Federal Court Decisions

Date: 20020523

Docket: IMM-3549-00

Neutral citation: 2002 FCT 591

BETWEEN:

                                                   SOHAIL AMIR ALI MERCHANT,

                                                                                                                                                      Applicant,

                                                                             - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                                                                                                                                  Respondent.

                                                            REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1]                 Sohail Amir Ali Merchant, an unmarried 31 year-old citizen of Pakistan brings this application for judicial review from the decision of an immigration officer of the Visa Section, Canadian High Commission in Islamabad, Pakistan refusing his application for permanent residence. Mr. Merchant seeks an Order quashing the decision of the visa officer and an Order directing the respondent to consider and process his application for permanent residence in Canada.

[2]                 The applicant is currently residing in Karachi, Pakistan. He has a Bachelor of Commerce degree from the University of Karachi and a M.B.A. in Finance and Accounting from Preston University, as well as certificates from various computer courses. He is currently employed as an Assistant Finance Manager and is fluent in English. His widowed mother, Rashida Merchant, who was originally accepted in Canada as a Convention Refugee in 1991, is now a Canadian citizen and lives in Canada. He has a younger brother in Pakistan who has also applied for permanent residence in Canada. Upon the applicant's landing in Canada, he intends to settle in Calgary, Alberta and work as a bookkeeper. He has previously made two applications for landing: in 1993, in Islamabad, he applied as a refugee and in 1997, in Colombo, he applied for an immigrant visa. Both were unsuccessful.

[3]                 The current application for permanent residence was filed with the Canadian High Commission in Islamabad on April 19, 1997. The applicant was interviewed at the High Commission on two occasions: March 1 and May 30, 2000. The first interview, conducted by a locally-engaged visa officer, yielded questions about whether the applicant's M.B.A. would be recognized in Canada and whether enough personal suitability points could be awarded in order for him to obtain the required minimum number of points (70). While the locally-engaged officer had authority to make a positive selection decision, subject to review by a Canada-based visa officer prior to final decision, she could not make a negative decision. The first interviewer requested a second interview be conducted by a senior visa officer.

[4]                 During the second interview, the visa officer concluded that the applicant was a "borderline case", and despite giving the applicant "as many points as possible", still allocated only 67 points, which was insufficient for him to qualify for landing. He was given 5 points for personal suitability, which was described as a "very fair assessment" by the visa officer. The applicant was also advised that Preston University was not recognized in Canada and that he should go back to school to upgrade his skills. He was then informed that his application had been refused and that a letter to that effect would be sent to him. The interviews are detailed in the Computer Assisted Immigration Processing System (CAIPS) notes. The refusal letter, which constitutes the decision under review in this proceeding, was sent on May 31, 2000.

[5]                 The applicant filed a Notice of Application for judicial review on July 6, 2000. The applicant complains that the visa officer failed to recognize his M.B.A. from Preston University and thus erred when she did not allocate to him the number of points commensurate with a graduate degree. The applicant further submits that the visa officer was unreasonable in her assessment of his personal suitability. For the reasons that follow, I find no error by the visa officer.

Educational Factor

[6]                 In her affidavit, the visa officer makes the following statement about the applicant's degree:

12.           With respect to the Applicant's degree from Preston, I advised him that we do not accept degrees from Preston University in Pakistan. I am advised by my colleague Allan Martin, a Foreign Service officer for the immigrant-processing unit in Islamabad, and verily believe it to be true that we haven't been recognizing degrees from Preston University because the university is not recognized by the University Grant Commission of Pakistan. This is the body which determines whether degree-granting institutions are recognized or not in Pakistan. Preston University began spreading news that they had been recognized in May 1999, but in October 1999 the University Grant Commission responded by publishing notices in the newspapers saying that Preston was still not recognized. For a few months, we were uncertain about this, however, since the University Grant Commission set the record straight in October 1999, we haven't been recognizing the degrees.

[7]                 Schedule 1 of the Immigration Regulations, 1978, SOR/78-172, states the following with regard to the allocation of points for post-secondary education (all emphasis mine):

"Designated institution" is defined in s. 2(1) of the Immigration Regulations, 1978, as follows:

"designated institution" means a secondary school, college, university, trade school or other institution that has been designated by the Minister, after consultation with the foreign government of the country in which the institution operates or with representatives of Canadian educational authorities, as an institution that does not conform to the educational standards or practices of the jurisdiction in which the institution operates;		« _établissement désigné_ » École secondaire, collège, université, école de métiers ou tout autre établissement que le ministre désigne, après consultation du gouvernement étranger du pays où ils opèrent ou les représentants des autorités scolaires canadiennes, parce qu'ils ne respectent pas les normes ou les pratiques applicables en matière d'éducation dans le territoire où ils opèrent.

