Date: 20030425
Docket: IMM-2207-02
Citation: 2003 FCT 515
Ottawa, Ontario, this 25th day of April, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
SEN CAO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Visa Officer Martin Aarts at the Canadian Embassy in Beijing, China ("the Embassy") dated March 29, 2002, wherein the applicant's application for permanent residence in Canada in the "Independent" category was denied.
[2] The applicant, Mr. Sen Cao, is a citizen of the People's Republic of China. He submitted his application for permanent residence under the occupation of Computer Programmer per National Occupational Classification ("NOC") No. 2163.0. He was interviewed on March 28, 2002, and at the end of the interview, the visa officer informed him that his application was refused.
[3] The Visa Officer determined that the applicant did not meet the requirements for immigration in Canada because the total units of assessment he obtained is 69. The applicant was awarded the following units of assessment for each of the selection criteria:
Age 10
Occupational factor 10
Education and Training Factor 15
Work Experience 06
Arranged Employment 00
Demographic factor 08
Education 13
English 02
French 00
Suitability 05
Total 69
[4] The applicant argued that the Visa Officer erred in his assessment of the applicant's personal suitability. He claimed that the Visa Officer failed to conduct a full and broad evaluation of the applicant's personal characteristics, as he only asked a few questions to the applicant.
[5] 'Personal Suitability' is defined in item 9 under column 1 of Schedule 1:
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 dependents to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities. [Immigration Regulations, 1978, Schedule 1.]
[6] The Visa Officer awarded the applicant five units of assessment for personal suitability. He considered the applicant's daily efforts to use and to improve his English skills by using English language technology support documents at work, and developing English versions of the software produced by his employer. In addition, the Visa Officer considered the applicant's efforts to find a job in Canada through the Internet, and the applicant's efforts to learn about Canada through reading the newspapers and watching television. He also considered that the applicant had no prior overseas experience and that he has friends in Canada. These are all relevant considerations in assessing an applicant's personal suitability. The applicant bears the burden of proving that he has a right to come to Canada, and the applicant had the opportunity to produce further information and documents at the interview when invited to do so by the Visa Officer.
[7] The applicant also submitted that the Visa Officer erred in determining that he was an "average applicant" and that he should not have been compared to other applicants whom the Visa Officer may have interviewed previously. However, the Court has held that the use by a Visa Officer of an average standard is not a basis for judicial review:
An award of units for personal suitability is a finding of fact and requires that a visa officer evaluate, in part, the sort of intangible factors not readily apparent to a justice on judicial review. It is therefore, only with the greatest caution that this Court will move against such decisions. The use by a visa officer of an average personality award to base that of the applicant cannot serve to move the Court. Nor does it amount to fettering the officer's discretion. Instead, it is evidence of the visa officer attempting to relate the applicant's score to those give [sic] to previous applicants, something that would allow for consistency in his decisions if little else. [Zhang v. Canada (M.C.I.), [2000] F.C.J. No. 130, paragraph 12, per Justice Muldoon (as he then was)].
[8] The jurisprudence is clear that deference should be given to the visa officer's assessment of personal suitability, and this Court should intervene only if the visa officer's decision is clearly unreasonable on the face of the evidence:
The assessment of personal suitability is entirely within a visa officer's scope of expertise and should not be interfered with unless the finding is perverse or capricious, or unless the visa officer committed an error of law. [Ali v.Canada (M.C.I.), [1998] F.C.J. No. 1080, paragraph 6, per Justice Dubé (as he then was)].
[9] For the above reasons, I find that the visa officer's discretionary decision to award the applicant an average score of 5 units out of ten was reasonable. The visa officer questioned the applicant to elicit information concerning his initiative, motivation, resourcefulness and adaptability in order to assess the applicant's ability to successfully establish in Canada. The line of questioning and assessment was entirely within the expertise of the visa officer and thus, this Court ought not to interfere with the visa officer's decision.
[10] No question for certification was proposed by either counsel.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed and no question will be certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2207-02
STYLE OF CAUSE: Sen Cao v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver
DATE OF HEARING: April 15, 2003
REASONS FOR : THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: April 25, 2003
APPEARANCES:
Mr. Dennis Tanack FOR APPLICANT
(Barrister & Solicitor)
Ms. Helen Park FOR RESPONDENT
(Department of Justice - Vancouver)
SOLICITORS OF RECORD:
Mr. Dennis Tanack FOR APPLICANT
(Vancouver)
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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