Date: 19990527
Docket: IMM-1346-98
BETWEEN:
GANESH MAHARAJ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
A. The Facts
[1] Ganesh Maharaj (the applicant) applies for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 (as amended) for an order quashing the decision dated February 25, 1998 by Halina Roznawski (Immigration officer) rejecting his application for permanent residence in Canada in the independent category of Production Co-ordinator.
[2] The applicant was born in Trinidad. Since 1993, he has been working in the United States as a Production Co-ordinator with Acrylics Plus Inc. He is married and has three sons: two born in Trinidad, West Indies, and one born in the United States. He completed 5 years of high school and completed a two year course in business management at John S. Donaldson Technical Institute in 1978.
[3] He filed an application for permanent residence on April 27, 1997 and was interviewed in Detroit on February 23, 1998.
[4] His application for permanent residence indicates over the last ten years Mr. Maharaj was employed:
| (1) From 1 Jan. 93 to date as a Production Co-ordinator with Acrylics Plus Inc. in Florida U.S.A.; |
| (2) From September 91 to 1 Jan. 93 as a manager with Mobil of Coral Springs; |
| (3) From April 1989 to Sept. of 91 as a customer service representative with Apsco Products Limited in Agincourt, Ontario; and |
| (4) From Sept. 88 to March 93 as a branch manager with Trinidad Insurance Services in the West Indies. |
[5] His application for permanent residence was supported by two letters from his Canadian employer attesting to his promotion within the company from general warehouse help to customer service representative, to his ambition and hard work to his being reliable, conscientious, considerate, courteous and trustworthy. He has a similar letter from his current employer which in addition spells out his duties as a Production Co-ordinator.
[6] His application for permanent residence also mentions the ownership of a home in Florida with mortgage, a bank account and other assets.
[7] While in Canada in 1989 to 1991 his wife worked as a medical secretary at Danforth Medical Centre in Toronto. By letter dated February 18, 1998, Danforth Medical Centre offers her employment as a medical secretary should she return to Canada.
[8] The applicant's coming and leaving Canada between 1989 and 1991 requires comment. The applicant and his immediate family came to Canada in 1989 and applied for refugee status which was denied. They left Canada voluntarily and entered the United States on passports which did not belong to them. He and his family were granted entry residing in the U.S. without status. He did not advise the Canadian government of the family's departure in 1991 which may complicate his entry into Canada because of the Exclusion Order against him and his family.
The Immigration officer's decision
[9] The Immigration officer's refusal letter is dated February 25, 1998. The following assessment was made in the requirements for the occupation of Production Co-ordinator.
Age: 10
Occupational Demand: 01
Specific Vocational Preparation: 15
Experience: 06
Arranged employment: 0
Demographic factor: 08
Education: 10
English: 09
French: 0
Personal suitability: 03
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62
A total of 70 units was required. In addition, the applicant was not awarded 5 bonus points on account of a relative being in Canada because in the Immigration officer's words "that relationship could not be established".
[10] In terms of personal suitability the decision said this:
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You have not proven to me that you possess any motivation or initiative to be successfully established. You admitted that your father transferred $9975 into your bank account one month before interview and that he paid for your immigration processing. Without the transfer, your assets would be low for a family of four. You admitted that you and your family entered the U.S.A. with passports that did not belong to you. This implies a lack of respect for immigration law and undermines your credibility. For these reasons, I could not award you more than 3 points for personal suitability. |
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[11] The Tribunal record contains the Immigration officer's Computer Assisted Information Processing System (CAIPS) notes which records from her perspective what transpired at the interview. I have reviewed these notes and am satisfied that what was recorded in her CAIPS notes are consistent with the reasons she expressed in her refusal letter.
The issues
[12] The focus of the applicant's attack on the refusal decision relate to the assessment on personal suitability. Here, it is said the assessment is tainted by an irrelevant consideration - the applicant's status in the U.S. as well as being unreasonable. There is also a challenge on the refusal to award 0 bonus points for a relative in Canada - his sister-in-law who is a Canadian citizen. There is an allegation of double counting and an allegation of an unlawful exercise of discretion under section 11(3) of the Immigration Regulations.
Analysis
A) Standard of review
[13] The applicable standard of review in this case was established by the Federal Court of Appeal in Chiu Chee To v. Canada, May 22, 1996, A-172-93, which adopted the standard set out by the Supreme Court of Canada in Maple Lodge Farms Limited v. Canada, 1982 2 S.C.R. 2 at pages 7-8, where McIntyre J. stated:
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It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
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[14] (a) Personal suitability:
(i) irrelevant consideration
The Immigration Regulations provide the following criteria for the assessment of personal suitability, the maximum number of units being 10.
