Date: 20020109
Docket: IMM-5481-00
Neutral citation: 2002 FCT 27
BETWEEN:
JASBIR KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
ROULEAU J.
[1] This application is for judicial review under subsection 82.1(2) of the Immigration Act and section 21 of the Federal Court Act, in respect of a decision of Canadian Visa Officer Peter Roumbos of the Canadian High Commission, in New Delhi, India (the "Visa Officer"), dated June 29, 2000, denying the Applicant's application for permanent resident status in Canada on the grounds that the Applicant failed to obtain at least 65 units of assessment, the minimum number required to comply with the selection criteria for immigration to Canada pursuant to s. 10(1)(b) of the Immigration Regulations, 1978 (the "Regulations").
[2] Sufficient humanitarian and compassionate grounds did not exist to warrant special relief on her behalf. This ground though submitted in writing was not argued; I am nevertheless satisfied that no leave was obtained to submit an argument on this aspect. In light of the Court of Appeal decision in Rajadurai v. Canada (MCI) (2000), 11 Imm. L.R. (3d) 1 (F.C.A.), none would have been entertained.
[3] The Applicant is a widow looking after a 15-year old son and resides in Punjab, India where she works as a cook.
[4] Subsequently to the death of her husband, the Applicant has lived alone with her child and began to experience great hardship. She has no relatives in India to turn to for help and both of her husband's parents are also deceased.
[5] With her brother's help, the Applicant took training as a cook in a three-year apprenticeship programme which she successfully completed.
[6] Her brother has incorporated a company in Canada which could conceivably operate a restaurant upon her arrival in Canada and where she would serve as the main cook.
[7] The Visa Officer interviewed the Applicant on May 24, 2000 and made contemporaneous notes of the interview of the Applicant in the Computer Assisted Immigration Processing System ("CAIPS"). He assessed her Application with respect to the factors outlined in Schedule I to the Regulations. In the CAIPS notes, the Visa Officer outlined his reasons for refusing the Applicant's Application. The reasons were set out briefly in the refusal letter dated June 29, 2000, which was sent to the Applicant's Counsel.
[8] The Visa Officer first questioned the Applicant as to the language she wanted to use at the interview and she stated "Punjabi". When questioned with regard to reading and writing in English, the Applicant stated the following: "I can read and write well but I hesitate when I speak". The Visa Officer proceeded to test the Applicant's ability in English. He dictated a paragraph to her from the pamphlet Settling in Canada for the purpose of testing her writing ability. The Visa Officer found that the Applicant wrote "with difficulty". He then asked the Applicant to read from the same pamphlet. He found that she read with great difficulty and was unable to comprehend what he had just said. The Visa Officer further found that the Applicant was unable to speak English, and the interview was conducted via the Punjabi interpreter. The Visa Officer informed the Applicant that he has assessed her reading and writing as "with difficulty" and speaking as "not at all", and she agreed with this assessment.
[9] With respect to the issue of personal suitability, the Visa Officer stated in his affidavit and in his CAIPS notes that the Applicant did not provide any evidence of her preparation to move to Canada. She informed the Visa Officer that her brother in Canada might buy a restaurant and if he did, she would work as a cook and would be given a fifty percent share in the business. When questioned as to what she knew about Canada, the Applicant simply stated: "I cannot say. I can tell you after I reach there". According to the Visa Officer, the Applicant's knowledge about Canada proved to be virtually non-existent. She was unable to provide proof of funds required for her initial establishment in Canada. She did not demonstrate initiative, motivation, resourcefulness or adaptability. Although the Applicant's previous application for permanent residence to Canada was refused five years earlier, there was no improvement in her English language skills. She did not demonstrate that she would be able to successfully establish herself in Canada in spite of the assistance of her relatives in Canada. The Visa Officer awarded the Applicant three points under the Personal Suitability factor.
[10] The central issues in this application are whether the Visa Officer's assessment of the Applicant's language skills and personal suitability was unreasonable, based on the evidence, and whether he exercised his discretion improperly in failing to acknowledge the interests of the Applicant's son in being united with the Applicant's brother in Canada as an important factor warranting a waiver of the point system requirement.
[11] Having carefully reviewed the written submissions of the parties and the Certified Tribunal Record filed with this Court under the cover letter dated October 25, 2000 as well as the Affidavit of Peter Roumbos, sworn on December 18, 2000, I am of the view that the Visa Officer's decision in this case can stand up to a probing examination and that this application for judicial review should be dismissed.
[12] With respect to the language assessment factor, the Visa Officer awarded the Applicant 2 units of assessment for her English language ability instead of 9. In his affidavit, he stated that the Applicant wrote "with difficulty" and read with "great difficulty" and was unable to comprehend what she had just read. In terms of speaking English, she was unable to, and the interview was conducted via the Punjabi interpreter. The Visa Officer's CAIPS notes, taken at the time of the interview, support these statements.
[13] The Visa Officer's assessment of the Applicant's ability to read, write and speak the English language was based on the written material that she was provided with her application as well as her ability to understand and communicate during the interview. The Visa Officer was in a much better position than the Court to assess the quality of language of the Applicant and, in the absence of any bad faith or breach of a principle of natural justice on the part of the Visa Officer in the present case, the Court must defer to his decision.
[14] The Visa Officer concluded that there was a lack of initiative, motivation, resourcefulness or adaptability, and she did not display any qualities to become successfully established in Canada in spite of the assistance of her relatives. This was a finding of fact which the Visa Officer was entitled to make on the record. Such findings are entirely within the discretion of the Visa Officer and unless the resulting determination is patently unreasonable, it should not be set aside. In my view, a perusal of this record does not persuade me that the Visa Officer relied on irrelevant or extraneous considerations, nor that his assessment was either arbitrary or capricious. It is evident from the record that he had a clear grasp of the issues in this case. In such circumstances it is not proper for a reviewing Court to interfere with the decision of the Visa Officer with respect to this factor.
[15] Counsel for the Applicant has argued that the Visa Officer erred in not awarding higher suitability points to the Applicant considering that she has a Canadian relative who has already set up a restaurant company for her use and that she intends to be a chef/cook in Canada. In Kats v. Canada (Minister of Citizenship and Immigration), (December 10, 1996), No. IMM-1414-96 (F.C.T.D.), McGillis J. had the opportunity to deal with a similar situation with respect to the issue of assistance from relatives in Canada in helping an applicant establish herself upon his arrival. She concluded that the visa officer did not err in failing to consider that circumstance when making his decision. I would agree with that view and would apply the rationale of that decision to the case at bar.
[16] I am satisfied that the Visa Officer did not err in law and was not unreasonable in refusing the Applicant's application for permanent residence. Accordingly, the application for judicial review is dismissed.
(Sgd.) "P. Rouleau" Judge
Vancouver, British Columbia
January 9, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5481-00
STYLE OF CAUSE: Jasbir Kaur v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 7, 2002
REASONS FOR ORDER OF THE COURT BY: Rouleau J.
DATED: January 9, 2002
APPEARANCES:
Mir Huculak FOR APPLICANT
Pauline Anthoine FOR RESPONDENT
SOLICITORS OF RECORD:
Mir Huculak Law Office FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Vancouver, British Columbia