Date: 19991213
Docket: IMM-6031-98
BETWEEN:
PRABHANAND YEDLA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J :
[1] This application for judicial review seeks an order quashing the decision of a visa officer, dated October 14, 1998, wherein the applicant"s application for permanent residence in Canada was refused. The interview with the visa officer was held in London, England, on October 7, 1998. In his letter to the applicant, the visa officer assessed the applicant as follows:
| Age 10 |
| Occupational Demand 03 |
| Specific Vocational Preparation/ |
| Education and Training Factor 15 |
| Experience 06 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 15 |
| English 06 |
| French 00 |
| Bonus (Close Relative in Canada) 00 |
| Personal Suitability 05 |
| TOTAL 68 |
[2] Thus, the applicant was short 2 units to reach the minimum of 70 points required to qualify for immigration to Canada.
[3] The two following paragraphs of the letter explain why the applicant was assessed 6 units for his english and 5 for personal suitability:
| At your immigration interview on 7 October 1998 I assessed your English language ability. I established that your ability to speak English was "well". To test your written English, I asked you to write for 5 minutes about your trip to the UK, which you agreed to do. You wrote a very simplistic and basic passage with several grammatical mistakes. To test your ability to read English, I asked you to read and summarize a text. You had some problem summarizing the passage. I established that you can write and read English "well" as indicated by you on your application form. |
| I awarded you an average score of 5 for "personal suitability", which takes account of factors such as motivation, adaptability, resourcefulness, initiative and other similar qualities. I took into account the fact that you acquired some general knowledge of Canada even though you did not know what a province was. However, you have made no effort to research the job market in Canada and have not contacted any Canadian accountant organizations to prepare for your move to Canada. This does not demonstrate a great deal of resourcefulness or initiative. |
[4] These are the two points under attack by the applicant in the instant judicial review.
[5] The applicant is a qualified chartered accountant who was born in India. English is his second language. In his own application form, he indicated that he spoke english "well" and not "fluent". By speaking to him, the visa officer determined that the applicant spoke english "well" but not "fluently". To test his ability to write in english, he asked the applicant to write for five minutes. The applicant produced a very simplistic and basic passage with some twelve grammatical errors. It is obvious from reading his short text that it is not very good english.
[6] As to his personal suitability, the visa officer stated in his affidavit that he considered the applicant's motivation, adaptability, resourcefulness, initiative and other similar qualities. He took into consideration the fact that the applicant had acquired some general knowledge of Canada but that he had made no effort to research the job market in this country and had not contacted any Canadian accounting organizations to facilitate his move here. In the visa officer's view, this did not demonstrate resourcefulness or initiative. He awarded him 5 points for personal suitability, an average score for that factor.
[7] The applicant submits that since he was merely short two points from the minimum of 70 points, the visa officer ought to have exercised the discretion vested in him under subsection 11(3) of the Immigration Regulations ("the Regulations") to accept the applicant's application, based on all the relevant circumstances. He claims that a global assessment of his educational and professional qualifications demonstrates that he would become successfully established in Canada.
[8] The Regulations do not provide for any specific form of application to request the visa officer to exercise his discretion under subsection 11(3). I presume that an applicant aware of the existence of subsection 11(3) of the Regulations would verbally ask the visa officer to exercise his discretion if he felt at the end of the interview that he may not be successful. But, an applicant is expected to put his best case forward and to relate to the visa officer all of the factors which would militate in his favour.
[9] In Lu v. Canada (Minister of Citizenship & Immigration)1, Evans J. of this Court, said that "Accordingly, since Mr. Lu did not make an application for the exercise of discretion, the visa officer did not err in law in failing to consider whether she should exercise it". Evans J. in his decision referred to a 1998 decision of Rothstein J. (now J.A.) in Lam v. Canada (Minister of Citizenship & Immigration)2:
| ...Where an applicant has reason to believe that he or she may be successfully established in Canada, irrespective of the units of assessment determination, he or she should apply for a determination under subsection 11(3) setting forth relevant reasons. Otherwise, while the visa officer may do so on his or her own volition, there is no obligation on the visa officer to exercise a discretion under subsection 11(3). As indicated, there was no application by the applicant for the exercise of discretion by the visa officer under subsection 11(3) in this case. |
[10] In any event, the visa officer in the instant case, did exercise his discretion under subsection 11(3) of the Regulations. He relates in his affidavit that he "did not recommend the application for use of positive discretion because I believed that the units of assessment accuratly reflected the applicant's ability to become successfully established in Canada. I indicated this in the CAIPS notes".
[11] It was open for the visa officer to make that decision on the facts of the case. I cannot find that he exercised his discretion in bad faith nor that he relied upon considerations which are irrelevant or extraneous to the statutory purposes of the Immigration Act. Consequently, this Court cannot intervene.
[12] The application is dismissed.
OTTAWA, Ontario
December 13, 1999
Judge
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