Date: 20010509
Docket: IMM-2447-00
Neutral citation:2001 FCT 455
BETWEEN:
LIU GUANG SHENG
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a decision of a visa officer at the Canadian Embassy in Beijing, People's Republic of China, wherein the visa officer rejected the applicant's application for permanent residence in Canada. The decision under review is dated the 24th of March, 2000.
[2] The applicant was assessed as a Cook, Foreign Foods: NOC Code 6242.0. He was awarded a total of 67 units of assessment when 70 units of assessment were required for a successful application.
[3] While the applicant was assessed in the independent category, the units of assessment awarded to him reflected additional units of assessment for "arranged employment" arising out of a family business job offer that had been approved by the Business Immigration Unit in the respondent's ministry.
[4] As a "Family Business Applicant", assessment of the applicant's application fell within guidelines contained in Appendix B to Chapter OP5 of Citizenship and Immigration Canada's Overseas Processing Manual. Item 1 in that Appendix reads as follows:
Special guidelines exist for the processing of applications for permanent residence in Canada under the family business requirements. The objective of this guideline is to expand the opportunities for family reunification. It provides an opportunity for a Canadian citizen or permanent resident to bring to Canada a member of his/her family when it can be demonstrated that it is more sensible to employ a family member rather than using normal recruiting practices to find an employee.
The unique feature of family businesses is the trust that exists among family members which is not readily found among those not bound by family ties. Family members, in many cases are more committed to the success of the business venture or undertaking. The standard employment validation procedures do not take into account this unique aspect of trust.
Applicants who meet the family business criteria will be awarded units of assessment as if they had an approved offer of employment. That is they will receive 10 units of assessment under the arranged employment selection criteria.
[5] The reference to "...opportunities for family reunification" in the above quotation clearly interrelates with the Canadian Immigration Policy Objectives reflected in section 3 of the Immigration Act[1]. The relevant portion of section 3 reads as follows:
| 3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act
shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need
...
(c) to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad;
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3. La politique canadienne d'immigration ainsi que les règles et règlements pris en vertu de la présente loi visent, dans leur conception et leur mise en oeuvre, à promouvoir les intérêts du pays sur les plans intérieur et international et reconnaissent la nécessité:
...
c) de faciliter la réunion au Canada des citoyens canadiens et résidents permanents avec leurs proches
parents de l'étranger;
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[6] The family business job offer program, apart from the fact that it provides for 10 units of assessment under the arranged employment selection criterion as noted above, does not replace consideration at a visa post abroad of the various factors to be assessed on an application for immigration to Canada that are set out in Schedule I to the Immigration Regulations, 1978[2]. One of those factors is "personal suitability" for which up to 10 units of assessment may be awarded. The criteria in relation to the personal suitability factor are described in Schedule I to the Regulations in the following terms:
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.
The applicant was awarded only three out of a possible 10 units of assessment with respect to personal suitability. It was in this assessment that counsel for the applicant urged the visa officer had erred in a reviewable manner. If the applicant had been awarded 6 or more units of assessment for personal suitability, he would have qualified for immigration to Canada.
[7] In her affidavit filed on this application for judicial review, the visa officer who interviewed the applicant and his wife explained her personal suitability assessment in the following terms:
I awarded three units of assessment for personal suitability based on the information before me. In my opinion, the Applicant displayed minimum motivation, initiative, adaptability and resourcefulness. By his own admission, the Applicant has never had a job interview nor experienced a job search. The Applicant was introduced to his current employer by a friend. The Applicant's employment history does not demonstrate initiative.
The Applicant has made minimal efforts to upgrade his current language abilities and has not attended any formal training in order to upgrade his working skills since his last interview on September 22, 1998. Also, the Applicant showed little resourcefulness in that he had not prepared for the interview. The Applicant was unable to reply to the simplest questions posed regarding his knowledge of the area where he would potentially settle. He relied on his spouse to answer on his behalf when asked what he knew about the city of Ottawa and then reiterated that he could only repeat what his wife had said. The Applicant displayed a minimum level of knowledge about Canada that appeared to be provided by his relatives in Canada. I do not feel that the Applicant demonstrated a level of motivation, initiative, adaptability or resourcefulness that one would expect to ensure a successful settlement.
[8] Counsel for the applicant urged that the visa officer erred in a reviewable manner in the foregoing assessment bearing in mind the family reunification objective set out in section 3 of the Immigration Act and reiterated as an objective of the guidelines with respect to family business applicants. He urged that upgrading of employment skills was an irrelevant consideration in light of the applicant's family business job offer, that the applicant's wife's adaptability, motivation, initiative and resourcefulness should have been taken into account and that efforts to upgrade the applicant's language abilities and his lack of preparation for the interview were essentially irrelevant in light of the employment situation in Canada to which the Applicant wished to come.
[9] I reject the submissions of counsel for the applicant. Personal suitability remains a factor to be considered in the assessment of applications such as that of the applicant in this matter. If it had been the intent of government to eliminate that factor from consideration in the case of family business applicants, that result could easily have been achieved. For what ever reason, it was not. In the result, the visa officer was fully justified in considering the applicant's personal suitability and the terms of the criteria in relation to that factor that are quoted above make it perfectly clear that it is the applicant's personal suitability that is to be considered, not that of he and any other members of his family unit.
[10] I simply cannot conclude that the visa officer's assessment of the applicant's personal suitability and her award of three units of assessment for that factor reflects reviewable error. It was not in dispute that the applicant had done essentially nothing to upgrade his skills in either English or French. Those skills remained minimal at best. He had done nothing to upgrade his skills as a chef. He apparently demonstrated nothing at interview that would indicate that he had prepared for his interview. He had apparently done nothing to acquaint himself with the environment into which he proposed to move.
[11] In the result, this application for judicial review will be dismissed. Neither counsel recommended certification of a serious question of general importance arising on this application for judicial review. No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
May 9, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2447-00
STYLE OF CAUSE: LIU GUANG SHENG
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, MAY 8, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: WEDNESDAY, MAY 9, 2001
APPEARANCES BY: Mr. David Bruner
For the Applicant
Mr. Michael Butterfield
For the Respondent
SOLICITORS OF RECORD: Hoppe, Bruner
Barristers & Solicitors
25 Isabella St.
Toronto, Ontario
M4Y 1M7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010509
Docket: IMM-2447-00
Between:
LIU GUANG SHENG
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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