Federal Court Decisions

     Date: 19980819

Docket: IMM-4120-97

BETWEEN:

RAKESH KUMAR PATEL

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT

(Delivered from the Bench at Toronto, Ontario

on Tuesday, August 18, 1998)

HUGESSEN, J.:

[1]      This is an application to review and set aside a decision of a Visa Officer which awarded the applicant only sixty-two (62) units of assessment, eight (8) short of the seventy (70) units required. The applicant takes issue with the Visa Officer's assessment of three of the factors required to be assessed.

[2]      Firstly, with regard to education, the applicant claimed to have a University degree and to be entitled accordingly. The Visa Officer came to the conclusion that the documents submitted by the applicant in support not only of his claimed University degree but also in support of his claimed secondary education had been tampered with and were unreliable. That, in my opinion, is a conclusion which was open to the Visa Officer on the material before her. The further materials produced by the applicant in support of the present application for judicial review do nothing to demonstrate that she acted illegally or without jurisdiction in making the finding that she did.

[3]      Secondly, on the factor of language, the Visa Officer awarded six (6) units of assessment. She explains that she awarded only two of the possible three (3) units of assessment for his ability to speak English. She does not give any indication that she tested or assessed his ability to read and write that language. Counsel for the Minister concedes that in those circumstances the applicant was entitled to the full quota of three (3) units for each of reading and writing making a total of eight (8) units for language, that is to say two more than the Visa Officer allowed.

[4]      Thirdly, on the factor of personal suitability, the Visa Officer says this in part:

I was of the opinion that the applicant was trying to obtain a visa by dishonest means. In my opinion, this demonstrated a lack of adaptability, motivation, initiative and resourcefulness.

[5]      She went on to assign other considerations as well and concluded that the applicant was entitled to only two (2) units of assessment under the factor of personal suitability.

[6]      As I understand counsel's argument, he does not take issue with the relevance of dishonesty to the Visa Officer's assessment of the applicant's adaptability, motivation, initiative and resourcefulness. Rather, as I understand it, the argument is that the Visa Officer is guilty of what is sometimes referred to as "double counting". I disagree. Double counting takes place when a factor which is separately assessed, such as education or language or job prospects, is assessed a second time under the factor of personal suitability to the applicant's disadvantage. That is not what happened here. Dishonesty is not a factor which is assessed under the rubric of education. The fact that the Visa Officer found the applicant to be dishonest resulted in her assessing his education factor at zero, but that is an entirely different matter. Accordingly, I can see no basis for interfering with the Visa Officer's assessment of two (2) units under the factor of personal suitability.

[7]      The upshot is that there is an error in the Visa Officer's decision, but that such error is of a type and nature that it cannot affect the outcome of the decision that she reached.

[8]      Accordingly, the application for judicial review will be dismissed. I invite counsel to make submissions with respect to the certification of a question.

"James K. Hugessen"

Judge