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Units 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. |
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[15] The overall perspective to the selection régime was authoritatively determined by Strayer J., as he then was, in Chen v. Canada approved by the Supreme Court of Canada, (1995) 1 S.C.R. 725. Speaking to the factors established in Schedule I to the Regulations (the selection standards), Mr. Justice Strayer said they "appear to be essentially related to the ability of an immigrant to make a living in Canada or to be economically sustained other than by the State."
[16] Specifically addressing the personal suitability factor he said this:
| |
These enumerated criteria of personal suitability, while not wholly irrelevant to social success, seem primarily related to the ability to support oneself. The term other similar qualities should I think be read ejusdem generis with the enumerated criteria which precede it. |
|
Mr. Justice Strayer concluded the focus of the selection criteria was on economic factors and did not import non-economic reasons that the immigration does not have a good chance of being successful in Canada including such reasons as that an immigrant will probably not be a good neighbour, a good person, or ultimately a good citizen or that the immigrant is a bad or immoral person if judged by his past conduct.
[17] Immigration officers have in the past taken account or have been influenced by an applicant for permanent residence being illegally in the country where they were residing at the time the application was made. This Court has held that such a consideration was irrelevant and set aside the decision on that account (see B'ghiel v. Canada, IMM-2545-97, July 8, 1998, Hugessen J., and Mui v. Canada, IMM-1079-97, March 20, 1998, Reed J.).
[18] It is beyond doubt, in my view, the Immigration officer in this case took into account and was substantially affected by Mr. Maharaj's illegal entry and stay in the United States in determining his personal suitability factor. Her decision on this point cannot stand and must be set aside.
(ii) reasonableness
[19] Counsel for the applicant argued I should set aside the Immigration officer's assessment on personal suitability because that assessment misconstrued or ignored relevant evidence.
[20] Jerome A.C.J. in Gill v. Canada, 34 Imm. L.R. (2d) 127, said that
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the legislative provisions confer a broad discretion on a visa officer in making a determination of this nature and it is entirely within his jurisdiction to form an opinion concerning the applicant's personal suitability based on factors such as adaptability, motivation, initiative, resourcefulness and other qualities. Provided the opinion is reasonable and is neither arbitrary or capricious there are no grounds for interference. |
|
I find upon a review of the evidence the Immigration officer did not take into account all of the factors encompassed in the personal suitability factor. She ignored the factors of adaptability and resourcefulness and other similar qualities as well as Mrs. Maharaj's employment offer as indicia of likelihood of successfully establishing themselves in Canada. In addition, while not going in to details, it appears to me that there were numerous loose ends to tie up in order to have a true picture of the applicant's net worth.
(iii) Double counting
[21] Double counting is not acceptable. The Immigration officer in her affidavit at paragraph 8 considers the low demand for his occupation as evidence that he may have difficulty supporting his family. In B'ghiel, supra, Hugessen J. held as a clear case of double counting a visa officer's mention of the applicant's failure to demonstrate he would be able to obtain employment in his field in Canada (see also Mou v. Canada, IMM-201-96, January 24, 1997, Lutfy J. and Barua v. Canada, IMM-3152-97, October 22, 1998, Evans J.).
(b) Assisted Relative
[22] The issue here is the identity of Mr. Maharaj's sister-in-law who is a Canadian citizen resident in Toronto. The Immigration officer was concerned on this point and at the interview said will not award points until "I have other evidence". In her refusal letter the Immigration officer said this:
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However, that relationship could not be established and bonus points were not awarded. Furthermore, I do not believe you can count on this family to assist you because they did not provide you assistance when you were last in Canada. |
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[23] The Immigration officer's CAIPS notes and her reply to the applicant's solicitors' inquiry after the interview said "even if relationship established would still not score 70 to pass."
[24] In the light of these reasons, the Immigration officer's determination on this point is set aside. This point must be reconsidered.
(c) Section 11(3) of the Regulations
[25] This section of the Immigration Regulations was considered by Mr. Justice Strayer in Chen, supra. The Immigration officer's lack of exercise of discretion was distorted by her consideration of the applicant's illegal entry into the United States and must be set aside.
Conclusion
[26] For all of these reasons, the judicial review application is granted, the decision of the Immigration officer, dated February 25, 1998 is quashed and the applicant's application for permanent residence dated April 21, 1997 is referred for reconsideration as soon as possible by a different immigration officer.
[27] There is no certified question under section 83 of the Immigration Act (see Yuen v. Canada, A-916-97, May 15, 1998, F.C.A.).
"François Lemieux"
Judge
TORONTO, ONTARIO
May 27, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: GANESH MAHARAJ |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: WEDNESDAY, MAY 26, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: LEMIEUX J. |
DATED: THURSDAY, MAY 27, 1999
APPEARANCES: Ms. Robin Seligman
For the Applicant
Mr. Jeremiah Eastman
For the Respondent
SOLICITORS OF RECORD: Robin L. Seligman
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990527
Docket: IMM-1346-98
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
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