Date: 20030109
Docket: IMM-1443-01
Neutral citation: 2003 FCT 13
Toronto, Ontario, Thursday, the 9th day of January, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
BIBI NERISSA SCHUVANA LALL
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Ms. Bibi Nerissa Schuvana Lall (the "Applicant") seeks judicial review of the decision of Visa Officer Sara Trillo (the "Visa Officer"). In her decision, dated February 5, 2001, the Visa Officer refused the Applicant's application for permanent residence in Canada.
FACTS
[2] The Applicant is a citizen of Guyana. She has resided for many years in New York City in the United States of America with her husband and daughter. The Applicant was employed for several years as a cook and housekeeper in a private residence.
[3] The Applicant completed a high school equivalency program in the United States and obtained a high school equivalency certificate in 1990. She also completed a course in sign language and a variety of courses in cooking and baking at Peter Kump's New York School of Cooking. Reference letters in the Tribunal Record from that school attest to her ability as an outstanding participant in the courses.
[4] The Applicant filed an application for permanent residence in Canada in January 2000 in which she sought admission under the "assisted relative" category. She indicated that her intended occupation in Canada was that of "Cook" listed in the National Occupation Classification ("NOC") as NOC 6242.
[5] The Applicant attended an interview on January 12, 2001. There, the Visa Officer informed her that she failed to qualify as a cook and she would be assessed in the occupation of "Baker", NOC 6252. The Visa Officer reviewed the Applicant's file and questioned her at the interview, and then advised she had concerns about the Applicant's ability to become successfully established in Canada.
[6] The Visa Officer refused the Applicant's application in a letter dated February 5, 2001. The refusal letter set out the total number of units awarded to the Applicant upon her assessment in the occupation of "Baker"; she was awarded 64 units of assessment. In her refusal letter, the Visa Officer advised that the Applicant had failed to show that she had performed a substantial number of the main duties, including the essential duties, as identified in the NOC.
[7] The Applicant had requested that, if necessary, the discretion provided by the Immigration Regulations, 1978, SOR/78-172, as amended (the "Regulations"), section 11(3) be exercised relative to her application. Following the negative decision made on February 5, 2001, the Visa Officer referred the Applicant's file to E. Anne Arnott, Senior Immigration Officer with the Canadian Consulate General in New York City.
[8] According to her affidavit filed in this proceeding, Ms. Arnott reviewed written submissions prepared by the Visa Officer requesting the exercise of positive discretion, together with the paper file concerning the Applicant and certain entries in the Computer Assisted Input Program System ("CAIPS") notes. The Senior Immigration Officer considered whether positive discretion should be exercised in favour of the Applicant and concluded that the Applicant's application did not warrant this exercise of positive discretion.
APPLICANT'S SUBMISSIONS
[9] The Applicant argues that the Visa Officer committed reviewable errors in the manner in which she assessed the factors of education and personal suitability, pursuant to the Regulations.
[10] The Applicant argues that the Visa Officer wrongfully awarded ten units for education. She submits that she should have received thirteen units for education pursuant to Schedule I, factor 1(1)(c)(ii) of the Regulations. According to the Applicant, she held a secondary school diploma, as represented by the high school equivalency diploma that she obtained in the United States. This diploma qualified her to seek admission to a post-secondary institution. She had enrolled in and completed at least one year of full-time classroom study, by her attendance at the Peter Kump Cooking School. As such, she had met the requirements of factor 1(1)(c)(ii) of Schedule I of the Regulations.
[11] Further, if the Visa Officer had concerns that the courses at the cooking school required possession of a secondary school diploma, then the duty of fairness required her to raise those concerns with the Applicant. Failure to do so constitutes a breach of the duty of fairness, according to the Applicant.
[12] The Applicant was awarded four units, out of a maximum of ten, for the factor of personal suitability. According to the Visa Officer, this assessment was largely based upon her findings that the Applicant lacked the necessary financial resources to successfully establish herself in Canada. The Applicant argues that the Visa Officer erred in reaching this conclusion because she wrongfully excluded consideration of the fact that the Applicant has a sister in Canada who was able to provide assistance, including financial help, in successful establishment in Canada.
RESPONDENT'S SUBMISSIONS
[13] The Respondent argues that, having responded to the positive obligation of a prospective immigrant to meet the requirements of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), as amended and the Regulations, the Visa Officer committed no reviewable errors.
[14] The Respondent submits that the conclusion of the Visa Officer in her assessment of the Applicant's education, in relation to the NOC occupation of "Baker", was reasonably supported by the evidence. The Applicant produced no evidence to show that her admission to the Peter Kump School of Cooking required her to hold a secondary school diploma. The Applicant bears the burden of showing that such a diploma was required and she failed to do so.
[15] As for the alleged error in assessing the personal suitability factor, the Respondent argues that such assessment involves the exercise of discretion by the Visa Officer and in the absence of evidence that such discretion was improperly or arbitrarily exercised, her decision will attract judicial deference.
