Date: 20011101
Docket: IMM-1536-00
Neutral Citation: 2001 FCT 1187
Between:
ARFEEN SHAMSUL MUHAMMAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J.:
[1] This is an application for judicial review with respect to the decision of Susanna Ching, a visa officer (the officer) at the Canadian Consulate General in Hong Kong, People's Republic of China, dated February 15, 2000, refusing the applicant's application for permanent residence under the Assisted Relative Category pursuant to paragraph 11(3)(b) of the Immigration Regulations, 1978, SOR/78-172 (the Regulations).
[2] The applicant is a citizen of Pakistan. He submitted his application for permanent residence under the occupation of Civil Engineer (CCDO 2143-118). He was interviewed by the officer on February 11, 2000.
[3] The applicant was informed by letter that he had been awarded 69 units of assessment, four more than the minimum required. However, it was determined that the assessment did not accurately reflect the applicant's ability to become successfully established in Canada. The officer therefore recommended that negative discretion under paragraph 11(3)(b) of the Regulations be exercised. The applicant's application was then refused after this decision was approved by the officer's supervisor.
[4] At paragraph 16 of her affidavit, the officer explained:
. . . Although Mr. Muhammad was able to achieve 69 units of assessment (65 units are required in the assisted relative category), in my opinion, the units of assessment did not accurately reflect his chances of becoming successfully established in Canada. Mr. Muhammad had been employed by the same government agency for more than fourteen years. Despite that he had been allotted full units for experience in his intended occupation, he would face significant barriers to entry into Canadian job market because of his age, and lack of computer and language skills. In addition, Mr. Muhammad would take an extended length of time before he would become proficient in English in writing the engineering licensing examinations. It would be difficult for Mr. Muhammad to compete with younger professional engineers for job opportunities when he obtained his professional engineering licence. I was not satisfied that Mr. Muhammad could successfully established in Canada and support his family. . . .
[5] In Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the Federal Court of Appeal set out the standard of review for discretionary decisions by visa officers with respect to applications for immigration. This standard is the same as the one adopted by the Supreme Court of Canada in [1982] 2 S.C.R. 2">Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, where Mr. Justice McIntyre stated at pages 7 to 8:
. . . It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. . . .
[6] The first issue raised by the applicant involves the officer's evaluation of his language skills. The applicant noted on his application form for permanent residence that he spoke, read and wrote English "fluently". During the interview, the officer allowed the applicant to demonstrate his capacity to speak, read and write English, as stipulated by Factor 8 of Schedule I of the Regulations.
[7] In her affidavit, the officer sates that the applicant spoke with grammatical mistakes and syntax errors. As well, he read and wrote with difficulty when given reading and writing tests. Similarly, the applicant did not speak English as fluently as stated on the application form. Likewise, she notes that she had to repeat and rephrase her questions before he could give her his answers.
[8] When supporting her reasoning for exercising the negative discretion, the officer clearly emphasizes the barriers the applicant would face on the job market because of his language difficulties. As well, it would only be after an extended period of time before the applicant could become proficient in English and the applicant's resources would most likely be exhausted before he could secure a job as an engineer in order to support his family.
[9] The applicant further submits that the officer is bound by the criteria set out in the Canadian Classification and Dictionary of Occupations (CCDO) job description and that she erred by substituting her own criteria concerning the requirements for a civil engineer during the interview. Perhaps the officer's vocabulary was somewhat strong in reference to the word "mandatory" in the Computer Assisted Immigration Processing System notes, however, I believe the officer was simply referring generally to the necessity of computer skills in any engineering field and not specifically to that of a civil engineer within the CCDO requirements.
[10] I believe that the officer assessed the applicant's lack of computer skills solely in the context of the way he could become successfully established in Canada. The decision does not rely on the simple idea that the applicant would not make a good resident of Canada, but is based on the relevant fact that he could not compete with younger engineers for job opportunities and therefore would not be able to establish himself economically in Canada (see Mangat v. Canada (M.E.I.) (1991), 45 F.T.R. 128).
[11] I am of the opinion that the officer acted reasonably in exercising her discretion to refuse the applicant's application for permanent residence in Canada based on the applicant's lack of language and computer skills. In my view, the officer acted in accordance with the Regulations and her considerations reflect accurately the difficulties the applicant would face in order to become successfully established economically in Canada.
[12] Finally, as per settlement funds, the applicant states that the officer erred by not considering financial assistance promised by an intended spouse nor did she interview the applicant's spouse on the subject when she was requested to attend the interview. As well, the procedure by the officer was unfair in that she did not make further inquiries into the potential liquidity of the applicant wife's property. In this regard, I must state that it is the responsibility of the applicant to establish that he has met the criteria to enter Canada and that his admission would not be contrary to the Immigration Act, R.S.C. 1985, c. I-2, and the Regulations (see Ali (M.) v. Canada (M.C.I.) (1998), 151 F.T.R. 1 and Yu v. Canada (M.E.I.) (1990), 36 F.T.R. 296 at 304).
[13] Here, it is clear that the officer questioned the applicant on the issue of settlement funds. However, documentation concerning the value of the property held by the applicant's spouse as well as the amount of time estimated to sell this property was not produced as opposed to the situation in Bakhtiania v. Canada (M.C.I.), [1999] F.C.J. No. 1023 (F.C.T.D.) (QL), where the applicant presented a statement of her savings and the deed for her property in Iran. In this case, no information was provided, therefore the officer had no obligation to make enquiries.
[14] For the foregoing reasons, the intervention of this Court is not warranted and the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
November 1, 2001
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