Date: 19990816
Docket: IMM-5221-97
BETWEEN:
DAI SHUQING,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
ROULEAU J.
[1] This is an application under section 18.1 of the Federal Court Act for judicial review of the decision of Daniel A. Vaughan, Second Secretary at the Canadian Consulate General in Hong Kong (the "Visa Officer"), dated November 4, 1997, refusing the applicant"s application for permanent residence in Canada.
[2] The applicant is a pilot and airline captain for Air China with more than 18 years of experience. He submitted his Application for Permanent Residency in Canada on July 11,
1996, to the Canadian Consulate General in Hong Kong and was interviewed by Daniel A. Vaughan, the visa officer, on November 4, 1997. The visa officer awarded the applicant three points for "Personal Suitability". As a result he did not obtain a sufficient number of points to qualify for immigration to Canada. The visa officer did not assess the applicant under any other occupations for which he may be qualified and willing to undertake in Canada.
[3]
The applicant submits that the visa officer erred in awarding the applicant only three points for "Personal Suitability", and he alleges:
| (a) Did the visa officer fail to consider relevant evidence, consider irrelevant evidence and/or otherwise misconstrue the evidence and make erroneous findings of fact in reaching his decision? |
| (b) Did the visa officer breach his duty of fairness toward the applicant by not allowing him an opportunity to peruse and respond to the negative aspects of his application or in any other way? |
| (c) Did the visa officer err in his assessment of "Personal Suitability" by "double-penalizing" the applicant in so far as he took into account evidence, facts or criteria for which the applicant was already assessed under separate selection criteria? |
| (d) Did the visa officer make a decision with respect to the applicant"s "Personal Suitability" which is patently unreasonable? |
| (e) Did the visa officer err in not assessing the applicant under other occupations for which he is qualified? |
[4] The applicant submits that the visa officer in this case committed several errors in his assessment of the selection criteria set out in Schedule 1 of the Immigration Regulations. He alleges that the visa officer ignored relevant evidence, took irrelevant evidence and erroneous findings of fact into consideration, "double-penalized" the applicant under two separate selection criteria and failed to inform him of, or give him an opportunity to respond to, his negative concerns.
[5] He contends that when the visa officer drew a negative inference from the fact that the applicant"s contact with Canada was limited and had no strong ties to this country; he considered irrelevant information and his expectation was patently unreasonable. He adds that the visa officer failed in his duty in that he did not inform the applicant of his concerns that would affect him negatively, nor did he afford the applicant an opportunity to respond to this concern.
[6] He made an erroneous finding of fact when he determined that the applicant had limited knowledge of Canada since there is no indicator that the visa officer questioned the applicant about his knowledge of this country.
[7] He submits that the visa officer"s allocation for "Personal Suitability" was due in part to his obvious disapproval of the applicant"s method of job-search; that there is no evidence that the visa officer informed him that his failure to discuss provincial licencing requirements for pilots would affect him negatively in terms of his personal suitability, though he did draw a negative inference from it.
[8] The fact that he is only licenced to fly Boeing 737 jets is irrelevant; that the visa officer ignored his experience as a flying instructor.
[9] He also argues that the visa officer erred when he drew a negative inference from the fact that the applicant has a work history with only two employers over a long period of time; that it is unreasonable to draw a negative inference from the fact that his experiences with the Chinese Military and with the "state-owned" airline, ignoring the fact that he flies an international commercial airline and one could presume his familiarity with the commercial airline industry as a whole.
[10] The applicant submits that the visa officer failed to give his wife an adequate opportunity to demonstrate an ability to speak English, and assessed her negatively; that it was unfair to draw negative inference without giving the applicant"s wife an adequate opportunity to respond to this concern.
[11] The applicant also contends that the visa officer "double-penalized" him; he appeared to take into account the availability of jobs and the applicant"s marketability in the occupation of "Airline Captain", a consideration which is already accounted for in the selection criteria of "Occupational Demand".
[12] The applicant finally submits that he is well-qualified for several pilot-related occupations, that he is willing to undertake these occupations in Canada and that his qualifications for such positions are inherent to his experience; it was an error not to have assessed the applicant under alternate occupations.
[13] The respondent submits that the applicant has not established that the visa officer erred in his determination of the applicant"s Personal Suitability; his failure not to refer to all of the evidence is not fatal; that where a person seeks to come to Canada, the burden rests with the applicant.
[14] The respondent contends that it is relevant to consider the extent of knowledge or ties the applicant has with Canada in the context of assessing the initiative and resourcefulness necessary for successful establishment in Canada. He argues that the focus of the visa officer"s inquiry was on what inquiries the applicant had made regarding licensing requirements in Canada, as an indicator of initiative and resourcefulness. The visa officer determined that the applicant had limited knowledge of Canada, and, particularly, had no knowledge of licensing procedures in Canada and had not undertaken any research regarding employment prospects for pilots in Canada. The fact that the applicant"s counsel has now undertaken to research Canadian pilot licensing requirements on behalf of her client is immaterial.
[15] The visa officer, when considering personal suitability, may consider the applicant"s employment history in assessing his initiative and adaptability; there is no evidence that he failed to consider all the relevant factors in assessing the applicant"s claim. The number of points awarded is a matter of judgement for the visa officer and in the circumstances of this case, the applicant has failed to establish grounds upon which this discretionary decision could be quashed.
[16] The respondent submits that the visa officer advised the applicant at the conclusion of the interview of his assessment and that his application would be refused. Consequently, there was an opportunity to address the visa officer"s concerns at the interview; if the applicant had further evidence or information to provide to the visa officer in support of his application, the onus was on him to do so.
[17] The respondent argues that there is no evidence that the visa officer "double-penalized" the applicant by taking into account the availability of jobs and the applicant"s marketability in determining his award in the categories of Occupational Demand and Personal Suitability. He claims that a visa officer is not precluded from considering, from a different perspective, the subject matter dealt with elsewhere in Schedule 1 of the Immigration Regulations , when dealing with the issue of personal suitability.
[18] The respondent submits that the visa officer did not err by not assessing the applicant under other pilot-related occupations since he completed an assessment of the applicant"s listed intended occupation, Airline Captain. He adds, in the alternative, that the visa officer assessed the applicant under the occupation most advantageous to him.
[19] Both parties agree that to succeed in a review under section 18.1 of the Federal Court Act, the applicant must show that there was either an error in law on the part of the visa officer which is apparent on the face of the record, or a breach of the duty of fairness appropriate to this administrative assessment.
[20] It is trite law that the Court cannot substitute its own discretion for that of a visa officer. In Chiu Chee To v. M.E.I.1, the Federal Court of Appeal held that the court 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. According to the Court of Appeal, where the statutory discretion has been exercised in good faith and 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. In order for a court to intervene in such decisions, the applicant must demonstrate that the circumstances were so extraordinarily unusual as to justify the court"s intervention2.
[21] Hence, in light of the circumstances of this case, it seems that the applicant has not established that the visa officer exercised his discretion in bad faith, acted in an unreasonable matter, disregarded evidence that was before him or based his decision on irrelevant considerations. It appears the visa officer did his job to the best of his abilities, using his better judgement.
[22] The application is dismissed.
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Judge
Ottawa, Ontario
16 August 1999
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