Khan v. Canada (Minister of Citizenship and Immigration), docket IMM-5318-99

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docket IMM-5318-99

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Date: 20001016

Docket: IMM-5318-99

BETWEEN:

SHAFI AHMED KHAN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

LEMIEUX J.:

INTRODUCTION

[1] Shafi Ahmed Khan (the "applicant") in this judicial review application, seeks to set aside the September 20, 1999 decision of Cindy Cheng (the "visa officer") who, after interviewing him on July 27, 1999, refused his application in the independent category for permanent residence to Canada with an intended occupation of Human Resources Officer (NOC: 1223) which had been filed with the Consulate General of Canada in Hong Kong on April 7, 1998. The applicant needed an assessment of 70 units; he obtained 68 units.

[2] The applicant finds two faults with the visa officer's decision. First, her award of only 13 points out of a possible 16 for the education factor. The applicant says he has a master's degree which entitles him to 16 points. Second, the refusal by the senior immigration officer at the Canadian Consulate to approve the visa officer's recommendation for positive exercise of discretion under paragraph 11(3)(a) of the Immigration Regulations (the "Regulations") and this by taking into account irrelevant considerations or misconstruing the evidence.

THE FACTS AND THE LEGISLATIVE BACKGROUND

(1) The education factor

[3] The education factor, set out in Schedule I to the Regulations, reads:

1. Education (1) Subject to subsections (2) to (4), units of assessment shall be awarded as follows:

(a) where a diploma from a

secondary school has not been

completed, zero units;

(b) where a diploma from a

secondary school has been

completed, the greater number of the following applicable units:

(i) in the case of a diploma

that does not lead to entrance

to university in the country of

study and does not include

trade or occupational

certification in the country of

study, five units,

(ii) in the case of a diploma

that may lead to entrance to

university in the country of

study, ten units, and

(iii) in the case of a diploma

that includes trade or

occupational certification in

the country of study, ten

units;

apprenticeship certificate that

requires at least one year of

full-time classroom study has

been completed at a college,

trade school or other post-

secondary institution, the

greater number of the following

applicable units:

(i) in the case of a diploma or

apprenticeship certificate

program that requires

completion of a secondary

school diploma referred to in

subparagraph (b)(i) or (iii) as

a condition of admission, ten

units, and

(ii) in the case of a diploma

or apprenticeship certificate

program that requires

completion of a secondary

school diploma referred to in

subparagraph (b)(ii) as a

condition of admission,

thirteen units;

(d) where a first-level

university degree that requires

at least three years of full-time

study has been completed, fifteen units; and

(e) where a second- or third-

level university degree has been

completed, sixteen units.

(2) Units of assessment shall only

be awarded for a diploma, degree or apprenticeship certificate referred

to in any of paragraphs (1)(b) to

(e) that has been completed at an

institution other than a designated

institution and in a field of study

other than a designated field of study.

(3) Only a single diploma, degree or

apprenticeship certificate shall be

taken into consideration when

determining the units of assessment

to be awarded in accordance with the

applicable paragraph of subsection (1).

(4) The units of assessment set out

in paragraphs (1)(b) to (e) shall

not be awarded cumulatively, and the

number of units of assessment set

out in the applicable paragraph that

awards the greatest number of units

shall be awarded. [emphasis mine]

1. Études (1) Sous réserve des paragraphes (2) 16 à (4), des points d'appréciation

sont attribués selon le barème suivant :

a) lorsqu'un diplôme d'études

secondaires n'a pas été obtenu,

aucun point;

b) lorsqu'un diplôme d'études

secondaires a été obtenu, le plus élevé des nombres de points applicables suivants :

(i) si le diplôme ne rend pas

le titulaire admissible à des

études universitaires et ne lui

confère pas de qualification de

membre d'un corps de métier ou d'un groupe professionnel dans le pays où il a été obtenu, 5 points,

(ii) si le diplôme rend le

titulaire admissible à des

études universitaires dans le

pays où il a été obtenu, 10

points,

(iii) si le diplôme confère une

qualification de membre d'un

corps de métier ou d'un groupe professionnel dans le pays où il a été obtenu, 10 points;

c) lorsqu'un diplôme ou un

certificat d'apprentissage d'un

collège, d'une école de métiers

ou de tout autre établissement

postsecondaire, qui comporte au moins un an d'études à temps plein en salle de cours, a été obtenu, le plus élevé des nombres de points applicables suivants :

