Jiwan v. Canada (Minister of Citizenship and Immigration), docket IMM-2533-96

Date: 19971124

Docket: IMM-2533-96

BETWEEN:

     ZAHARA JIWAN,

     Applicant,

     -and-

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

HEALD D.J.

[1]      This is an application for judicial review of the decision of a visa officer dated May 22, 1996 wherein the visa officer refused the applicant's application for permanent residence. In this application, the applicant challenges the visa officer's assessment with respect to the factors of education and personal suitability.

[2]      The applicant is a citizen of Tanzania. She applied for permanent residence in the independent/assisted relative category. Her intended occupation was as a dental hygienist. The applicant was awarded a total of 62 units of assessment. In that total, 10 units were awarded for education and 5 units were awarded for personal suitability.

ISSUE

[3]      Did the visa officer err in awarding 5 units for personal suitability and 10 units for education?

ANALYSIS

Personal Suitability

[4]      The Immigration Regulations outline the factors to be considered when assessing independent applications for permanent residence. Under Factor 9, personal suitability, it states:

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.

[5]      An assessment of this nature requires the visa officer to consider and have regard to the totality of the evidence adduced. The applicant bears the onus of demonstrating that she can establish herself in Canada. In the present case, the visa officer took into account that the applicant worked in two jobs and that she completed her "A" levels privately when she was not obligated to do so. In these circumstances, the visa officer awarded the applicant five units of assessment. It is settled jurisprudence that if a discretion of this nature has been exercised bona fide, was not influenced by irrelevant considerations and was not arbitrary, the Court is not entitled to interfere even if the Court would have exercised the discretion differently.

[6]      In cross-examination on his affidavit, the visa officer deposed that he found the applicant to be "an average applicant in terms of personal suitability"¹ and awarded her five units of assessment. The visa officer also deposed in cross-examination that he considered the factors set out in Factor 9, when assessing the applicant's personal suitability. He also said that he considered the totality of the evidence before him.²

[7]      On this record, I am not persuaded that the visa officer's assessment of the applicant's personal suitability should be altered in any way.

Education

[8]      The relevant provisions of the Immigration Regulations, 1978 that set out the units of assessment for education are as follows:

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

(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;

(c)      where a diploma or apprenticeship certificate that requires at least one year of full-time classroom study 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 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;3

[9]      The issue is whether the visa officer was correct in awarding the applicant 10 units of assessment under subparagraph (c)(i) or whether he should have awarded 13 units of assessment under subparagraph (c)(ii).

[10]      The applicant submits that the visa officer should have considered whether the applicant's "O" levels in Tanzania allowed her to enter university in Tanzania. The visa officer instead presumed that "O" levels in Tanzania were equivalent to grade 10 in Canada. The interview took place in Colombo, Sri Lanka. The applicant argues that because the applicant attended school outside of the visa officer's jurisdiction, and because the visa officer was uncertain about the educational credentials of the applicant, the visa officer should have requested assistance from the Canadian High Commission that has jurisdiction in Tanzania.

[11]      The respondent submits that the visa officer correctly assessed the applicant's education. The respondent argues that the visa officer looked at the prerequisite for dental college and determined that the applicant could and did enter dental college with a diploma from secondary school based on "O" levels. According to the respondent, the visa officer based his decision to award the applicant 10 units of assessment under subparagraph c(i) on his understanding that in Tanzania, "A" levels are needed to enter university. Under these circumstances, the applicant could not be awarded the 13 units of assessment under subparagraph c(ii) because an "O" level diploma is not a diploma that may lead to entrance to university within the meaning of subparagraph b(ii).

[12]      I agree with the applicant. It still cannot be said with certainty from the record whether in Tanzania, an "O" level diploma can lead to university. When faced with uncertainty, the visa officer should have made adequate inquiries to make this determination. Instead, the visa officer based his assessment on assumptions about the education system in Tanzania. The visa officer assumed that "O" levels are equivalent to grade 10 in Canada and that the Tanzanian system is identical to the British system. In his cross-examination, the visa officer stated:⁴

Q.      So the O-levels -- when you say O-levels are equivalent to grade 10, do you mean like grade 10 in Canada?

A.      Yes.

Q.      Oh, I see.

A.      Yes, to go on the university in Tanzania or most countries where they still have an O-levels and an A-levels system, to go on to university, you need the A-levels and that's -- that distinction is made in the points explanation in the APTN Regs.

Q.      Under schedule 1, I presume?

A.      Yes.

Q.      But do you have any particular evidence that O-levels in Tanzania don`t lead to university?

A.      Ahm.

Q.      Besides the fact that they are equivalent to grade 10 in Canada?

A.      Right, not beyond the fact that that's my understanding of the O-level and the A-level system in the country. I mean, it's based on the British system and in the other countries, in Sri Lanka and Pakistan, in the UK, where that system is the same, that is how it operates there.

[13]      The visa officer did not have any evidence before him about the education system in Tanzania. The visa officer, when faced with uncertainty, should have questioned the applicant or made inquiries to determine whether "O" levels may lead to university in Tanzania. This application for judicial review is allowed and the matter is referred to a different visa officer for rehearing and redetermination on a basis not inconsistent with these reasons for order.

CERTIFICATION

[14]      Neither counsel suggested certification of a serious question of general importance pursuant to section 83 of the Immigration Act. I agree with counsel that this is not a case for certification. Accordingly, no question is certified.

                             Darrel V. Heald                              Deputy Judge

OTTAWA, ONTARIO

November 24, 1997

__________________

     ¹      Applicant's application record at p. 49.

     ²      Applicant's application record at p. 47.

     ³      SOR/78-172, Schedule I, Column 1, Factors, Education, Column II.

     ⁴Applicant's application record at pp. 47-48.