Date: 20001006
Docket: IMM-2429-99
BETWEEN:
NOOTAN NIKHIL DESAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN, J.:
[1] This is an application to set aside the March 4, 1999 decision of a visa officer at the Canadian Embassy in Cairo, Egypt, denying permanent residence to Nootan Nikhil Desai, a citizen of India. Ms. Desai applied for permanent residence under the independent category, asking to be assessed in the occupations of Financial Manager and Accountant. The applicant attended for an interview, which was conducted in English without the assistance of an interpreter.
[2] The application was refused on the basis that she did not obtain sufficient units of assessment in either occupation. The visa officer awarded her 64 units as a Financial Manager and 68 units as an Accountant.
[3] The applicant submits the visa officer erred in the assessment of her education. She maintains she should have been awarded 16 units of assessment for the Master Degree rather than the 13 units awarded by the visa officer.
[4] Documents submitted with the application indicate the applicant, following the completion of her secondary education, obtained Bachelor of Commerce and Master of Commerce degrees, each of which required one year of study. The visa officer awarded the applicant 13 units for education, since her one year Bachelor of Commerce degree did not meet the requirements of paragraph 1(d) of Schedule I of the Immigration Regulations. Schedule 1 provides 15 units of assessment are to be awarded for a first level university degree that requires three years of full time study. Since the applicant did not meet the requirement of a first level university degree, the visa officer did not award any units for the Master degree.
[5] This same issue was before the Court in Hameed v. M.C.I.1 In that case, Rothstein J. (as he then was) held: "...progression from 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) points 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...Therefore no error by the visa officer in awarding only thirteen (13) units for education." Rothstein J. concluded in Hameed, supra, that: "[t]he necessary implication is that an applicant's second or third level university degree for which he or she is 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"2.
[6] For the same reasons, I conclude that the visa officer did not err in awarding 13 units for the education factor.
[7] In addition, the applicant submits that the officer considered irrelevant factors when assessing personal suitability and relies on the following excerpt from the visa officer's affidavit:
| At her interview, I questioned her with regard to her motivation for wanting to emigrate to Canada, her previous travels outside India, if she had any relative or friends in Canada and whether she had tried to look them up or prepared herself in any way for a move to Canada. I awarded her five units of personal suitability as she was not articulate, had never travelled, did not show any signs of resourcefulness in preparation of the move and her motivation was purely economic and driven by the wish to make a better living. This was recorded in the first paragraph of my CAIPS notes.3 |
[8] In particular, the applicant argues the visa officer erred in drawing a negative rather than a positive inference from her interest in succeeding economically and that her conclusions were unreasonable.
[9] The officer's assessment was guided by Factor 9 of Schedule 1 of the Immigration Regulations, which states "[u]nits of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness, and other similar qualities."4
[10] In my view, the visa officer's comment concerning the applicant's motivation to come to Canada must be considered in the context of her concerns with respect to other factors such as resourcefulness and initiative. As stated in Gill v. M.C.I.5, as long as a personal assessment of suitability is reasonable and not arbitrary or capricious, there are no grounds to warrant judicial interference. In this instance, I am not persuaded that the visa officer's assessment of personal suitability is unreasonable.
[11] Finally, the applicant submits the visa officer's finding that she spoke English "well" rather than "fluently" was unreasonable. The visa officer found that the applicant was not articulate, her "freedom of expression and vocabulary were not elaborate", she spoke with a "marked accent", and had "different pronunciation". Counsel for the applicant takes issues with the visa officer's reference to the applicant not being articulate. He argues that "articulate" requires a level of sophistication in the use of language, which is not necessary for a person to be fluent. There is no merit to this argument. The Concise Oxford Dictionary (8th ed. 1990) defines articulate as "able to speak fluently and coherently". It describes very well the level of an individual's spoken language.
[12] For these reasons, the application for judicial review is dismissed.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
October 6, 2000
__________________
1 Hameed v. M.C.I. (1998), 153 F.T.R. 263, at 264, (1998), 44 Imm.L.R. (2d) 215.
2 Ibid. at 264.
3 Mona Z. Fahmy, Affidavit (Sworn 19 July 1999) Cairo, para. 7.
4 Immigration Regulations, SOR/79-197, s.5; SOR/85-1038, s. 8; SOR/93-44, ss. 24,25; SOR/93-412, SS. 17, 18; SOR/97-184, S.9; SOR/97-242, SS. 3-5.
5 Gill v. M.C.I. (1996), 34 Imm.L.R. (2d) 127.
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