(i) si le programme d'études

menant à un tel diplôme ou

certificat exige un diplôme

d'études secondaires visé aux

sous-alinéas b)(i) ou (iii), 10

points,

(ii) si le programme d'études

menant à un tel diplôme ou

certificat exige un diplôme

d'études secondaires visé au

sous-alinéa b)(ii), 13 points;

d) lorsqu'un diplôme

universitaire de premier cycle,

comportant au moins trois ans

d'études à temps plein, a été

obtenu, 15 points;

e) lorsqu'un diplôme

universitaire de second ou de

troisième cycle a été obtenu, 16

points.

(2) Des points d'appréciation ne

sont attribués que pour les diplômes ou certificats visés aux alinéas (1)b) à e) qui ont été obtenus d'un établissement autre qu'un établissement désigné et dans le cadre d'un programme d'études autre

qu'un programme d'études désigné.

(3) Lors de la détermination du nombre de points d'appréciation à

attribuer, selon l'alinéa applicable

du paragraphe (1), un seul diplôme ou certificat est pris en

considération.

(4) Les points d'appréciation visés aux alinéas (1)b) à e) ne peuvent être attribués cumulativement et

seul le nombre de points le plus

élevé, parmi les alinéas

applicables, est retenu.

[4] In his application for permanent residence, the applicant wrote the following about his educational background:

(a) From January 1959 to June 1968, attendance at Devagram High School obtaining a secondary school certificate;

(b) From July 68 to June 1970, attendance at Brahmanbaria College obtaining a H.S.C.;

(d) From July 1973 to April 1978, attendance at the University of Dhaka obtaining an M.B.A.

[5] It is noted the applicant's first university degree was received after two years of full-time attendance. For such a degree, the Regulations clearly prescribes "at least three years of full-time study" in order to obtain 15 units. The applicant, in this judicial review proceeding, filed an affidavit in support. This is what he said about his educational background:

6. Following the completion of my Secondary and Higher Secondary School Certificate, I attended at the University of Dhaka where, after completing two years of full-time post secondary study, I received a Bachelor of Commerce degree. In Bangladesh, this type of degree is commonly referred to as a Bachelor of Commerce degree "Pass" degree as opposed to a Bachelor of Commerce "Honours" degree which requires three years of full-time study. I supplemented this degree with the completion of a two-year Master of Business Administration degree also from the University of Dhaka.

[6] Mr. Khan, in his affidavit, commented on the visa officer's explanation of why she assessed him 13 units:

11. ... Ms. Cheng went on to say, however, that she could only award 13 units of assessment in the "education" category because my Bachelor's degree was only two years in duration notwithstanding that I had also received a Master of Business Administration. I explained to Ms. Cheng that while it was true that my Bachelor's degree was received after only two years of full-time study, I had in fact accumulated over four years post-secondary education leading to the completion of both a Bachelor's and a Master's degree. I also told Ms. Cheng that with the educational background that I had already completed, I was entitled to immediately enroll in any Doctorate of Business Administration program in the United States or India. Ms. Cheng advised me that she would have to speak to her superior before she could make a final decision on my application. [emphasis mine]

[7] The visa officer's CAIPS notes indicate the following entry:

PI (principal applicant) completed a two-year full-time university program in commerce as well as a MBA degree which was a four-year part-time program. PI would only qualify for 13 education points as his first level degree does not meet the requirements as stated by the Immigration Act therefore his second level degree cannot be taken into account.

[8] The visa officer also filed an affidavit in these judicial review proceedings. This is what she said at paragraph 9 of her affidavit concerning her award of 13 points to Mr. Khan:

I reviewed the applicant's education. The applicant completed a two-year full-time Bachelor of Commerce programme as well as a four-year part-time Master of Business Administration programme both at the University of Dhaka. I therefore awarded the applicant 13 points for education as his first level degree was not a three-year full-time program, required as stated in Schedule I of the Immigration Regulations, 1978, for awarding points for a first level degree.

