Vandi V. Canada (Minister of Citizenship and Immigration), 2002 FCT 515

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2002 FCT 515

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Date: 20020506

Docket: IMM-4980-00

Neutral citation: 2002 FCT 515

BETWEEN:

ADOLFO VANDI

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

McKEOWN J.

[1] The applicant seeks judicial review of a decision of the visa officer dated August 22, 2000, in which the visa officer refused the applicant's application for permanent residence as an independent or skilled worker.

[2] The issue is whether the visa officer erred in not giving the applicant an opportunity to respond to her concerns.

[3] The applicant is a citizen of Argentina and Italy. He applied for permanent residence in Canada as an interior designer and was interviewed by the officer on March 9, 2000. The officer

awarded the applicant 70 units of assessment, but recommended a refusal of the application pursuant to paragraph 11(3)(b) of the Immigration Regulations. A senior immigration officer concurred in this recommendation. The visa officer stated in her refusal letter dated August 22, 2000:

You have not satisfied me that you possess motivation, initiative, resourcefulness and adaptability to financially provide for yourself and your family.

[4] The following are the relevant parts of the visa officer's refusal letter:

Although units of assessment are assigned for a relative in Canada, I have concern that there is minimal support from your sister in law. Three times you stated that you have to help her with the kids and take care of her house. When I pointed out that your wife accompanied you to Canada and could fulfill both those duties, you did not give me a respnse [sic]. When discussing your financial situation, you stated that originally the sister - in - law provided your family with room and board, but later you had to lend her money for her mortgage. I asked why and was told that your sister-in-law was having marital problems. No evidence was provided that your sister-in-law is gainfully employed. I have concern that your sister-in-law may need assistance and, therefore, wonder how she can be of assistance to you.

Notwithstanding the fact that you provided a job offer from The Ventin Group Ltd. Architects, I have concern that you will not take up this offer of employment. Motivation, and initiative and resourcefulness were not evident. I had the opportunity to interview you in July 1998 for a Student Authorization and again March 2000 for permanent residence. For the purpose of this interview, we discussed your activities in Canada since Dec/97, and you admitted that you only attended classes for several months, because "it was too hard to do F/T studies" and "it was hard to learn". (These are direct quotes from my interview notes, as transcribed during the interview). However you kept applying for extensions. The job offer as a designer provides an annual salary of $40,000, but indicates "will include a work load divided between Toronto and Argentina". If you found it difficult to attend ESL classes while taking care of the kids and your sister-in-law's house, how will you manage if your job requires you to travel 50% of the time? In reviewing your work history, I note that you have had 5 periods of unemployment in blocks of: 3 months, 7 months, 12 months, 15 months and 21 months! This does not include the period since Dec/97 when you arrived in Canada. Since becoming an adult, you are attempting to take up residence in a fourth country. It appears that you do not adapt well. At your interview, I inquired if you knew the licensing requirments [sic] for architects in Canada. You replied that you do, but that it would be too difficult to obtain. Difficult in what sense I wondered? Too much trouble? Is that why you chose to change your occupation from architect (as you described yourself at the Student Authorization interview) to Interior Designer for the permanent residence application?

[5] Since this is a paragraph 11(3)(b) decision, I must apply the law as set out in Sadeghi v. (Canada) Minister of Citizenship and Immigration [2000] 4 F.C. 337 (C.A.). Evans J.A. sets out the grounds at paragraphs 14, 15, 17 and 18. Evans J.A. states:

14 It is important to emphasize the particular context in which this question of procedural fairness arises. Paragraph 11(3)(b) is an extraordinary power intended for exceptional cases, and does not provide visa officers with a general discretion to revisit their assessment under the specific selection criteria or to support a view that the applicant does not in some way quite "measure up": see Chen, supra, [1991] 1 F.C. 350 (T.D.), at page 363. The important statutory purpose served by the requirement that independent applicants for permanent residence visas be assessed in accordance with the prescribed statutory selection criteria is to ensure a certain objectivity and uniformity in decision-making by visa officers.

