Date: 19990811
Docket: IMM-3165-98
BETWEEN:
JENNIFER JURAWAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application for judicial review of the decision of Visa Officer Howard Spunt, of the Canadian Consulate General in Detroit, Michigan dated May 26, 1998, and received May 27, 1998, wherein he refused the application of Jennifer Jurawan (the applicant) for permanent residence.
FACTS
[2] The applicant is a citizen of the United States of America. She applied for permanent residence as a Secretary - CCDO 4111-110.
[3] She attended an interview on September 25, 1997, at which time she submitted her education documents and employment references, along with proof that her sister-in-law lives in Canada.
[4] She was assessed under the CCDO as both a Secretary and an Executive Secretary. Her highest assessment was as Secretary:
| Age 10 |
| Occupational Factor 05 |
| Specific Vocational Preparation 11 |
| Experience 06 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 00 |
| English 09 |
| French 00 |
| Personal Suitability 02 |
| Total 51 |
[5] She was also assessed under the National Occupational Classification, but received only 41 units of assessment.
[6] As a result, her application was refused under subsection 19(2) of the Immigration Act.
ISSUES
[7] Did the Visa Officer ignore evidence or fail to consider the evidence that was before him?
[8] Is the Visa Officer"s assessment of the applicant"s personal suitability patently unreasonable, based on the evidence?
[9] Did the Visa Officer err in not awarding 5 "bonus" points, based on the fact that the applicant"s sister-in-law lives in Canada?
POSITIONS OF THE PARTIES
The Applicant
[10] The applicant contends that the Visa Officer failed to notify her of his concerns regarding her education. She has completed a full secretarial diploma course with secondary certification as a secretary and a letter confirming this fact is attached to her affidavit.
[11] The applicant also submits that the Visa Officer"s assessment of her personal suitability is patently unreasonable. She is fluent in English, has extensive experience as a secretary and was taking a computer course to upgrade her skills. In addition, she has a job offer and relatives in Canada.
[12] Finally, the applicant argues that the Visa Officer erred in law when he omitted to award her 5 "bonus" points under the Assisted Relative category, based on the fact that her sister-in-law lives in Canada.
The Respondent
[13] The respondent submits that the letter confirming her secretarial diploma was submitted after the Visa Officer"s decision was made and, thus, cannot be referred to in this judicial review. The respondent further contends that none of the documents submitted by the applicant, prior to the Visa Officer"s decision, confirms that the applicant has actually received a diploma or other certification as a secretary.
[14] The respondent also submits that an assessment of personal suitability is within the discretion of the Visa Officer and must not be interfered with in the absence of bad faith or patently unreasonable error. The respondent points to the fact that the applicant had not kept pace with technological advances, lacked even basic familiarity with current computer programs, had no knowledge of details surrounding the purported job offer and her husband appeared unskilled. In such a case, the Visa Officer was entitled to award 2 units of assessment for personal suitability.
[15] Finally, the respondent submits that the definition of Assisted Relative in the Immigration Regulations, section 2, does not include sister-in-law. Therefore, the Visa Officer was correct in not awarding the 5 point bonus to the applicant.
ANALYSIS
[16] Although no affidavit was submitted by the Visa Officer, the CAIPS notes included in the respondent"s Record clearly indicate that the applicant has taken many courses to improve her office skills, but was not awarded a diploma or certificate by the college she attended. This observation is supported by the Tribunal Record.
[17] The applicant has submitted, as Exhibit "C", a letter from the College of Commerce dated 20 June 1998, which states that she successfully completed a full secretarial diploma course with secondary certification as a "Secretary". The Visa Officer"s decision is dated May 26, 1998.
[18] It is indeed trite law that judicial review may only be sought based on the information before the federal board, commission or other tribunal, at the time the challenged decision was made. Therefore, I will not consider the effect of Exhibit "C" as it was not before the Visa Officer at the time his decision was made.
[19] Furthermore, since there is no other evidence that the applicant received a diploma or certificate and given the Criteria listed in Schedule I, I find the Visa Officer"s assessment of "0" units for Education to be reasonable.