[8]                 The applicant argued that the visa officer allocated the points on the basis of the statement of a third party, which, according to the applicant, is hearsay. In this regard, the applicant cited Valentinov v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 258 (T.D.), in which Gibson J. assigned no weight to an affidavit based on hearsay. Gibson J. also held that a visa officer committed a jurisdictional error by having a third party perform part of an assessment.

[9]                 Valentinov is distinguishable on its facts; in this case, the visa officer's assessment of the education factor was not based on hearsay. The visa officer was assigned to the Islamabad office only temporarily and, in seeking information from the third party, was looking for confirmation of her existing understanding that degrees from Preston University were not recognized. Rather than fettering her discretion or improperly delegating her responsibilities, the visa officer was being diligent. The visa officer did not decline jurisdiction, but merely acted within the constraints of the Immigration Regulations, 1978.

[10]            The applicant also complained that he was not informed that the visa officer had concerns about his degree. The applicant relied on Huang v. Canada (Minister of Citizenship and Immigration (1998), 41 Imm. L.R. (2d) 247 (F.C.T.D.), in which Heald D.J. granted an application for judicial review on the basis that the visa officer failed to inform an applicant of a concern regarding an academic qualification that arose after the interview, thus breaching the principles of procedural fairness.   

[11]            In this case, the CAIPS notes, the visa officer's affidavit and the applicant's affidavit all indicate that the visa officer informed the applicant during the interview that his M.B.A. would not be recognized. Whether the applicant was given an opportunity to respond is immaterial since there is no argument or evidence that the applicant could have submitted that would have untied the visa officer's hands: Preston University was a designated institution, therefore degrees from Preston University were not recognized and the applicant's M.B.A. could not be credited.

[12]            In Huang, the visa officer made a finding that an academic qualification had been improperly obtained. In this case, the officer made no such finding. Once it was established that Preston University was a "designated institution" as this term is defined under s. 2(1), the visa officer had no discretion to allocate the points normally associated with a Master's degree.

[13]            The applicant also submitted that the visa officer misinterpreted the relevant regulation and cites Patel v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 143, in which McKeown J. rejected a proposed definition of "other education institution" that was not found in the language of the Immigration Regulations, 1978:

[para 6] There is nothing in the phrase "other educational institution" which requires the institution to be under the control, management or supervision of any government authority. Surprisingly, the only case on point on this subject is the decision of the Board's Appeal Division in Chandiwal v. Minister of Citizenship and Immigration, T-95-044, September 17, 1997, where member Boire found that a person pursuing a course of Islamic Studies at Madrassa Talimuddin came within "other education institution". He refused to apply the words "recognized" and "not affiliated" to the words "other education institution". I am unable to find any requirements that "other educational institution" include words such as "authorized" or "approved by government". There are good and bad private educational institutions. The Visa Officer does not purport to decide if the one involved before him was good or bad. I do not have to decide if the quality of the institution met reasonable standards since the Visa Officer stated that his refusal was based solely on the institute being a private institute.

[para 7] I agree with the observation of Pierre André Côté in The Interpretation of Legislation in Canada as quoted by Justice Tremblay-Lamer in Chinubhai Madhavlal Patel v. The Minister of Citizenship and Immigration, IMM-829-98, October 5, 1998, at pages 10 and 11:

Since the judge's task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislator wanted to say ...

[para 8] I cannot read in the words sought by the Minister. Private institutions fall within the words "other educational institutions".

[14]            The applicant also argued that Haughton v. Canada (Minister of Citizenship and Immigration), 111 F.T.R. 226 was applicable by analogy. In Haughton, Rothstein J. (as he then was) held that a visa officer erred in applying criteria not specifically included in a regulatory scheme, in that case, job qualifications under the Canadian Classification and Dictionary of Occupations (CCDO).

[15]            Neither case is of assistance to the applicant. The Immigration Regulations, 1978 explicitly define which degrees can and cannot be credited for immigration purposes. This is not a circumstance that calls for statutory interpretation. In this regard, I adopt the reasoning of Evans J. (as he then was) in Dogra v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 264:

[para 21] To the extent that its language and structure permit, Schedule I should be interpreted in a manner that is consistent with its purpose: that is, the provision of objective criteria by which visa officers must decide whether an independent applicant will be able to become successfully established in Canada, which in this context means economically self-sufficient.

Since the visa officer could not, under the explicit language of Schedule I, have awarded the points claimed by the applicant, she did not err.

