Date: 20030124
Docket: IMM-1860-01
Neutral citation: 2003 FCT 76
BETWEEN:
MOHAMMAD JAVED
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These reasons arise out of an application for judicial review of a decision of a visa officer at New Delhi, India, wherein the visa officer determined that the applicant did not meet the requirements for immigration to Canada. The applicant applied in the independent category as a Civil Engineering Technician (NOC: 2231.2). The visa officer awarded him sixty-nine (69) units of assessment, including five (5) units of assessment for personal suitability, when seventy (70) units of assessment were required to qualify. The decision under review is dated the 28th of February, 2001.
[2] The applicant raised two (2) issues on his application for judicial review, namely: first, whether the visa officer committed a reviewable error of law in awarding five (5) units of assessment for personal suitability by applying an unreasonably high standard for awarding units of assessment and drawing unreasonable inferences; and secondly, whether the visa officer breached the duty of fairness by failing to advise the applicant of any concerns he may have had regarding the applicant's personal suitability and by failing to give the applicant an opportunity to disabuse him of his concerns.
[3] At the close of the hearing of this application for judicial review, I indicated that I would dismiss the applicant's application.
[4] I am satisfied that the visa officer did not apply an unreasonably high standard for awarding units of assessment and did not draw unreasonable inferences in arriving at his award of units of assessment for personal suitability. I am further satisfied that the visa officer did not breach the duty of fairness that he owed to the applicant.
[5] In Rani v. Canada (Minister of Citizenship and Immigration)[1], my colleague Justice Beaudry wrote at paragraphs 37 to 40 of his reasons:
In answer to the question regarding the search by a visa officer for related fields under which an applicant may be considered, this Court has held that the onus is on the applicant to satisfy the visa officer of his or her entitlement to the visa. It is up to the applicant to satisfy [supply] the pertinent information, and the visa officer is not required to conduct a probing, extensive search either to prod the applicant to reveal information that would assist the visa officer in determining whether the applicant qualifies in his intended occupation.
This view is supported by the decision of this Court in Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (F.C.T.D.), in which Jerome A.C.J. made the following remarks at paragraph 7:
It is also important to emphasize that the Immigration Act, 1976 in section 6 requires that those seeking landing in Canada must satisfy an immigration officer that they meet the selection standards set out in the Immigration Regulations, 1978. It is clearly, therefore, the responsibility of the applicant to produce all relevant information which may assist his application. The extent to which immigration officers may wish to offer assistance, counselling or advice may be a matter of individual preference or even a matter of departmental policy from time to time, but it is not an obligation that is imposed upon the officers by the Act or the Regulations.
Similarly, this Court noted in Yu, [Yu v. Canada, (Minister of Employment and Immigration) (1990), 36 F.T.R. 296] ...:
In my view, there is no ground for arguing unfairness in the process merely because the visa officer at an interview of the applicant does not stress all of the concerns he may have that arise directly from the Act and regulations that he is bound to follow in his assessment of an application. The Act and regulations pertinent to admission are available to applicants whose task is to establish to the satisfaction of the visa officer that they meet the criteria set out and that their admission to Canada would not be contrary to the Act.
It is noted that, as in the present case, the applicant in Yu submitted that if she had been asked, she would have given the information that the visa officer required. However, inherent in the remarks quoted above is the widely recognized maxim that ignorance of the law is not an excuse. The applicant could have accessed the Act and the Regulations and, either on her own or with the assistance of counsel, reviewed it in order to understand what is required of her, and prepare valid evidence to meet that burden. It was not up to the visa officer to tell her whether or not she had met that burden, or even what degree of progress she was making in that direction. ...
[6] To much the same effect, in Singh v. Canada (Minister of Citizenship and Immigration)[2] my colleague Justice Kelen, in recitals to his order dismissing an application for judicial review of a decision by an immigration officer at Hong Kong, wrote:
...
The officer is in the best position to assess the "personal suitability" of the applicant after the interview. The facts that the applicant worked for one employer (for almost all of his career life), has never worked in a non-English speaking environment, and has never travelled overseas, has not obtained any information or knowledge about Toronto or Canada, and will be completely dependent upon his brother in Toronto, are not unreasonable factors to be considered in assessing the "personal suitability" of a person and his dependents to become successfully established in Canada based on a person's adaptability, motivation, initiative, resourcefulness and similar qualities. Accordingly, the officer did not consider irrelevant factors.
...
And the Court is further satisfied that the visa officer did not breach the duty of fairness by failing to confront the applicant with concerns regarding the personal suitability of the applicant. The Court has held that the visa officer does not have a duty to inform an applicant of each negative impression, particularly when the negative impression concerned some aspect which is not amenable to change. See Yin v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1078 per Rouleau J. at paragraph 21;
I adopt the foregoing reasoning of my colleagues as my own and as being fully applicable to the issues raised on behalf of the applicant on this application for judicial review.
[7] Based upon the foregoing reasoning of my colleagues, I determine that the visa officer whose decision is here under review made no reviewable error in deciding as he did regarding the award of units of assessment to the applicant under the factor, personal suitability.
[8] In the result, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. I am satisfied that no serious question of general importance arises out of this application. In the result, no question will be certified.
________________________________
J. F. C.C.
Ottawa, Ontario
January 24, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1860-01
STYLE OF CAUSE: MOHAMMAD JAVED
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY JANUARY 16, 2003
REASONS FOR ORDER BY: GIBSON J.
DATED: THURSDAY JANUARY 24, 2003
APPEARANCES BY:
Mr. Paul Vander Vennen For the Applicant
Ms. Amina Riaz For the Respondent
SOLICITORS OF RECORD:
Mr. Paul Vander Vennen For the Applicant
45 St. Nicholas St.
Toronto,Ont.
M4Y-1W6
Morris Rosenberg For the Respondent
Deputy Attorney General of Canada
[1] [2002] F.C.J. No. 1477 (online: QL)(T.D).
[2] Court file: Imm-5728-00 - Order dated the 5th of June, 2002 (T.D.). .