Date: 19980121
Docket: IMM-1031-97
BETWEEN:
ABDUL HAMEED NAVIWALA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JOYAL, J.
[1] This is an application to quash a Visa Officer's decision refusing an application for permanent residence in Canada.
[2] The errors in that decision, as alleged by the applicant, may be summarized as follows:
| 1. the Visa Officer double counted the applicant's work experience when assessing his personal suitability; |
| 2. the Visa Officer failed to take into account the job offer made to the applicant when assessing his personal suitability; |
| 3. the Visa Officer took into account an irrelevant consideration when assessing the applicant's personal suitability, namely his credibility; |
| 4. the applicant was not apprised of the Visa Officer's concerns about his personal suitability. |
[3] Of all the foregoing grounds, the one which seems to have warranted a certain amount of judicial attention is the "double-counting" of the nine factors or units of assessment as listed in Schedule I of the Immigration Regulations and which a Visa Officer must rate in the course of the process to determine if an applicant may be granted permanent entry. These factors are: Education, Specific Vocational Preparation, Experience, Occupational Demand, Arranged Employment or Designated Occupation, Demographic Factor, Age, Knowledge of English or French, and finally, Personal Suitability.
[4] It has been said1 that the fixed assessment formula precludes a Visa Officer from applying the same assessment data to more than one factor among the several factors listed in the Schedule. For example, a difficulty in communicating in either of the official languages cannot be considered again when dealing with another factor, otherwise it constitutes a reviewable error.
[5] In the case at bar, I should conclude that the Visa Officer did not commit such an error. Although one might notice a number of artful ambiguities in the decision, it is my view that the Visa Officer did not consider the applicant's "work experience" in assessing "personal suitability". It is clear, in my respectful view, that the Visa Officer was somewhat concerned about the seeming insouciance of the applicant in response to some obvious discrepancies in his story, leading the former to conclude that a lack of motivation or initiative might be pertinent grounds under the "personal suitability" factor.
[6] Although it is not easy to read the Visa Officer's mind, except through the findings expressed in his decision, a Court, on judicial review, must recognize that the factors as listed in Schedule I comprise fairly soft words, giving rise to any number of different concepts which may be approached from more than one perspective. The decision of my colleague Simpson J. in Stefan v. M.C.I.2 is supportive of a more generous interpretation of Visa Officers' assessments and recognizes that the language of Schedule I should not be subjected to a constructionist approach.
[7] One must always keep in mind the gentle reminder of the Associate Chief Justice in the Lin case (supra), where he stated:
| This is not an appellate review. It is an application for exceptional relief by way of certiorari and mandamus. To succeed, the applicant must do more than persuade me that I might have reached a different conclusion from the assessment. He must satisfy me that as a result of an error in interpretation of the statute, the Visa Officer failed to carry out the assessment that was required of him or, in the alternative, in carrying out such an assessment, he failed in the duty of fairness to the applicant. |
[8] One must also keep in mind that the process before the Visa Officer is not an adversarial one and that the burden is on the applicant to prove to the Visa Officer that the applicant is entitled to admission to Canada.
[9] Counsel for the applicant raises other issues in order to satisfy this Court that judicial review is justified. These relate to the manner in which the Visa Officer treated the employment offer filed by the applicant. They relate also the his consideration of the factor of the applicant's "personal suitability", and his failure to inform the applicant of his concerns in that regard. In my respectful view, none of these issues are sufficiently material or important to affect substantively the Visa Officer's assessment. Nor does it constitute a reviewable error for the Visa Officer to draw conclusions or inferences from the applicant's demeanour in the course of his examination. This Court is not in a position to substitute its own judgment to that of the Visa Officer.
[10] In the circumstances, I should dismiss the application. A certified question would not be appropriate.
L-Marcel Joyal
J U D G E
O T T A W A, Ontario
January 21, 1998.
__________________1 See Zeng v. Canada (M.E.I.) , 12 Imm.L.R. (2d) 167; Lin v. Canada (M.C.I.), Court file IMM-1335-95 (T.D.), Judgment dated 15 February 1996; and Ho v. Canada (M.E.I.), Court file IMM-1802-94, Judgment dated 6 December 1994.