Date: 20031006
Docket: IMM-463-02
Citation: 2003 FC 1159
Ottawa, Ontario, this 6th day of October 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
GALYNA MALOVANA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Galyna Malovana (the "Applicant") seeks judicial review of the decision of Visa Officer Iwona Dabrowska-Duda (the "Visa Oficer"). In her decision, dated January 2, 2002, the Visa Officer refused the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of the Ukraine sought admission into Canada as a member of the "independent" category in September 1999. She included her son from her first marriage her husband and her husband's son as accompanying dependents on her application. She intended to work in Canada as an electrical engineer.
[3] The Applicant had obtained a diploma in electrical engineering in the Ukraine in 1987. She was assessed under the National Occupational Classification ("NOC") category 2133 for "Electrical/Electronic Engineers". She submitted educational documents, reference letters from her current employer in the Ukraine, and reference letters from her employer while living in Canada for three years in the early 1980's. She also provided a favourable assessment from the Canadian Council of Professional Engineers ("CCPE").
[4] The Visa Officer's refusal letter showed that the Applicant was awarded 69 units of assessment. She failed to meet the minimum required of 70 units needed for selection as a permanent resident.
[5] The background for this commentary is the fact that the Applicant had made a claim for Convention refugee status in Canada; that application was withdrawn in 1994 and a certificate of departure was issued to the Applicant on July 14, 1994.
[6] The Visa Officer, according to her affidavit, reviewed the Computer Assisted Immigration Processing System ("CAIPS") used by the Respondent to process applications for entry into Canada. The CAIPS notes showed that the Applicant had been refused permanent residence in Canada in 1995. The CAIPS notes also indicated that the file in connection with the former application had been destroyed and no search was conducted for further records. The Applicant denied having been refused prior admission to Canada, as a permanent resident, in 1995 until she "finally admitted that refusal had taken place".
[7] According to her affidavit, this incident affected the Visa Officer's assessment of the Applicant's credibility. In her refusal letter, the Visa Officer referred to the obligation imposed upon prospective immigrants pursuant to section 9(3) of the Act, to answer questions truthfully and to show admission into Canada would not be contrary to the Act and Regulations.
[8] In the refusal letter, the Visa Officer set out the basis upon which the units of assessment were awarded, as follows:
Your application for permanent residence in Canada was considered in the Independent (ND2) category pursuant to Section 8 of the Immigration Regulations and to the selection factors listed in column I of Schedule I of those same Regulations. I considered you in the occupation of Electrical Engineer (NOC 2133.0) and awarded you the following points:
Age 10
Occupational Factor 05
Educational Training Factor (ETF) 17
Experience 08
A.R.E. 00
Demographic Factor 08
Education 15
English 02
French 00
Bonus 00
Suitability 04
Total 69
[9] The Visa Officer also set out the following rationale for her award of 4 units, out of a maximum of 10, for personal suitability:
I awarded you four units of assessment for personal suitability. It was my conclusion that the level of motivation, resourcefulness, initiative, among other qualities, which you demonstrated was less than medial. You had not demonstrated that you had undertaken any research or preparation on your own which may improve your chances for successful integration.
[10] The Applicant now argues that the Visa Officer committed a reviewable error in the manner in which she assessed personal suitability, specifically by failing to take into account the fact that she had previously lived and worked in Canada for a period of three years. Second, the Applicant argues that the Visa Officer erred by "double-counting" her English language proficiency in assessing personal suitability.
[11] The Respondent submits that the Visa Officer properly exercised her discretion in assessing the Applicant's application and committed no reviewable error either with respect to personal suitability, generally, or the issue of English language fluency.
[12] The decision under review was one involving the exercise of discretion by the Visa Officer. In Gill v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 127 at 128 the Court made the following statement about the exercise of discretion in assessing personal suitability:
I am satisfied the visa officer did not err in refusing Mr. Gill's application for permanent residence. The legislative provisions confer a broad discretion on a visa officer in making a determination of this nature and it is entirely within his jurisdiction to form an opinion concerning an applicant's personal suitability based on factors such as adaptability, motivation, initiative, resourcefulness and other qualities. Provided that opinion is reasonable and is neither arbitrary or capricious, there are no grounds to warrant judicial interference.
[13] In Maniruzzaman v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 139 at 140 the Court also dealt with the assessment of personal suitability. Justice Reed made the following observation:
I turn then to the visa officer's assessment of the applicant's personal suitability. She awarded the applicant 4 points out of a possible 10. This is an area of assessment where visa officers have great discretion. Nevertheless, that discretion must be exercised in a principled and reasonable way. The Supreme Court in Chen v. Canada (M.E.I.), [1995] 1 S.C.R. 725, approved Mr. Justice Strayer's decision at (1991), 13 Imm.L.R. (2d) 172 (F.C.T.D.), which made it clear that the assessment of personal suitability required by the Immigration Regulations, 1978, SOR/78-172, must be directed to whether the person is likely to be able to support themselves economically in Canada. The awarding of units under that heading is described in Column II, Schedule I of the Regulations:
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.
[14] Justice Reed reviewed aspects of the record and at page 144 said as follows:
The above review shows that the visa officer placed an inordinate amount of weight on relevant but not central factors (e.g., his knowledge of the geography of Canada). At the same time, she appears to have ignored or not explored relevant areas. When assessing personal suitability, the characteristics of "adaptability, motivation, initiative, [and] resourcefulness" are to be assessed. While the applicant's present knowledge of Canada and the banking system are relevant, a broader evaluation is required to assess the above described characteristics. This is particularly true in a situation such as the present where an applicant is one or two points short of the required total.
[15] In the present case, the record suggests that the Visa Officer placed too much weight on the Applicant's delay in acknowledging a prior application for permanent residence in Canada. This unwarranted emphasis apparently tainted this Visa Officer's assessment of the Applicant's personal suitability. The Applicant's personal suitability should be assessed primarily on her ability to become successfully established in Canada: see Chen v. Canada (M.E.I.), [1995] 1 S.C.R. 725; and Mangat v. Canada (M.E.I.) (1991), 45 F.T.R. 128. The Applicant was entitled to an objective assessment of that factor and the record casts doubt on its existence.
[16] In the result, this application for judicial review is allowed and the matter is remitted to a different Visa Officer for redetermination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a different Visa Officer for redetermination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-463-02
STYLE OF CAUSE: GALYNA MALOVANA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, SEPTEMBER 22, 2003
REASONS FOR ORDER BY: HENEGHAN J.
DATED: OCTOBER 6, 2003
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Chaudhary Law Office
Barristers and Solicitors
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20031006
Docket: IMM-463-02
BETWEEN:
GALYNA MALOVANA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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