Personal Suitability

[16]            The applicant submitted that the visa officer erred when she awarded the applicant only five personal suitability points. In the CAIPS notes, the visa officer indicated that she gave the applicant 5 points and that this was a "fair assessment". In her affidavit, the visa officer elaborated on her reasoning for this assessment:

10.           I awarded the Applicant 5 points for personal suitability. When I asked the applicant questions about what he knew about Canada and the Canadian labour market and how he was planning to find work, the applicant was only able to demonstrate that he had a vague knowledge of Canada. He clearly stated that his main motivation to immigrate to Canada was because his mother lives there, that she lives near Waterton Park, she works in a hotel, and that she would help him. Mr. Merchant had not researched job prospects in Canada. He seemed totally dependent on his mother to assist him. He stated at the interview that he would obtain the assistance of the Islamic society, which finds jobs for people like him. I awarded the applicant five (5) units of assessment taking into account all of this as it relates to his adaptability, resourcefulness, motivation and initiative. This award would indicate average suitability, which I found was a fair assessment of this Applicant.

11.           After having made my assessment regarding personal suitability, I told the Applicant that I was awarding him 5 points and explained the reasons to him. ...

[17]            The applicant complained that, as only the CAIPS notes are contemporaneous, any explanation provided after the fact (such as the details found in the affidavit) has no merit. He also argued that it was open for the visa officer to perceive his dependence on his mother and the Islamic society as a positive, rather than negative, indication of his personal suitability. With regard to this latter point, the applicant claimed that he should therefore have been given an opportunity to respond to the visa officer's concerns: Lo v. Canada, 33 F.T.R. 156.    Failure to provide such an opportunity, the applicant contended, was a denial of fairness.

[18]            There exists no inconsistency between the CAIPS notes and the visa officer's affidavit and it is clear from the evidence that the issue of the applicant's mother and the potential assistance of the Islamic Society was discussed during the interview. The crux of the applicant's complaint is that he views the impact of these factors differently than the visa officer. In this respect, I adopt the comments of MacKay J. in Kompanets v. Canada (Minister of Citizenship and Immigration) (2000), 196 F.T.R. 61:

There is nothing in the record or in the argument raised on this application to lead to a conclusion that there was no reasonable basis for the visa officer to assess the applicant as he did. Reasonable people may disagree on the points awarded, but significant deference must be accorded to the visa officer's discretionary finding of fact.

[19]            The respondent noted several cases of this Court that belie a duty to inform an applicant of concerns at every stage of the assessment: Yu v. Canada (Minister of Employment and Immigration) (1990), 36 F.T.R. 296; Asghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091 (F.C.T.D.); Li v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 110.

[20]            Considering the jurisprudence cited by the respondent, and the deference that should be accorded to visa officers in the exercise of their discretion, I cannot find that the applicant was denied any fairness owed to him. Further, I conclude that the factors relied upon by the visa officer were relevant to the personal suitability of the applicant and the assessment was made on the basis of the evidence before the officer.

[21]            In his affidavit, the applicant deposed that the visa officer told him at the interview that "[y]ou must walk on water for getting more than 5 [points] ...".    The applicant noted in argument that this evidence is uncontradicted and has never been explained by the visa officer. The applicant therefore submitted that in the face of this evidence, and the failure of the visa officer to give adequate reasons for her assessment either in the CAIPS notes or in her letter of refusal dated May 31, 2000, the visa officer's assessment was unreasonable: Zheng v. Canada (2000), 5 Imm. L.R. (3d) 208 (F.C.T.D.). I disagree. There is no question that, on the evidence before me, the visa officer performed a reasonable, appropriate personal suitability assessment. Whether or not the statement was made is therefore immaterial and does not constitute reviewable error.

[22]            In the result, for the reasons given, the application for judicial review is dismissed.

[23]            Counsel did not suggest a serious question of general importance therefore no question is certified under section 83(1) of the Immigration Act.

____________________________________

      Judge

Ottawa, Ontario

May 23, 2002

                             FEDERAL COURT OF CANADA

                                          TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                        IMM-3549-00

STYLE OF CAUSE:                      Sohail Amir Ali Merchant v. MCI

PLACE OF HEARING:                 Toronto, Ontario

DATE OF HEARING:                   April 4, 2002

REASONS FOR ORDER OF      The Honourable Madam Justice Layden-Stevenson

DATED:                                           May 23, 2002

APPEARANCES:

Mr. Max ChaudharyFOR THE APPLICANT

Mr. Tamrat GebeyehuFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

Mr. Max ChaudharyFOR THE APPLICANT

Toronto, Ontario

Mr. Morris RosenbergFOR THE RESPONDENT

Deputy Attorney General of Canada