[9] The applicant, after the interview he had with the visa officer, immediately contacted Mr. Ian Wong of Bush, White, Barristers and Solicitors in Toronto, who had assisted him in the preparation of his application for permanent residence. Mr. Wong immediately communicated with the visa officer by letter dated July 28, 1999, indicating that Mr. Khan had advised him that it was her position that his four years of post-secondary education will accord him only 13 points, as opposed to the 16 points claimed in his submission letter. Mr. Wong's communication focussed on paragraph 1(d) and (e) of the education factor. He wrote:

It was apparently your position that because Mr. Khan's bachelor's degree was only two years in duration, that you would be unable to award him sixteen points. I would respectfully submit to you that by any reasonable interpretation of the foregoing provisions of Schedule I, that Mr. Khan should be eligible for at least fifteen, if not sixteen, units of assessment under the education factor. It seems as a matter of common sense that four years of post-secondary training at a well-established educational institution leading to both a Bachelor of Commerce and Master of Business Administration should be accorded at least the same number of points that an applicant would be entitled to for obtaining a first year university degree requiring only three years of full-time study. Any other interpretation would, in my respectful view, lead to an absurdity.

(2) Refusal of paragraph 11(3)(a) discretion

[10] Subsection 11(3) of the Regulations reads:

(3) A visa officer may

(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or

(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,

if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer [emphasis mine]

3) L'agent des visas peut

a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou

b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,

s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.

[11] The visa officer's refusal letter of September 20, 1999 made no reference to the exercise of discretion under this paragraph.

[12] Her CAIPS notes said this about the matter:

Case referred for positive discretion for following reasons: PI principal applicant has travelled to many different countries including USA 3X for holidays (longest time in USA was two months). PI's proficiency in English is high (sample of reading and writing tests on file). PI has distant relatives and friends in province of destination. PI's occupation is in demand and PI has sufficient funds for settlement. PI has done some research on settlement and PI is currently working for a multi-national firm (i.e.: Shell) and has worked in Saudi Arabia. PI is one point short of passing selection. Believe that points awarded do not accurately reflect PI's ability to settle in Canada. PI was advised of consideration for positive discretion which will be supervisor's decision. [my emphasis]

[13] Her affidavit filed in support of this judicial review proceeding, said:

12. The applicant scored a total of 68 units of assessment. I considered the applicant's settlement potential in Canada including his past travel record which included visiting the United States of America three times as well as various parts of East Asia, his work abroad in Saudi Arabia from January 1981 to April 1986, the demonstration of his initiative to immigrate to Canada by searching for employment via internet and contacting friends already in Canada.

13. The applicant's application was submitted to our Immigration Programme Manager Murray Oppertshauser (a senior immigration officer) on August 2, 1999, for approval to use positive discretion under subsection 11(3) of the Immigration Regulations, 1978.

14. The use of positive discretion was denied by Mr. Oppertshauser on August 10, 1999.

[14] In her CAIPS notes, the visa officer recorded this item on September 1, 1999:

Case reviewed by supervisor who has denied recommendation for positive discretion for the following reasons: - PI's age factor (i.e.: 46 years old) - PI's funds for settlement (i.e. 3 dependents including wife who does not intend to work) - no apparent strong ties to Canada.

ANALYSIS AND CONCLUSIONS

(1) Proper interpretation of the educational factor

[15] The question here is whether the visa officer correctly interpreted the regulatory provisions relating to the education factor as set out in the schedule to the Regulations. In matters of interpretation of legislative or regulatory provisions, the standard of review is correctness.

[16] In particular, the question is whether the visa officer was correct in holding the award of 16 units for a master's degree was conditioned upon the applicant having a first level university degree granted only by having studied full-time for at least three years to earn that degree.

[17] Counsel for the applicant argues having a first level university degree earned by studying at least three years full-time is not a condition to the applicability of paragraph 1(e) -- the completion of a second or third university degree.

[18] If this was a condition, he argued, the results would be illogical and perverse because it would freeze or disentitle forever an applicant for permanent residence to Canada with a first level university degree earned with two years full-time study (a Pass B.Com. in Bangladesh) from ever obtaining 16 units regardless of the number of second, third, fourth or fifth university degrees he or she had earned.

[19] He argues there is nothing in the education factor which suggests that in order for an applicant to be awarded 16 points for possessing a second level university degree that the first degree must be three years in duration. He argues the visa officer has, in effect, imported her own criteria into the schedule.

