Date: 19990407
Docket: IMM-3324-98
BETWEEN:
SABIRUDDIN SYED
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
NADON J.:
[1] The Applicant seeks to set aside a decision of a visa officer, namely Susan Mary Lopez, of the Consulate General of Canada in Detroit, state of Michigan, one of the United States of America. By her decision, the visa officer dismissed the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of India, was considered by the visa officer under the occupation of Photographer General, listed under 3315-110 of the Canadian Classification of Dictionary Occupations ("CCDO"). The Applicant was interviewed by the visa officer on June 3, 1998 and at the end of the interview, the Applicant was informed by the visa officer that his application would be refused. On July 14, 1998 the visa officer sent the following letter to the Applicant:
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This refers to your application for permanent residence in Canada. |
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I have now completed the assessment of your application for permanent residence in Canada and regret to inform you that it has been determined that you do not meet the requirements for immigration to Canada. |
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Pursuant to section 8(1) of the Immigration Regulations, 1978, independent applications, the class in which you have applied, are assessed on the basis of education, vocational preparation, experience, occupational demand, arranged employment or designated occupation, Canadian demographic factors, age, and knowledge of English and French languages and personal suitability. You were assessed based on the requirements for the occupations of Photographer General 3315110 and Sales Clerk 5137114. |
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I was not able to accept you in any other occupations, as you have no other work experience in any occupation in demand in Canada. |
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Your total point score as a Photographer General 3315110 is listed below: |
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I gave you full credit for your claimed work experience in your intended occupation. You have not been able to use this experience from India to help you settle in the United States. I am not convinced that you would find work in your field in Canada, as you could not do so here. You have demonstrated no knowledge of Canada other than what you have heard from your friends. I was only able to give you 13 points for education, because your bachelor degree was a two year degree full time, not three years. Your spoken English was extremely garbled for someone who had been in the United States for more than two years, but I gave you 8 units for English as I assumed that you were nervous. |
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You have obtained insufficient units of assessment to qualify for immigration to Canada. To pass you would need to have 70 units. You, therefore come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act and I have refused your application. |
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I have also assessed your application under the NOC criteria, in case your points total might have been better, but under the NOC code of 5221:0 for Photographers, you do not score any better. |
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Your Right of Landing fee will be refunded to you at a later date.
[3] As the visa officer clearly indicates in her letter, the Applicant had to obtain 70 points in order to qualify for immigration to Canada. The visa officer gave the Applicant 61 points and, as a result, his application was refused.
[4] In these proceedings, the Applicant challenged the visa officer's decision in regard to the factors of education and suitability. The Respondent takes the position that the visa officer did not err when she gave the Applicant 13 points for education and 4 points for suitability. The Respondent submits further that, even if the Applicant is right that the visa officer made mistakes in respect of her allocation of points under education and suitability, the Applicant would still not have obtained the minimum of points required to succeed on his application for permanent residence.
[5] With respect to education, the maximum that could have been obtained by the Applicant was 15. With respect to suitability, the maximum was 10. Consequently, assuming that the visa officer erred in respect of both factors, the Applicant would have obtained at best 8 additional points leaving him with a total of 69 points.
[6] In view of the above, I must conclude that even if the visa officer erred as submitted by the Applicant, the errors do not allow me to intervene since the Applicant, in any event, would not have obtained more than 69 points, one short of the minimum required. I find support for my conclusion in the Reasons for Order given by Evans J. in Barua v. MCI, [IMM-3152-97, 22 October 1998 (F.C.)]. At pages 9 to 11, Evans J. states:
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[21] I conclude, therefore that the visa officer erred in law when he included under the assessment of the applicant's personal suitability to become successfully established in Canada the fact that the applicant had "no family support in Canada" [as stated in the visa officer's affidavit], or "no family in Canada" [as recorded in the visa officer's own notes]. Finally, I should consider whether this error is sufficient to invalidate the refusal of a visa, since the visa officer also took other apparently more important and relevant considerations into account in the assessment of the applicant's personal suitability: the fact that the applicant had never travelled to, and knew little about Canada, and had demonstrated little other initiative with respect to his proposed move to Canada. |
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[22] In B'Ghiel (supra), Hugessen J. stated, that, since it is impossible to tell how much weight an officer assigned respectively to the relevant and irrelevant considerations that were taken into account, a reviewing court should not speculate on whether the officer's decision would have been different if the irrelevant factor had been excluded from consideration. This is an obviously sound general principle. However, in this case it is important to note that the visa officer awarded to the applicant a total of 6 out of a possible 10 units of assessment for personal suitability. On the basis of the evidence before me, this is a rather generous assessment. I find it inconceivable that the visa officer would have awarded two more units of assessment for personal suitability, which the applicant needed to become entitled prima facia to a visa, if the visa officer had omitted the applicant's lack of relatives in Canada from the several factors that he considered when assessing personal suitability. |
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[23] In conclusion, therefore, I exercise my discretion not to quash the visa officer's refusal of a visa, on the ground that his error was immaterial to the ultimate decision. Accordingly, the application for judicial review is dismissed.
[7] For these reasons, the Applicant's application for judicial review must be dismissed.
[8] The applicant has proposed that the following question be certified:
When the Court has determined that a visa officer has erred in law in the application of the Immigration Act and the accompanying Regulations, does the fact, irrespective of said error of law, that the applicant does not obtain the minimum units of assessment to be accepted at selection constitute a bar for the Court to intervene and quash the decision?
[9] The respondent opposes certification and, in so doing, refers me to the decision of the Federal Court of Appeal in Liyanagamage c. M.C.I., 176 N.R. 4 where, at page 5, Décary J.A. says:
In order to be certified pursuant to subsection 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of "importance" by Catzman J. in Rankin v. McLead, Young, Weir Ltd. et al. (1986), 57 O.R. (2) 569 (Ont. H.C.)) but it must also be one that is determinative of the appeal. The certification process contemplated by section 83 of the Immigration Act is neither to be equated with the reference process established by section 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case. [Emphasis added by the defendant]
[10] I agree entirely with the position taken by the defendant. The question proposed by the applicant cannot be determinative of an appeal from my decision since the alleged errors made by the visa officer do not affect the ultimate outcome. The plain fact is that the applicant cannot obtain more than 69 points and, thus, the decision made by the visa officer is unassailable.
[11] For these reasons, the proposed question shall not be certified.
Ottawa, Ontario "MARC NADON"
April 7, 1999 JUDGE
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