[20] In her submissions, the applicant has placed considerable emphasis on the case of Muliadi v. M.C.I., [1986] 2 F.C. 205 (C.A.) as authority for the proposition that a visa officer must provide the applicant with the opportunity to address any concerns he or she may have with respect to the application.
[21] The case of Muliadi is distinguishable from the present case. In Muliadi, the visa officer rejected the application based on a negative assessment of the applicant"s business, submitted by the Ontario government. The applicant was not informed of the negative assessment nor was he given the opportunity to respond to its contents.
[22] In my opinion, the appropriate case law is that of Shah v. M.E.I. (1994), 29 Imm. L.R. (2d) 82 (F.C.A.), cited in the context of a visa officer in Bara v. M.E.I. (6 July 1998), IMM-3286-97 (F.C.T.D.). In Shah, supra, the Federal Court of Appeal states:
| The officer is not required to put before the applicant any tentative conclusions he may be drawing from the material before him, not even as to apparent contradictions that concern him. However, if he relies on extrinsic evidence, not brought forward by the applicant, he must give him a chance to respond to the evidence. |
[23] In the present case, the Visa Officer made the decision on the evidence put before him by the applicant. There was no extrinsic evidence and the Visa Officer was not required to put any tentative conclusions or concerns before the applicant.
[24] The applicant"s second submission is that the Visa Officer"s assessment of her personal suitability was patently unreasonable.
[25] In Gill v. Canada (MCI)1 Jerome A.C.J. (as he then was) described the broad discretion conferred on the visa officer to determine the personal suitability of the applicant:
| The legislative provisions confer a broad discretion on a visa officer in making a determination of this nature and it is entirely within his jurisdiction to form an opinion concerning an applicant's personal suitability based on factors such as adaptability, motivation, initiative, resourcefulness and other qualities. Provided that opinion is reasonable and is neither arbitrary or capricious, there are no grounds to warrant judicial interference. |
[26] In the present case, the CAIPS notes indicate that she had "considerable experience as a secretary" but that she had not kept her training up to date. She lacked even basic familiarity with current computer programs. Although she had an employment offer, the letter is unsigned and the Visa Officer was of the opinion that the letter was one of convenience.
[27] The applicant submits that she speaks English and has considerable experience as a secretary. Nonetheless, I am not prepared to find that, on the record before him, the Visa Officer"s assessment was either arbitrary or capricious. Although it would have been preferable to have an affidavit from the Visa Officer, I find the decision to award 2 units for personal suitability was reasonable.
[28] Finally, the applicant argues that the Visa Officer erred in law by failing to include a 5 point "bonus", based on the fact that her sister-in-law lives in Canada.
[29] As indicated by the respondent, the term "assisted relative" does not include "sister-in-law". Section 2 of the Immigration Regulations, 1978 (S.O.R./78-172, as am.) reads as follows:
| "assisted relative" means a relative, other than a member of the family class, who is an immigrant and is an uncle or aunt, a brother or sister, a son or daughter, a nephew or niece or a grandson or granddaughter of a Canadian citizen or permanent resident who is at least 19 years of age and who resides in Canada; |
"parent aidé" Immigrant, autre qu'un parent, qui est soit l'oncle ou la tante, le frère ou la soeur, le fils ou la fille, le neveu ou la nièce ou le petit-fils ou la petite-fille d'un citoyen canadien ou d'un résident permanent âgé d'au moins 19 ans qui réside au Canada. |
| [30] While "sister" is defined in the same section as: |
"sister", with respect to any person, means a daughter of the
mother or father of that person;
"soeur", par rapport à une personne, désigne une fille de la mère ou du père de cette personne
[31] In my opinion, this definition does not include "sister-in-law". Therefore, given that the only relative indicated by the applicant as living in Canada was her sister-in-law, the Visa Officer was correct in not awarding the assisted relative bonus.
CONCLUSION
[32] For all the foregoing reasons, the application for judicial review is dismissed.
[33] No question was submitted for certification.
"Max M. Teitelbaum"
________________________________
J.F.C.C.
Ottawa, Ontario
August 11, 1999
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