[20] Further, counsel for the applicant argues the applicant does not fit within the provision in the schedule which would justify awarding 13 points because this provision directs the awarding of that number of points only where the applicant has completed a diploma or apprenticeship certificate as opposed to a degree that requires completion of a secondary school diploma. He says that as the applicant, in the case at hand, has neither completed a diploma or apprenticeship certificate, there is no support for the visa officer's decision to award the applicant 13 units of assessment in the education category.

[21] Finally, counsel for the applicant says a visa officer's interpretation is contrary to the purpose of the assessment system which is set out in subsection 8(1) which is "...for the purpose of determining whether an immigrant and the immigrant's dependents... will be able to become successfully established in Canada.

[22] Counsel for the respondent counters by saying the Court is bound by the Regulations which lay out the rules for assessment and clearly the applicant has not met the regulatory requirements for recognition of a first level university degree which is a pre-condition to the consideration of awarding 16 units for a second degree as was held in the case of Hameed v. Canada (M.C.I.) (1998), 44 Imm.L.R. (2d) 215 (F.C.T.D.), appeal pending.

[23] In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 26, Mr. Justice Iacobucci, on behalf of the Court, held to be the proper approach to statutory interpretation quoting from Elmer Driedger's Construction of Statutes, (2^nd ed. 1983) at page 87 (41 of the reported case):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[24] Counsel for the respondent's reliance on Hameed, supra, is not misplaced. In that case, Rothstein J., as he then was, was faced with a factual situation identical as the one before me: an applicant with a Master's degree but with a first level university degree earned with less than three years full-time study. At page 217 of the reported case, Justice Rothstein held as follows:

The relevant paragraphs are 1(d) and 1(e) and subsections 1(3) and 1(4) of Factor I in Schedule I. There is no minimum study time specified in paragraph 1(e) for a second or third level university degree. However, fifteen (15) units are to be awarded for a first level university degree, which requires at least three years of full-time study. The necessary implication is that an applicant's second or third level university degree for which he or she is to be awarded sixteen (16) units, cannot be considered unless he first satisfies the visa officer that he has completed a first level university degree that requires at least three years of full-time study. Here, the applicant did not meet the first level university degree requirement because his first level degree did not require three years of full-time study.

Based on subsections 1(3) and 1(4), the applicant submits that the second and third level degrees must be considered independent from the first level degree. However, subsection 1(3) only means that in awarding units, a single degree should be considered even if an applicant has more than one. Subsection 1(4) precludes the accumulation of units provided for succeeding levels of education and requires that the highest number of units applicable shall be awarded. The progression from lower to higher education and lesser to greater numbers of educational units is linear. In other words, a lower level of education must be met before going on to a higher level. It follows that for an applicant to qualify for sixteen (16) units for a second or third level university degree, he must first satisfy the requirements for a first level university degree that require at least three (3) years of full-time study. He was unable to do so. Therefore, no error by the visa officer in awarding only thirteen (13) units for education.

[25] Mr. Justice Rothstein certified the following question on appeal:

Under Schedule I of the Immigration Regulations, 1978, whether sixteen (16) units of assessment must be awarded for a second or third level university degree even if an applicant has not provided evidence of a first level university degree requiring at least three years of study.

The Federal Court of Appeal will consider Mr. Justice Rothstein's certified question in an appeal scheduled to be heard in November, 2000. In the circumstances, it is permissible, I believe, to advance a different point of view. I am of the opinion that, as a matter of statutory construction, meeting the requirements of paragraph 1(d) is not a necessary condition to the application of paragraph 1(e) and the award of sixteen (16) units for a master's or doctoral degree. My reasons are as follows.

[26] First, where the draftsperson wanted to make a diploma conditional upon completion of a lower level requirement, the draftsperson said so. For example, paragraph 1(c)(i) reads "in the case of a diploma or apprenticeship program that requires completion of a secondary school diploma... as a condition of admission". It seems to me the visa officer's interpretation results in rewriting paragraph 1(e) so as to say "in the case of a second or third-level university degree that requires completion of a first level university degree referred to in paragraph 1(d) as a condition of admission, 16 units". In my view, such rewriting is not permissible.

