Date: 19990705
Docket: IMM-4258-98
BETWEEN:
JIYING YIN
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of Gregory Chubak, visa officer at the Canadian Consulate General in Hong Kong, dated April 30, 1998, wherein he refused the applicant's application for permanent residence.
[2] The applicant requests that his application for judicial review be allowed, that the visa officer's decision be quashed and that his application be reconsidered by another visa officer.
[3] The principal applicant, Jiying Yin, and his wife, are citizens of the People's Republic of China (RPC). They applied for landing in the independent worker category.
[4] The applicant applied as a mechanical engineer. The applicant's wife obtained her undergraduate and masters degrees, the latter in economics. She has worked as a statistician and as an economist.
[5] The applicant attended a selection interview on April 31, 1998. The main purpose of the interview was to look into his experience, language abilities and personal suitability. The following breakdown describes the units awarded the applicant out of the number of possible units of assessment under Schedule I to the Immigration Regulations:
| FACTOR UNIT AWARDED MAX UNITS |
| |
Arranged Employment 00 10 |
| |
Personal Suitability 03 10 |
[6] The applicant obtained 65 units of assessment, that is 5 units short of the 70 units required to qualify for admission as an independent immigrant.
[7] The issues raised in this application are the following:
| (1) Whether the visa officer erred in law by taking into account irrelevant considerations and by drawing perverse and unreasonable conclusions when assessing the applicant"s personal suitability; |
| (2) Whether the visa officer breached the duty of fairness in the consideration by failing to apprise the applicant of his concerns about his professional history; |
A third issue, the assessment of the applicant's language abilities, was raised in his memorandum but was not pursued, counsel being satisfied that the assessment could not be challenged.
1. The assessment of the applicant"s personal suitability
[8] Factor 9 of Schedule 1 to the Immigration Regulations reads as follows:
| Units of assessment shall be awarded on the basis of 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. |
|
[9] The applicant was awarded 3 units for personal suitability out of a possible 10 units. In his affidavit, Mr. Chubak explains his decision as follows:
| In response to the assertions at, inter alia, paragraph 7 of the Applicant's affidavit regarding the personal suitability assessment, the Applicant was questioned at length regarding his job strategy and preparation for settlement and labour market integration. The Applicant indicated that he had never been to Canada. He stated that it was his intention to go to Toronto and seek employment as an engineer. He said that he would rely on the internet and classified advertising for opportunities. I then asked the Applicant about the use of these media and how they might be the means to this end but he was unable to provide a response. The Applicant also stated that friends in Canada may assist. The Applicant was questioned regarding how he might seek employment if his friends were unable to obtain employment on his behalf. Noting that the Applicant had worked in an assigned capacity for the same State employer for his entire career, I felt that it was important that he display some motivation, adaptability, initiative, and resourcefulness. However, the Applicant indicated that he had no concrete job strategy and had done no research into the Canadian labour market or the requirements therein, including licensing requirements. I queried him further on how he might obtain employment in Canada to which he stated that he was confident of finding a job but had no particular leads nor had done any concrete research. The Applicant was asked if he had any contingency plans should he not be able to secure a position as foreseen. The Applicant's reply was that he had none. The Applicant's lack of concrete research into the Canadian labour market, and lack of contingency plans was indicative of a lack of such attributes as adaptability, initiative, motivation, resourcefulness, and other similar qualities and he was awarded three (3) units of assessment for personal suitability, per Schedule I of the Immigration Regulations. My notes taking at the interview are included in CAIPS. |
|
[10] Mr. Chubak's Computer Assisted Immigration Processing System (CAIPS) notes from the interview state:
| Personal Suitability - PI has never been to Canada. PI stated that it was his intention to go to Toronto and seek employment as a mechanical engineer. PI was questioned at length regarding his job strategy. PI provided several means by which he would seek employment including use of internet and newspaper classified. However, when asked secondary questions regarding how he might employ these means, he was unable to respond. PI stated that his friends in Canada might be able to assist. PI was questioned regarding how he might seek employment if his friends were unable to obtain employment on his behalf. Noting that PI had studied and worked for the same state employer for his entire career (in an assigned role/never having sought employment on open economy), it was imperative that he display some motivation, initiative and resourcefulness with respect to labour market entry in Canada. PI was unable to explain or articulate any concrete job strategy and had done little research into the Canadian labour market or the requirements therein, including licensing requirements. PI had no little [sic] of settlement issues and knowledge of Canada was entirely of an almanac variety, with PI reciting as though a mantra, that Canada was "a country with a glorious past made up of industrious and hard working people" without being able to relate this to factors which would affect settlement and labour market entry. PI was asked if he had any contingency plans should he not be able to secure a job as foreseen. Reply was reiteration of motivation for moving to Canada rather than to question. PI's lack of concrete research, a significant reliance on his friends in Canada, a scant understanding of, and lack of research into, the Canadian labour market, and lack of contingency plans is indicative of a lack of resourcefulness which would allow him to overcome a career in an assigned capacity in a statal academic environment in a communist system. PI was awarded 03 units of assessment for personal suitability per Schedule I of the Immigration Regulations. |
|
[11] The applicant first submits that the failure to research job possibilities is not a quality related to personal suitability and therefore is irrelevant. He cites B'Ghiel v. Canada (M.C.I.)1 in support of that proposition. In that case, the visa officer, in assessing the applicant"s personal suitability, noted that he failed to demonstrate that he would be able to obtain employment in his field in Canada. Hugessen J. held that this constituted a case of "double counting", as employment opportunities are considered under Factor 4 of Schedule 1 entitled "Occupational Factor".
