Date: 20040226
Docket: IMM-1384-02
Citation: 2004 FC 287
Ottawa, Ontario, this 26th day of February, 2004
Present: The Honourable Justice James Russell
BETWEEN:
RAJINDER SINGH CHOONG
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 Maria Colucci ("Visa Officer"), dated June 8, 2001 ("Decision"), dismissing the application of Rajinder Singh Choong ("Applicant") for permanent residence in Canada ("Application").
BACKGROUND
[2] The Applicant was sponsored by his wife's brother under the Family Business Job Offer category. The job offer was approved by a delegate of the Minister in Toronto and the file was transferred to the New Delhi visa office for further processing. The Applicant then submitted a completed application for permanent residence to the New Delhi visa office. Subsequently, he was called for an interview with the Visa Officer that was used, in part, as the basis for the Decision from which this judicial review arises.
DECISION UNDER REVIEW
[3] At the interview, the Visa Officer found that the Applicant did not display an ability to read and write the English language that would warrant an assessment of "fluent." When he was given an opportunity to display both skills it was the Visa Officer's finding that he deserved a "well" assessment.
[4] The Visa Officer awarded 4 units of assessment for personal suitability based on the information before her. In her opinion, the Applicant displayed less than the average amount of motivation, initiative, adaptability and resourcefulness. The Applicant stated that he had not done any preparation for his intended move to Canada, in part because he could not find the time.
[5] The Applicant was awarded 10 units of assessment for the confirmed "Family Business Job Offer" under the Arranged Employment factor.
[6] At the interview, the Visa Officer asked the Applicant his intended occupation and he stated it was Cashier (NOC 6611.0). The Visa Officer reviewed the documentation and considered the answers provided by the Applicant and was convinced that the Applicant had done a sufficient number of the main duties associated with the intended occupation. The Applicant did not request assessment under any other occupation.
[7] On June 8, 2001, the Visa Officer prepared the refusal letter, which was subsequently sent to the Applicant.
RELEVANT LEGISLATION
[8] Section 11(3) of the Immigration Regulations, 1978 indicates as follows:
| 11(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
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11(3) L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
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ISSUES
[9] The Applicant raises the following issues:
... [T]he Visa Officer's Decision that the Applicant's application for permanent residence was refused is invalid on its face because the Visa Officer failed to give the Applicant proper points in the area of occupation, education/ training factor, experience and personal suitability and erroneously concluded that the Applicant did not speak, read, or write English fluently, which effectively denied the Applicant his rights to a fair evaluation in accordance with the Immigration Act, the Immigration Regulations and the principles of natural justices (sic);
... [T]he Decision that the Applicant's application for permanent residence was refused is invalid on its face because the visa officer failed to consider that the Applicant has a validated job offer under the Family Business Program and has a brother-in-law (wife's brother), who is a well-established businessman in Canada;
... [T]he Decision that the Applicant's application for permanent residence is refused failed to properly consider all of the evidence in a fair and judicious manner and breached the duty of fairness to the applicant.
Standard of Review
[10] Irrespective of the standard of review applicable in this case, my conclusions are the same.
Analysis
Language Skills
[11] The Applicant submits that the Visa Officer erred in not granting him sufficient points for his English language skills, even though he is an educated person and is fluent in reading, writing and speaking English. The Visa Officer only awarded the Applicant six out of a possible nine points. The Applicant says the Visa Officer wrongfully refused his application for permanent residence and concluded that he had an Indian accent and neglected to consider that he had a very good command of English (Maharaj v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 803 (T.D.)).
[12] There is no evidence whatsoever that the Applicant received fewer points because he had an Indian accent. In the application form submitted by the Applicant he rated his own ability to speak English as "well," rather than fluent. The one piece of writing relied upon to demonstrate his working skills contains sufficient grammatical and idiomatic mistakes to render an assessment of "well" in the writing category as entirely reasonable. As regards reading skills, the only evidence before me is the Visa Officer's explanation in her affidavit:
I was not satisfied that he was fully fluent in reading and writing the English language. When he was given the opportunity to display both skills at the interview he did not demonstrate the level of proficiency in the language that would warrant an assessment of "fluent". Rather, in my assessment skills in reading and writing reflected a "well" assessment.
[13] In Mehrabani v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 345 (T.D.) Lemieux J. had the following to say on this issue at para. 16:
...
I cannot simply substitute my views on what the applicant wrote for that of the visa officer. The applicant must show the assessment is flawed. Several decisions of this Court have recognized the visa officer is in a much better position to assess the quality of the language of an applicant than the Court is (See, Ali v. Canada (M.C.I.), [1998] F.C.J. No. 1080, IMM-4873-97, July 22nd, 1998; Ashraf v. Canada (M.C.I.) [1998] F.C.J. 1561).
...
[14] I am in exactly the same position. There is nothing before me to suggest that the Visa Officer did not assess the Applicant's language skills correctly.