[27] Second, the structure of section 1 relating to the educational factor is drafted in terms similar to other provisions in the schedule where each paragraph begins with the words "where", in French "lorsque" suggesting, unless specifically linked to a previous paragraph, a self-contained independent requirement. Factor 2, the education and training factor, is drawn in a similar fashion.

[28] Third, the interpretation that paragraph 1(e) is self-standing and not conditioned upon paragraph 1(d) is further enhanced by considering subsection 1(4), the prohibition against cumulation which would not be necessary if the respective sub-paragraphs were not independent (unless specifically linked) and gives substance to the intent that the greatest number of units shall be awarded.

[29] Fourth, paragraph 1(d) only speaks to one circumstance and that is, to the award of 15 units where a university requires its first degree to be earned through at least three years full-time study. This paragraph does not speak to other circumstances where the first level degree does not require three years of full-time study. This silence should not be interpreted to turn the purpose of paragraph 1(d) into something which was not intended, that is, a precondition to obtaining 16 units where a Master's or Doctor's degree has been completed.

[30] Fifth, failure to accord paragraph 1(d) independent status creates disharmony with the other provisions of the section and specifically in these circumstances, the award of 13 points for situations other than those related to university education.

[31] Sixth, the no-linkage interpretation between paragraphs 1(b) and 1(e) best promotes, in my view, the purpose of the assessment system prescribed in the Regulations which is for the purpose of determining whether an immigrant and the immigrant's dependents will be able to become successfully established in Canada.

[32] In my view, the visa officer erred in law in denying the applicant 16 units when she interpreted paragraph 1(e) as dependent upon meeting the requirements of paragraph 1(d). The applicant is entitled to 16 units.

(2) Improper exercise of discretion under paragraph 11(3)(a)

[33] It is necessary, in my view, to deal with the applicant's second ground of appeal because I may be wrong in the interpretation of the educational factor.

(a) Consideration of the applicant's age

[34] Counsel for the applicant argued that to the extent the applicant's age is already accounted for in Factor 7, the senior immigration officer has engaged in double counting. Counsel noted the senior immigration officer did not give any reasons as to why the applicant's age had any bearing on his ability to successfully establish himself in Canada which is the test encompassed in paragraph 11(3)(a) of the Regulations. He argued that in determining whether to exercise discretion under this paragraph, an analysis must be done as to why the applicant's units of assessment do or do not reflect the chances of him or her becoming successfully established in Canada. He argues it is not enough to merely recite facts without engaging in an analysis as to how those facts may reflect negatively on the applicant's ability to successfully establish himself in Canada.

(b) The lack of funds

[35] The second ground advanced by the respondent's officials relates to an apparent lack of funds. Counsel for the applicant notes that the visa officer, in her CAIPS notes, and in her affidavit, considered $16,000 in settlement funds as confirmed and sufficient by her. He argued no reasons were given by the senior immigration officer as to why the funds available to the applicant which were considered sufficient by the visa officer support a conclusion that he is not likely to successfully establish himself in Canada, noting that if the applicant's funds were sufficient to satisfy the settlement criteria in the Immigration Act, then it is unclear why those same funds could not support a positive finding under paragraph 11(3)(a). He further argued an error was committed by the senior immigration officer's failure to consider the applicant's property and assets in Bangladesh valued at more than $67,000 which would have been sold if the applicant's application had been approved, noting that this amount had been indicated in the applicant's application for permanent residence. The applicant asserts he had property certificates confirming his ownership when he came to the interview but did not show them to the visa officer as he was never advised that he had insufficient funds for settlement purposes.

(c) No apparent strong ties to Canada

[36] The final grounds invoked by the senior immigration officer not to support the visa officer's recommendation for the exercise of positive discretion, relates to the applicants having no apparent strong ties to Canada. Counsel for the applicant argues that, at his interview, the applicant indicated he had second cousins living in Mississauga who would assist him in his transition to Canada and in securing employment and that he had "surfed" the Net for job possibilities. The applicant had also visited the United States spending four or five months in that country. Counsel for the applicant argues that nowhere in either the CAIPS notes or in the visa officer's affidavit is there any mention of these facts.

