Date: 20010612
Docket: IMM-3778-00
Neutral Citation: 2001 FCT 648
BETWEEN:
VENKATA REDDI KASARLA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Calgary, Alberta
on Monday, June 11, 2001, as edited)
McKEOWN J.
[1] The applicant seeks judicial review of the decision of a Visa Officer dated June 19, 2000, whereby the Officer refused the applicant's application for permanent residence in Canada.
[2] The issue in this case is: Did the Visa Officer err in assessing the applicant's personal suitability as part of his assessment of the applicant under Schedule I of the Immigration Regulations, 1978?
[3] The standard of review is set out by McDonald J.A., sitting as a Trial Division judge, in Shen v. Canada (M.C.I.), [1999] F.C.J. No. 2031 (T.D.) at paragraph 6 where he referred to the case of Ho v. Canada (M.E.I.), (1994) 88 F.T.R. 146, and then set out the standard of review as follows:
... did the visa officer exercise her discretion in bad faith, in reliance upon extraneous or irrelevant considerations or in a manner which does not accord with the Act, the Regulations or the principles of fundamental justice.
[4] The Visa Officer has discretion in determining the number of points to be awarded under the various categories. In this case, unlike the others, the Visa Officer starts out by assuming an average count of five for personal suitability and determines then whether there are reasons to raise or lower this number of points. In virtually all other cases the Visa Officer starts out at zero and adds points for various factors.
[5] This Visa Officer looked at all the evidence and did not ignore any evidence nor double count. He had stated in his affidavit that the applicant's age was likely to be a disadvantage to the applicant when seeking employment in Canada and he had considered that under the age factor. On cross-examination the Visa Officer stated that he did not look at the applicant's age when assessing him under "personal suitability" because to do so would be to double count.
[6] The Visa Officer considered that the applicant's $45,000.00 in funds would help to establish the applicant in Canada, but didn't regard these funds as enough of a positive factor to raise the applicant's points above average. He also looked at the evidence of the applicant's work in three other countries in addition to India as a mechanical engineer, and again saw it as neutral insofar as raising the points for personal suitability above the average. He looked at the adequacy of the applicant's level of research into potential employment in Canada and decided the applicant could have shown more resourcefulness and initiative.
[7] The Visa Officer took into consideration the applicant's friends' recommendations with respect to his ability as a mechanical engineer under "experience and ability," and not under "personal suitability," since these recommendations did not offer any jobs or suggest particular openings.
[8] It was open to the Visa Officer to weigh all of these factors and find that the average score of five points for personal suitability was appropriate for this applicant. It is not for this Court to re-weigh the evidence. As stated earlier, this Visa Officer exercised his discretion in a different way from other visa officers and the facts in other cases do not assist. He did not exercise his discretion in bad faith or in reliance upon extraneous or irrelevant considerations or in a manner inconsistent with the Immigration Act, R.S.C. 1985, c. I-2 or theImmigration Regulations, 1978 or the principles of fundamental justice.
[9] The application for judicial review is dismissed.
"W.P. McKeown"
JUDGE
CALGARY, ALBERTA
June 12, 2001
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