IMM-665-96
BETWEEN:
CHUNG WAI PING
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JEROME, A.C.J.:
This is an application for an order setting aside the decision of a visa officer dated January 23, 1996, wherein the applicant was refused an application for permanent residence in Canada, and for certification of questions pursuant to section 83(1) of the Immigration Act. This matter came on for hearing at Toronto, Ontario on October 30, 1996 and November 25, 1996. At the conclusion of argument, I took the matter under reserve and indicated that these written reasons would follow.
At the time of the applicant's interview with the visa officer in Buffalo, New York, the forty-five year old applicant had been employed with the Hong Kong Bank for twenty-six years. The applicant expressed a desire to pursue an equivalent career in Canada, that of "utility clerk\bank". The applicant's brother and father are permanent residents of Canada, but the applicant has never visited Canada. The applicant stated that she was confident that she would be able to secure a position in Canada because colleagues in her field had immigrated and obtained jobs with the Hong Kong Bank of Canada. However, she had not contacted any of her colleagues or any potential employers with regard to the possibility of obtaining employment in Canada.
The applicant submits that the visa officer "double counted" the factors of arranged employment and age by reassessing them under "personal suitability", failed to take into account the money possessed by the applicant when assessing personal suitability, and improperly delegated the task of assessing the applicant's personal suitability to other officers and the media.
In her affidavit filed on this application, the visa officer attested in part as follows:
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18. ... I indicated to Ms. Ping that although she is experienced and confident regarding her employment potential, having not investigated the availability of employment in her field, her job search may be more difficult than she had anticipated, particularly given the negative state of the economy. By way of example, I noted [that] she may encounter competition from recent graduates entering the job market for the first time, who may be viewed by the employer as more attractive candidates because the possibility of payment of a pension would be much further in the future. |
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19. This failure on the part of the Applicant to take any action towards familiarizing herself with Canada or towards securing employment indicated to me a lack of initiative, adaptability, motivation and resourcefulness. Ms. Ping's motivation to immigrate to Canada was not fuelled by a desire to establish herself and her husband in Canada but rather by a desire to leave Hong Kong because of the upcoming change of government in 1997. |
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The respondent submits that the visa officer awarded the applicant five points for personal suitability based upon the applicant's reason for moving to Canada, her lack of knowledge of Canada, the funds available upon the applicant's arrival in Canada, her plans upon arrival to Canada, her failure to investigate the availability of employment in Canada, and the absence of an offer of formal or informal assistance from friends in Canada.
The category of personal suitability allows a visa officer to consider four factors, being the applicant's adaptability, motivation, initiative and resourcefulness in the context of that applicant's prospects for successful establishment in Canada. I am satisfied that the visa officer did not engage in "double counting" as the analysis under personal suitability was focused upon the four factors and not upon the assessments previously made with regard to the factors of age and arranged employment. I find that the fact that the applicant possesses approximately $760,000.00 Canadian was considered by the officer in determining that the applicant had the necessary means to support herself for a period of time and that it could be indicative of the applicant's resourcefulness. However, the applicant has failed to demonstrate why the possession of this money, in and of itself, merits a higher score on the factor of personal suitability.
I am not satisfied that the visa officer failed to carry out the assessment which was required of her, nor that she failed in her duty of fairness to the applicant. In the circumstances, I find no basis on which to interfere with the decision of the visa officer and, for these reasons, the application for judicial review is dismissed.
Decisions of the Federal Court - Trial Division in immigration matters may be appealed to the Federal Court of Appeal if at the time of judgment a question for appeal has been certified by the Trial Division. The applicant would like to have the following questions certified:
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1. Can an immigration officer re-examine factors 1 to 8 of the Immigration Regulations when assessing factor 9 of the Immigration Regulations? |
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2. Does the savings presented by an applicant for permanent residence come within the words "initiative, motivation, adaptability, resourcefulness and other similar qualities" contained at Schedule I, Factor 9 of the Immigration Regulations? |
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Subsection 83(1) of the Immigration Act governs the certification of questions for appeal:
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83(1) A judgment of the Federal Court - Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court - Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. |
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Thus, only "serious questions of general importance" can be certified. Similar language was interpreted by Mr. Justice Catzman of the Ontario High Court of Justice in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569. Catzman J. found that Rule 62.02(5)(b) of the Ontario Rules of Civil Procedure "contemplates issues of broad significance or general application that are felt to warrant resolution by a higher level of judicial authority" (supra at 575). The Federal Court of Appeal has relied on that reasoning and has added that the issue to be certified must also be determinative of the appeal (Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4).
I do not consider the questions proposed by the applicant to be appropriate for certification. They relate to issues which have been judicially resolved and do not require resolution by a higher level of judicial authority. Simpson J. in Stefan v. Canada (Minister of Citizenship and Immigration) (August 14, 1996), IMM-669-95 (F.C.T.D.) at p. 4-5 stated:
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What must be seen in an analysis under personal suitability is an assessment focused on the four Factors and not on the skill level already recorded in other parts of the assessment. |
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If this focus is achieved then Zeng [Zeng v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 167 (F.C.A.)] does not apply, and the fact that topics covered elsewhere in the assessment are looked at again from a different perspective involving the Factors will not constitute a reviewable error. |
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In Hemani v. Canada (Minister of Citizenship and Immigration) (November 26, 1996), IMM-2854-95 (F.C.T.D.) at p.3 Gibson J. stated with regard to the visa officer's assignment of points for "personal suitability":
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In Mangat v. Canada (Minister of Employment and Immigration) [(1991), 13 Imm. L.R. (2d) 184 (F.C.T.D.)], Mr. Justice Strayer, referring to the personal suitability criteria to be considered by visa officers in matters such as this, wrote: |
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The criteria listed under that factor are essentially those relevant to "getting on" from an economic standpoint, and I think the reference at the end to "other similar qualities" must be taken to refer to criteria of a similar nature. |
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It is clear to me ... that the visa officer directed his mind to the capacity of the Applicant to "get on" from an economic standpoint in assessing the Applicant's personal suitability. I cannot conclude that in so doing, the visa officer "double counted", considered irrelevant evidence or ignored relevant evidence. |
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I consider the foregoing analysis to have addressed the questions proposed by the applicant for certification. As such, I find that this application raises no serious questions of general importance which would warrant certification.
O T T A W A
January 17, 1997 "James A. Jerome"
A.C.J.
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