15 Hence, in exercising the power conferred by paragraph 11(3)(b) the visa officer made a discretionary decision depriving the appellant of his legitimate expectation that, having satisfied the specific statutory selection criteria, most of which are geared towards assessing an applicant's prospects for becoming economically established in Canada, he would be issued with a visa, unless ...

The exception is not relevant in the matter before me since it relates to inadmissibility under subsection 19(1). Evans J.A. goes on:

17 In order to ensure that visa officers base their opinion that there are good reasons for thinking that the points evaluation does not adequately reflect an applicant's chances of becoming successfully established in Canada, it is important that they raise their concerns with the individual in a way that enables her or him to respond, at least when they are of the kind on which the applicant may be able to shed some useful light. Accurate decision-making is particularly important when an adverse decision may deprive a person of her legal rights or, as here, a legitimate expectation of receiving a statutory benefit.

18 The burden normally borne by visa applicants to put their "best foot forward" by placing before the visa officer all the information necessary to demonstrate that they satisfy the selection criteria reduces the obligation of visa officers to advise applicants, as a matter of procedural fairness, of whatever concerns they may have about the adequacy of the application. However, once an applicant has been awarded the units of assessment normally required for a visa by persons applying in the relevant category, it will often be unfair to expect the applicant to anticipate the grounds on which a visa officer may base a negative discretionary decision.

Thus the question is whether the applicant could have anticipated the grounds on which this visa officer based her negative discretionary decision.

[6] The first concern of the officer relates to the sister-in-law's ability to support the applicant. The officer stated in her refusal letter that there was no evidence that the sister-in-law was gainfully employed. She also noted that the applicant had lent her money for her mortgage. In fact there was evidence that the sister-in-law worked from her home sewing bathing suits. There was no indication from the visa officer that the sister-in-law's affidavit did not correctly set out her work situation. Furthermore, there was also evidence before the visa officer that the sister-in-law had repaid the loan for the mortgage in 1999, seven months before the interview. Accordingly, there were not adequate questions put to the applicant to ensure that he was aware of the visa officer's concern with the sister-in-law's financial status.

[7] I am satisfied that the visa officer did make a reasonable inference in saying that the proposed job offer from Ventin Group would mean that the applicant would be required to travel to Argentina 50% of the time or approximately that amount of time. However, I am not satisfied that the applicant was given an opportunity to explain how he could travel approximately half of his work time and be able to take care of the kids and the sister-in-law's house when he stated that going to ESL classes made it difficult to attend to these problems.

[8] I am satisfied that the visa officer was correct in setting out the five periods of unemployment since the statement that the applicant was not working was taken from his own application form. It is not up to the visa officer to look through the entire record to see if there

are other indications that the applicant was actually a student during part of the time of this unemployment.

[9] I am not satisfied that the visa officer laid the foundation for stating that the applicant lacked motivation because he told the visa officer that it was too difficult to meet the licensing requirements for architects in Canada. The visa officer herself, in her refusal letter, questions what the applicant means, but she fails to follow through on her concern and get more answers from the applicant. The questions that were posed by the visa officer related to the amount of interior design work that had been done by the applicant in pursuing the architectural licence, and were not strictly related to the motivation of the applicant as a reason for not pursuing this occupation in Canada.

[10] These errors of the officer cumulatively amount to reviewable error since the visa officer, in more than one area, did not allow the applicant an opportunity to respond to her concerns. Accordingly the decision of the visa officer is quashed. The matter is returned to be decided by a different visa officer.

[11] The application for judicial review is granted.

"W.P. McKeown"

J.F.C.C.

Toronto, Ontario

May 6, 2002

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-4980-00

STYLE OF CAUSE: ADOLFO VANDI

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

DATE OF HEARING: MONDAY, APRIL 29, 2002

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: MCKEOWN J.

DATED: MONDAY, MAY 6, 2002

APPEARANCES BY: Mr. Hart A. Kaminker

For the Applicant

Mr. Kevin Lunney

For the Respondent

SOLICITORS OF RECORD: Kranc & Associates

Barristers & Solicitors

425 University Avenue

Suite 500