given that the applicant had obtained insufficient units of assessment to qualify for immigration to Canada, the visa officer informed him that he came within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act (the "Act"). The visa officer also noted that he had considered possible humanitarian and compassionate factors, but that he had determined that there were insufficient grounds to warrant special consideration.
[5] The applicant argues that he did not receive the opportunity to disabuse the visa officer of his concerns with respect to his personal suitability for immigration to Canada. The visa officer's main concerns with respect to the applicant's personal suitability related to his withdrawal from an MBA program, and to his poor adaptability to life in New Zealand. I am of the opinion that the visa officer touched on these two questions in the interview, albeit not extensively. He notes at paragraph 4 of his Affidavit that he questioned the applicant on his withdrawal from the MBA program:
| 4. I conducted an interview with the Applicant on 14 April 1997. He informed me that he came to New Zealand on 28 January 1997 on a student visa. He enrolled in an MBA program at university but later withdrew from the program because "he changed his mind". He advised he had four brothers in New Zealand, one of which was supporting him financially. He had no relatives in Canada. |
|
[6] The applicant concedes in his own Affidavit that his reasons for leaving New Zealand were also discussed. Paragraphs 12 to 14 of his Affidavit read as follows:
| 12. After examining these documents, the officer then asked me why I did not stay in New Zealand. I answered that New Zealand was a very small country and did not have either the personal or professional opportunities that Canada offered. |
|
| 13. The officer pursued this issue by asking me if my four brothers who lived in New Zealand considered it to be without opportunities. |
|
| 14. I responded to him that, although my brothers were very well established and that New Zealand was a pleasant place to live, I believed that there would be much greater prospects of advancement in Canada for me in my field of accounting. |
|
[7] While the visa officer could have questioned the applicant more extensively with regard to his concerns, I am of the opinion that there was some opportunity presented to the applicant to convince the visa officer on these issues. The applicant's argument in this regard is, therefore, dismissed.
[8] The applicant also suggests that the visa officer double counted his linguistic abilities, education, and the fact that he has no relatives in Canada when he considered these factors again in assessing his personal suitability. The visa officer considered a number of factors in awarding only one unit of assessment for Personal Suitability. He explains as follows at paragraph 9 of his Affidavit:
| 9. For Personal Suitability, it was noted by me that the Applicant had poor potential. He had withdrawn from his studies and was being supported by a brother. He did not appear to be settling in well in New Zealand and would probably fare no better in Canada where he would not have the support of relatives. He was very slow in responding to questions and appeared to lack motivation and initiative. |
|
[9] Although the visa officer did note that the applicant had some difficulty speaking and comprehending English, there is no evidence to indicate that he considered this in evaluating the applicant's personal suitability. The written note with respect to the applicant's linguistic ability was simply made following the comments related to the applicant's motivation and initiative, all of which were made during the interview:
| Withdrew from studies in NZ. Does not appear to be settling in to NZ well + would probably have difficulty in Cda where no relatives. |
|
| Very slow responding to questions |
|
| Lacks motivation and initiative |
|
| 14 Took English as a second language. Has some difficulty speaking + comprehending. |
|
Hence there is no indication in the visa officer's interview notes or Affidavit that he improperly considered the applicant's linguistic skills as is suggested by the applicant.
[10] I now turn to the question of double counting of the applicant's education and lack of relatives in Canada. Notwithstanding the general principal that a visa officer cannot engage in double counting when assessing an applicant on the basis of the criteria outlined pursuant to subsection 8(1) of the Regulations, it has been established by the case-law that it is acceptable to consider one of the other enumerated factors in assessing personal suitability, so long as it is appraised from a different perspective (see, for example, Stefan v. Canada (M.C.I.) (1995), 35 Imm.L.R. (2d) 21 (F.C.T.D.); Parmar v. Canada (M.C.I.) (November 12, 1997), IMM-3177-96 (F.C.T.D.); and Vasilev v. Canada (M.C.I.) (1996), 110 F.T.R. 62). In the case at bar, I cannot accept the applicant's argument that the visa officer engaged in double counting with respect to his education and lack of relatives in Canada. With respect to the applicant's course of study, I prefer to follow Justice MacKay's reasoning in Parmar, supra, and find that the visa officer did not commit a reviewable error in concluding that it was relevant to the applicant's motivation and initiative that he had abandoned a course of study because he had "changed his mind".
[11] I also cannot accept that the visa officer committed a reviewable error when he focused on the fact that the applicant was not adjusting well to life in New Zealand, and would probably have even more difficulty in Canada where he has no relatives. I accept this as a valid consideration, particularly due to the fact that the applicant was being supported by his brother at the time of the interview. The visa officer clearly considered this factor from a different perspective, as he was directing his attention to the applicant's inability to adapt without assistance from his family, and not strictly to the fact that the applicant has no relatives in Canada. His inability to manage financially on his own and his need to rely on his brother is an acceptable factor in assessing his personal suitability to "get on economically" in Canada.
[12] More generally, with respect to questions of fact, the applicant has failed to satisfy me that the visa officer based his decision on an erroneous finding of fact, that it made in a perverse or capricious manner or without regard for the material before him in allotting the applicant only one point for Personal Suitability.
[13] Consequently, the application for judicial review is dismissed. The case raises no serious question of general importance.
JUDGE
OTTAWA, ONTARIO
April 17, 1998
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