Date: 20000926
Docket: IMM-5107-99
BETWEEN :
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MAN SHIK SEO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This application is for the judicial review of a decision of a visa officer dated September 21, 1998, wherein she refused the applicant's application for permanent residence under the independent category, pursuant to section 18.1 of the Federal Court Act[1].
1. Facts
[2] The applicant was assessed on the occupation of telecommunications computer specialist (CCDO 2183-162). The units earned by the applicant were as follows:
Age 10
Occupational Demand 10
SVP 15
Experience 06
Arranged Employment 00
Demographic Factor 08
Education 15
English 00
French 00
Personal Suitability 04
Total 68
[3] Thus, the applicant was short two units from the 70 units required. As appears above, the visa officer did not award any units to the applicant for arranged employment on the ground that the employment she had in fact arranged had not yet been approved by Human Resources & Development Canada ("HRDC"). Neither did the visa officer award any units for language.
[4] The applicant contends that a number of factors should have been considered by the visa officer including her written English language abilities and the job offer. The other factors the applicant raised under personal suitability are double counting and the fact that her two children are currently studying in Canada on student visas.
2. The Job Offer
[5] In fact, the applicant was offered on March 19, 1999, a position as management information analyst in the telecommunication information development area of Terracom and Web Design Needs of Winnipeg, Manitoba. In her affidavit, the visa officer affirms that "this offer had not been approved by Human Resources and Development Canada as required by the Regulations".
[6] In Naviwala v. Canada (Minister of Citizenship and Immigration)[2], Joyal J. found that the sole fact that the visa officer failed to take into account a job offer made to the applicant when assessing personal suitability, along with other issues, were not "sufficiently material or important to affect substantively the visa officer's assessment". In the present instance, the visa officer was convinced by other factors that the applicant lacked the necessary personal suitability.
3. Other Personal Suitability Factors
[7] In paragraph 15 of her affidavit, the visa officer explains why she granted only four units to the applicant for the personal suitability factor. The applicant was not easily adaptable in the sense that she had already spent three months in Canada and, in spite of taking an English course and living in an English-speaking environment, she was unable to communicate in English at her interview. The applicant worked for more than 20 years for the same company and never changed employer or lived in another country. (That, in my view, does not by itself indicate a lack of adaptability). The applicant's intended occupation requires constant upgrading, formal studies in computer science and English skill, which the applicant has not acquired. Moreover, the citations that the applicant had received at work for her contributions did not indicate any particular effort on her part to upgrade her skills. The applicant had not made much effort toward making herself employable in Canada.
4. Double Counting
[8] As mentioned earlier, the visa officer considered factors related to her lack of knowledge of the English language in her analysis of the personal suitability of the applicant: she was "not especially adaptable". That consideration was related to her adaptability to a Canadian environment. That is not double counting.
5. Ability to Write in English
[9] The applicant submits that the visa officer breached the duty of fairness by failing to assess the applicant's ability to write in English. In her affidavit, the visa officer found that the applicant spoke, read and wrote English "with difficulty" at best. Usually, she assesses the writing ability of an applicant by dictating a text but felt that in the instant case it would have been pointless as the applicant did not understand her questions and they had to communicate through an interpreter. Under these circumstances, it is understandable why the visa officer would find it pointless to have her write anything in English.
6. Positive Discretion of the Visa Officer
[10] The applicant argues that the job offer above mentioned should have been considered in determining whether there are grounds for positive discretion under subsection 11(3) of the Immigration Regulations ("the Regulations"). This section allows a visa officer to exercise his or her discretion when the number of units does not reflect the applicant's chances of becoming successfully established in Canada. She also claims that the visa officer failed to appreciate the assistance that the applicant's two sons in Canada would have provided her.
[11] In my view, the visa officer was under no obligation to exercise her positive discretion since the applicant did not request it[3]. Rothstein J. said as follows with reference to the visa officer's discretion under subsection 11(3):
... Section 11(3) does not specify what is required to engage the visa officer's exercise of discretion under it. Nothing precludes the visa officer, on his or her own motion, from proceeding under s. 11(3) if he or she considers that it is warranted to do so. However, if an applicant wishes the visa officer to exercise discretion under s. 11(3), it would seem that some form of application would be required.
[12] In Yedla v. Canada (Minister of Citizenship and Immigration)[4], I followed Rothstein J.'s decision in a case where the applicant was merely short two units from the minimum of 70 units. I added as follows:
The Regulations do not provide for any specific form of application to request the visa officer to exercise his discretion under subsection 11(3). I presume that an applicant aware of the existence of subsection 11(3) of the Regulations would verbally ask the visa officer to exercise his discretion if he felt at the end of the interview that he may not be successful. But, an applicant is expected to put his best case forward and to relate to the visa officer all of the factors which would militate in his favour.
7. Disposition
[13] Consequently, I cannot find that the visa officer acted in bad faith, or considered factors which were irrelevant, or failed to consider factors which were relevant. However tempting it might be for a judge to add two points so as to favour an applicant, he cannot substitute his own assessment for that of the visa officer, unless that assessment was unreasonable. In my view, under the circumstances, the decision of the visa officer was not unreasonable.
[14] Consequently, this application for judicial is denied. We are all of the view that there is no question of general importance to be certified.
OTTAWA, Ontario
September 26, 2000
Judge
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