Personal Suitability
[15] The Applicant also says that the Visa Officer erred in only granting him four points instead of ten points for personal suitability. He says the Visa Officer used a boilerplate decision to assess the Applicant's adaptability, motivation, initiative and resourcefulness. The Applicant submits that the Visa Officer failed to consider that he has an approved job offer under the Family Business Class, has close relatives who are willing to help him, has a place to live in Canada, and has a wife with two university degrees. He can also lay claim to other economic advantages. (Iarochenko v. Canada (Minister of Employment and Immigration), [1997] F.C.J. No. 150 (T.D.)) The Applicant submits the evidence was clear that he would have no problem at all integrating into Canadian life.
[16] In her affidavit, the Visa Officer explains how she dealt with this issue:
...
12. The Applicant was awarded four (4) units of assessment for Personal Suitability. I determined that the Applicant had limited knowledge of Canada. I also determined that the Applicant lacked motivation and initiative. For example, when he was asked why he wanted to go to Canada and what he knew about Canada, he simply stated, "My brother-in-law is living there. He tells me of Canada. Canada is a very good country ... Canada is a very large country with many provinces." When he was asked what he had done to prepare himself and his family for Canada, the Applicant stated , "I have not done any preparation. I am doing the job now here and when I go to Canada I will do the job there. I could not find time." The Applicant further advised me that he will live with his brother-in-law. It was my opinion that the Applicant was reliant on his well-established family in Canada to assist him in settling in Canada. It was also noted that the Applicant had not upgraded his skills, or taken any computer courses to prepare himself for work in Canada. In my opinion this was not an individual who had exhibited even an average amount of adaptability, motivation, initiative, resourcefulness or other similar qualities. He had done very little to familiarise himself with Canada and the Canadian labour market. Consequently, I awarded him only four (4) of units for the "Personal Suitability factor".
13. Contrary to the Applicant's statement in paragraph six (6) of his affidavit, the fact that he had a valid Family Business Job Offer from his brother-in-law in Canada was taken into consideration. Consequently, the Applicant was awarded 10 units of assessment for the "Arranged Employment factor".
...
[17] This accords with the Tribunal Record on this issue. Numerous decision of this Court have pointed out that personal suitability, and the points awarded for it, are matters of discretion for the Visa Officer. In Kompanets v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 726 MacKay J. made the following helpful comments on this matter:
11. The factor of personal suitability and the points awarded for it are a matter within the discretion on the part of the visa officer. There was evidence before the visa officer regarding the visits of the applicant and her husband to Canada. There was also evidence of the resources available to them. These were referred to in the CAIPS notes made by the visa officer. There is nothing in the record or in the argument raised on this application to lead to a conclusion that there was no reasonable basis for the visa officer to assess the applicant as he did. Reasonable people may disagree on the points awarded, but significant deference must be accorded to the visa officer's discretionary finding of fact. No error of law or of jurisdiction has been shown and the finding on personal suitability should not be interfered with.
[18] Following MacKay J., I cannot conclude on the facts before me that any reviewable error was made on this issue.
Consideration As Manager
[19] The Applicant argues that the Visa Officer erred in not assessing the Applicant fairly according to the Immigration Regulations under the occupation factor, occupation/training factor and experience. He says the Visa Officer confined herself to the category of "Cashier" and failed to assess him under all other possible occupations (Feng v. Canada (Minister of Employment and Immigration), [2001] F.C.J. No. 1054 (T.D.)).
[20] My review of the record reveals that there was no request by the Applicant to be assessed in the category of manager and nothing "inherent" in the situation that should have prompted the Visa Officer to consider him as a manager. The Applicant described himself as a "Cashier/Clerk." See Asghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091 at paras. 9 and 10.
[21] No reviewable error occurred in this regard.
Positive Discretion
[22] The Applicant submits that the Visa Officer should have used her positive discretion under ss. 11(3) of the Immigration Regulations (Maharaj, supra).
[23] The Visa Officer explains this issue as follows in her affidavit:
I concluded that the total number of points accurately reflected the Applicant's ability to successfully establish in Canada. I therefore did not exercise positive discretion as per section 11(3) of the Immigration Act. Although the Applicant was advised of the negative decision on his case at the end of his interview, he did not have anything to add and did not request positive discretion.
[24] As Blais J. pointed out in Wang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 248 at para. 21 the Visa Officer's discretion "is a broad discretion left to the appreciation of the Visa Officer."
[25] There is nothing in the record and the facts before me to suggest that the discretion was not exercised appropriately in this case.
Other Issues
[26] The above are the real issues raised by the Applicant. Other minor points of concern were referred to but, in my opinion, they are either not material or they are subsumed in the discussion of the principal issues.
ORDER
THIS COURT ORDERS that
1. This Application for judicial review is dismissed.
2. There are no questions for certification.
"James Russell"
JFC
___________________________________
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-1384-02
STYLE OF CAUSE: RAJINDER SINGH CHOONG
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 5, 2004
REASONS FOR ORDER THE HONOURABLE MR. JUSTICE RUSSELL
AND ORDER OF:
DATED: FEBRUARY 26, 2004
APPEARANCES:
MR. PARVINDER SAUND FOR THE APPLICANT
MR. MICHAEL BUTTERFIELDFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
MR. PARVINDER SAUNDFOR THE APPLICANT
TORONTO, ONTARIO
MR. MORRIS ROSENBERGFOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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