[12] The B"Ghiel case is distinguishable from the matter at bar. The visa officer did not ask the applicant to show he was able to obtain employment in his field in Canada, but rather that he researched job possibilities. Personal suitability is a factor which allows the visa officer to form an opinion as to whether an applicant possesses the qualities required to establish him or herself in Canada on an economically independent basis2. Clearly, the extent to which an applicant researches job opportunities and the Canadian labour market is indicative of his or her motivation and initiative, and is a perfectly relevant consideration under the personal suitability factor.
[13] The applicant further submits that reliance on friends to help find a job is unrelated to personal suitability. The applicant points to several decision of this Court, including Zeng v. Canada (M.E.I.)3, Khalid v. Canada (M.C.I.)4 and B'Ghiel v. Canada (M.C.I.) (supra). In these cases, the visa officers considered whether the applicants had relatives in Canada when assessing their personal suitability. The Court intervened in all cases, on the basis that the presence of relatives or friends in Canada is not a personal quality similar to those listed in Factor 9, and that it constituted double-counting. Indeed, the presence and assistance of relatives in Canada is taken into account in other provisions of the Act and Regulations.
[14] Again, the present application is distinguishable from these cases. There is nothing in the record that suggests the fact that the presence of friends in Canada was used to assess the applicant"s personal suitability. At the interview, the applicant informed the visa officer that his Canadian friends may assist him to find a job. The officer then interrogated the applicant as to his job strategy in case his friends could not find employment on his behalf. Clearly, the visa officer meant to explore the applicant"s personal qualities, such as his initiative and resourcefulness in finding employment for himself in Canada.
[15] The applicant then argues that the visa officer was incorrect to draw a negative inference from the fact that he had never travelled to Canada. The applicant cited a number of cases for this proposition, none of which were on point. Moreover, there is no evidence that the visa officer took this into account in assessing his personal suitability. Rather, it seems he merely mentions this fact to indicate the context of the applicant's job search strategy.
[16] Next, the applicant submits that the conclusion that he had no job strategy is perverse and unreasonable given that he indicated he would use the Internet, classified newspaper ads and his friends to assist him. I disagree. A full reading of the visa officer"s notes reveals that the applicant was unable to answer secondary questions regarding how he might employ the newspaper ads and the Internet. He was unable to articulate any concrete job strategy and had done little research into the settlement issue and the Canadian labour market or the requirements therein. He had no contingency plan. In light of his information, the visa officer"s conclusion that the applicant lacked in initiative and resourcefulness is not unreasonable.
[17] The applicant also claimed the visa officer was wrong to assess the fact that he had worked in an assigned capacity for the same State employer for his entire career as a negative factor. It is argued that, since the nature of the applicant's employment and experience is assessed under other Factors, consideration under the personal suitability factor constitutes a form of double counting. This argument is without merit. First, the nature of an applicant"s professional experience is considered at Factor 4 - the Occupational Factor. Under this Factor, a visa officer assesses whether an applicant meets the requirement for a profession as set out in the National Occupational Classification. The fact that the applicant worked for a single employer is totally irrelevant to this assessment, and there is no evidence it was ever considered under that heading. The allegation of double-counting is groundless. As well, there is no evidence to suggest that this was seen as a negative factor in the personal suitability assessment. The visa officer noted that the applicant had never sought employment in an open economy. As a result, he felt it was important that the applicant demonstrate motivation, initiative, adaptability and resourcefulness. It is the lack of resourcefulness and initiative of the applicant in gaining knowledge of Canada"s labour market and employment opportunities that was construed negatively, not the fact that he worked for the same employer per se.
[18] Finally, it was mentioned by the visa officer that this applicant had not looked into licensing requirements. There is evidence on file that the applicant had made an enquiry to a Canadian engineering society. Apparently, he was told that his background was adequate and that he could qualify by taking the necessary examinations. While the visa officer"s finding was erroneous, I am nevertheless satisfied that the intervention of this Court is unwarranted. The applicant lacked the necessary qualities with respect to several other aspects of his application, and this element had little weight in the decision of the visa officer to award him only 3 units of assessment. Even if this error were to be corrected, the applicant would still not be awarded enough units of assessment to render meaningful an intervention of this Court.
2. The duty of fairness
[19] The applicant has worked for the same State employer for his entire career, and thus has never sought employment in an open economy. The visa officer felt it was important that he demonstrate motivation, initiative, adaptability and resourcefulness.
[20] The applicant submits that the visa officer breached the duty of fairness by failing to provide the applicant with an opportunity to address the officer"s concerns about his employment history. This was considered a negative factor by the officer which he had to overcome in his personal suitability assessment.
[21] It is established that, in some circumstances, a visa officer may be obliged to apprise an applicant of a potential negative assessment, permitting him or her to clarify his or her position. However, a visa officer does not have a duty to inform an applicant of each negative impression as they arise, particularly when the negative impression concerns some aspect of the application which is not amenable to change5.
[22] In the present case, nothing the applicant could say would change the fact he has never changed jobs or sought employment in an open market. As well, as mentioned before, the applicant"s professional history was not considered as a negative factor. For these reasons, this argument in unfounded, and the intervention of this Court is not justified.
[23] The application is dismissed.
JUDGE
OTTAWA, Ontario
July 5, 1999
__________________
1 (1998), 152 F.T.R. 103 (F.C.T.D.).
2 Amir v. Canada (M.C.I.) (1996), 125 F.T.R. 158 (F.C.T.D.).
3 (1991), 121 N.R. 252 (F.C.A.).
4 [1997] F.C.J. No. 1474 (F.C.T.D.).
5 Savin v. Canada (M.C.I.) (1995), 35 Imm.L.R. (2d) 122 (F.C.T.D.).
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