[37] At the opening of the hearing, counsel for the respondent abandoned the jurisdictional issue to the effect the Court was foreclosed from entertaining a challenge to the senior immigration official's refusal to approve the visa officer's recommendation for the exercise of positive discretion. In her memorandum, counsel for the respondent had raised the issue that leave to appeal had not been obtained in respect of this decision under subsection 82.1(2) of the Immigration Act (see Lee v. Canada [1999] F.C.J. No. 1634, Richard A.C.J., as he then was).

[38] I note, in these proceedings, the senior immigration officer did not provide any affidavit explaining the circumstances which led him not to approve the visa officer's recommendation. The evidentiary record is limited to the affidavit of the visa officer and the certified record.

[39] The principles guiding the exercise of discretion under paragraph 11(3)(a) are well-known and apply to both a visa officer's "good reasons" and a senior immigration officer's refusal.

[40] The exercise of discretion must be approached from an economic perspective related to the ability of an applicant for permanent residence to make a living in Canada. This principle is expressed in Chen v. Canada (M.E.I.), [1995] 1 S.C.R. 725 approving the views expressed by Strayer J., (as he then was), [1991] 3 F.C. 350 and Robertson J.A., dissenting in the Federal Court of Appeal, [1994] 1 F.C. 639.

[41] In Khan v. Canada (M.C.I.), [1997] 128 F.T.R. 126, Richard J., as he then was, expressed the view the purpose underlying the discretion conferred in this paragraph is to cover situations where the selection criteria failed to properly assess what they are designed to do, that is, to determine the ability of an applicant to successfully establish himself or herself in Canada. He also expressed the view the discretion was a broad one but not unrestricted and had to be exercised based on proper principles such as good faith, no irrelevant considerations and not ignoring relevant ones.

[42] I cannot agree with the applicant's submission the senior immigration officer took into account an irrelevant consideration and double counted the applicant's age. It is settled law that a visa officer, in the exercise of discretion under this paragraph, may have regard to the selection criteria (see, Covrig (1995), 104 F.T.R. 41, Muldoon J.; Savin v. Canada (M.C.I.) (1995), 102 F.T.R. 67, Cullen J.; Mao Xiang et al. v. Canada (M.C.I.), Imm-844-96, [as yet unreported] Pinard J. and Khan, supra).

[43] The reason this is so flows from Parliament's intention for the conferring of the discretion. Parliament was aware the selection criteria may not, in all cases, truly reflect a person's ability for successful establishment in Canada. In this context, the discretion is an override or safety valve mechanism to be used strictly to attain its intended purpose, namely, to accurately assess an individual's ability for successful establishment in Canada.

[44] The standard of review of the exercise of the senior immigration officer's discretion in this case is set out in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, namely reasonableness gauged in the perspective set out by Iacobucci J. in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56:

An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.

[45] Applying the Southam, supra, standard in this case, I conclude the senior immigration officer's decision to refuse approval of the visa officer's recommendation must be set aside as being unreasonable in the evidentiary context of the failure of the respondent to respond to the applicant's affidavit filed in these judicial review proceedings (see Hoballahi v. Canada (M.C.I.) (1997), 124 F.T.R. 164, McGillis J.

[46] First, the evidentiary foundation for the decision appears lacking principally in respect of the settlement funds where account could not have been taken of the $67,000 represented by the applicant's property in Bangladesh and this because it was not mentioned in the visa officer's written recommendations.

[47] Second, while the applicant's age was a relevant factor, the senior immigration officer does not explain how the applicant's age (46) is a negative element for his intended occupation, i.e. a human resource officer, an occupation which is in demand in Canada and where the visa officer has recognized that the applicant has employment possibilities in Canada.

[48] Third, the senior immigration officer seems not to have taken into account those aspects of the visa officer's reasons supporting a positive recommendation: his high proficiency in English, high occupational demand in Canada with consequent employment opportunities, his work abroad and his resourcefulness.

[49] Lastly, and this is not a major point in my reasoning, the senior immigration officer ignored the applicant's distant relatives in Canada who offered assistance in his transition here.

DISPOSITION

[50] For all of these reasons, the decision refusing the applicant's application for permanent residence to Canada is set aside and the matter is remitted for re-determination by a different visa officer and senior immigration officer in accordance with these reasons. I certify the following question:

Is my interpretation of the educational factor in Schedule I to the Regulations correct?

[51] No costs are awarded.

"François Lemieux"

J U D G E

OTTAWA, ONTARIO

OCTOBER 16, 2000

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