[16] The record shows evidence to support the Visa Officer's conclusion about the insufficiency of funds and the assessment of personal suitability is reasonable. There is evidence, as well, according to the Respondent, that the Visa Officer did take into account the presence of the Applicant's sister in Canada when assessing the personal suitability factor.
ISSUE
[17] Did the Visa Officer commit a reviewable error in assessing the Applicant's education and personal suitability?
ANALYSIS
[18] The application for permanent residence giving rise to this application for judicial review was submitted in February 2000. At that time, the Act provided, in section 8, as follows:
| (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. (2) Every person seeking to come into Canada shall be presumed to be an immigrant until that person satisfies the immigration officer examining him or the adjudicator presiding at his inquiry that he is not an immigrant. |
|
(1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. (2) Quiconque cherche à entrer au Canada est présumé être immigrant tant qu'il n'a pas convaincu du contraire l'agent d'immigration qui l'interroge ou l'arbitre qui mène l'enquête. |
[19] The Applicant applied in the category of "assisted relative". Accordingly, she had to meet the applicable selection criteria set out in section 8 of the Regulations. That section refers to Schedule I. Schedule I sets out the factors upon which Applicants are awarded units of assessment and includes factors for education and personal suitability. For the purposes of this application, the relevant subsection of factor 1 "Education" provides as follows:
| 1. Education (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: ... (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 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 a 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; ... [Emphasis added] |
|
1. Études (1) Sous réserve des paragraphes (2) à (4), des points d'appréciation sont attribués selon le barème suivant_: ... b) lorsqu'un diplôme d'études secondaires a été obtenu, le plus élevé des nombres de points applicables suivants_: ... (ii) si le diplôme rend le titulaire admissible à des études universitaires dans le pays où il a été obtenu, 10 points, (iii) si le diplôme confère une qualification de membre d'un corps de métier ou d'un groupe professionnel dans le pays où il a été obtenu, 10 points; c) lorsqu'un diplôme ou un certificat d'apprentissage d'un collège, d'une école de métiers ou de tout autre établissement postsecondaire, qui comporte au moins un an d'études à temps plein en salle de cours, a été obtenu, le plus élevé des nombres de points applicables suivants_:
(i) si le programme d'études menant à un tel diplôme ou certificat exige un diplôme d'études secondaires visé aux sous-alinéas b)(i) ou (iii), 10 points,
(ii) si le programme d'études menant à un tel diplôme ou certificat exige un diplôme d'études secondaires visé au sous-alinéa b)(ii), 13 points; ... [je souligne] |
[20] The evidence in the Tribunal Record shows that the Applicant held a high school equivalency diploma which may lead to admission into a university in the United States. There is no dispute in this regard and the Applicant received ten units of assessment for education pursuant to 1(1)(b)(ii) of Schedule I. However, she argues that because she was enrolled in the cooking school on a full-time basis, she should have received thirteen units, pursuant to 1(1)(c)(ii) of Schedule I. In any event, she should have been given the opportunity to answer any questions that the Visa Officer may have had about her eligibility to obtain thirteen units for the education factor.
[21] I do not accept these submissions. In my opinion, the Applicant bore the onus of showing that her admission to the Peter Kump Cooking School met the requirements of section 1(1)(c)(ii). She did not do so. The Applicant relies on a general statement in an information booklet about the cooking school to support her argument, as follows:
We're the only culinary school in the United States that requires two years of college (or four years of work experience) for admission.
[22] In my opinion, this statement merely shows that the school had certain variable entrance requirements consisting of either two years of college education or four years of related work experience. It does not answer the question of whether the Applicant was required to have a secondary school diploma as a pre-condition for her enrollment.
[23] The Applicant has failed to show that the Visa Officer erred in her assessment of the education factor.
[24] Likewise, I am not persuaded that the Visa Officer erred in her assessment of the personal suitability factor having regard to the evidence on the record concerning the Applicant's financial stability. While I am not satisfied that the Visa Officer fully considered the potential assistance available from the Applicant's sister in assessing the personal suitability factor, I am satisfied that any error in that regard was immaterial to her ultimate conclusion. The record clearly shows that the Applicant had some potential to access funds from her husband and former employer but there is no documentary evidence of the actual availability of such funds to her.
[25] In these circumstances, I conclude that the decision of the Visa Officer is reasonably supported by the evidence which was before her. The application for judicial review is dismissed. There is no question for certification arising from this application.
ORDER
The application for judicial review is dismissed. There is no question for certification arising from this application.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1443-01
STYLE OF CAUSE: BIBI NERISSA SCHUVANA LALL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JANUARY 7, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: THURSDAY, JANUARY 9, 2003
APPEARANCES BY: Mr. Ravi Jain
For the Applicant
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD: Ravi Jain
Green & Spiegel
Barristers & Solicitors
390 Bay Street
Suite 2800
Toronto, Ontario
M5H 2Y2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030109
Docket: IMM-1443-01
BETWEEN:
BIBI NERISSA SCHUVANA LALL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER