Case Comments: Summarization of some recent court rulings

Evaluating Personal Suitability: Applicants who apply for a Canadian permanent resident visa under the "Skilled Worker" category are assessed under a "points" system. Under current Federal Selection Criteria, applicants are awarded "units of assessment" for a number of objective factors, such as age, education, occupational background and language ability.

In addition, applicants may be awarded up to a maximum of 10 units of assessment under the somewhat discretionary "Personal Suitability" factor. An assessment as to "Personal Suitability" is supposed to reflect the interviewing visa officer’s impression of the applicant’s likelihood to successfully settle in Canada. Among other things, visa officers are supposed to assess – in as objective a manner as possible – an applicant’s adaptability, motivation, initiative and resourcefulness.

Recent jurisprudence emanating from the Federal Court of Appeal reflects the Court’s increasing frustration with interviewing visa officers who award few "points" under "Personal Suitability" as a means of rejecting applicant’s who otherwise have objectively strong cases but, for some discretionary reason, are not deemed worthy of success by the particular visa officer.

In the recent case of Huang Wei Wen v. Canada (Minister of Citizenship & Immigration), the applicant was awarded a mere 4 units (out of a possible 10) under the Personal Suitability factor. In ruling in favour of the applicant, the Court found the visa officer’s decision unreasonable for three reasons.

Firstly, the visa officer had made an erroneous finding of fact. The visa officer overlooked the fact that the applicant’s wife worked as a bookkeeper, an occupation on the occupational demand list. The Court held that the employability of the spouse was a relevant factor in the assessment of the applicant’s suitability for which he received no credit. Furthermore, the visa officer admitted to this "oversight" in her affidavit and agreed that she would have awarded one unit of assessment for the spouse’s occupation had she in fact taken this into account.

Secondly, the visa officer breached procedural fairness in not raising her concerns about the applicant’s settlement arrangements. The Court found this omission to be even more significant given that the visa officer was unable, in cross-examination, to point out any other reasons that could have triggered her low assessment of the applicant’s Personal Suitability. If this was in the fact the case, the visa officer should have at least given the applicant the opportunity to disabuse her of her concerns regarding his ability to settle in Canada.

Thirdly, upon careful cross-examination, the visa officer was obliged to admit that the applicant had a bona fide job offer in Canada, that his spouse was working in a demand occupation, and that he had relatives in Canada about whom she did not have any particular concerns with respect to ability to assist to settle in Canada. Furthermore, the visa officer stated that his English language ability was not an issue and that he had "some knowledge of Canada." As a result, the Court found no objective factors on which the visa officer could justify her negative assessment under Personal Suitability.

For these reasons, the Court held that the visa officer’s decision as to Personal Suitability was "perverse."

Another recent case on point is that of Mustafa Maniruzzaman v. Canada (Minister of Citizenship & Immigration). In that case, the applicant was applying under the occupation of bank utility clerk. The visa officer had awarded the applicant minimal units for Personal Suitability on the grounds that the applicant had been unable to demonstrate that he had made any effort to learn about the banking industry in Canada (his intended occupation) or about Canada in general. As a result, the applicant’s application for permanent residence was refused.

In finding in favour of the applicant, the Judge made a detailed review of the questions posed by the visa officer and the applicant’s responses. While the Judge agreed that the applicant’s knowledge of Canada and the Canadian banking industry was not ideal, it was far from unacceptable. Furthermore, the Court held that the visa officer placed an inordinate amount of weight on relevant but not central factors, such as the applicant’s knowledge of Canadian geography. At the same time, the visa officer appeared to ignore or not explore much more relevant areas, such as the applicant’s efforts to apply for a job in Canada.

In this case, the visa officer’s line of questioning left the Court with the impression that the visa officer was not fairly assessing the applicant’s personal suitability. For example, in criticizing the applicant for not having searched more diligently for a job in Canada, the visa officer completely ignored the obvious reality that few Canadian employers will offer a job to an immigrant who does not yet have status in Canada.

Furthermore, the Court found that the applicant’s failure to become more knowledgeable about Canada must be considered in the context in which the applicant found himself. He had applied for permanent residence two years before. He had been paper screened and discouraged from proceeding further. He persisted, however, and insisted that he be given an interview. The Judge therefore concluded that the applicant was being interviewed in a situation in which he had been actively discouraged from proceeding with his application, and he could have no firm expectation that he would be accepted for permanent residence.

Assessing Occupational Experience and Equivalency:

As discussed above, Skilled Worker applicants are assessed under a "point" system. Under current Federal Selection Criteria, "units of assessment" are awarded, among other things, for occupational experience. Applicants may be awarded up to 8 units of assessment depending on the amount of relevant work experience accumulated and the type of occupation in question.

In the recent case of Vandana Dogra v. Canada (Minister of Citizenship & Immigration), the Court was faced with the issue of the extent to which visa officers are authorized to look behind the National Occupation Code (NOC) descriptions of education, training and experience, or other statutory criteria, in an attempt to assess the relevance of an applicant’s credentials for becoming successfully established in Canada. In this case, the visa officer evaluated the applicant’s experience as a guidance counsellor in India as zero, on the grounds that the applicant’s experience did not equip her with, and she did not possess, the cultural knowledge necessary to counsel children in schools in Canada.

In ruling in favour of the applicant, the Judge first noted that the experience factor under the current Federal Selection Criteria does not require the visa officer to determine whether an applicant’s experience is equivalent to that in Canada, other than by considering the extent to which the duties performed match those in the description in the NOC. As to whether the visa officer was entitled to make such an "equivalency" determination, the Judge stated that assessing "Canadian equivalents" of overseas qualifications and experience is a task that may be better left to national accreditation committees and provincial licensing authorities.

Furthermore, the Judge stressed that immigration policy is placing increasing emphasis on applicants’ flexibility and adaptability. Thus, educational background and active work experience are likely to be of more importance in predicting successful establishment in Canada.

The Court held that for a visa officer to reject an application for permanent residence as a school guidance counsellor because students in Canada "for the most part, come from an entirely different background than yourself" is at odds with the realities of today’s Canada. For example, many boards of education might regard the applicant’s national origin and experience in Indian schools as valuable assets in assisting children, particularly of South Asian origin, to flourish in a setting where there are conflicts between the values of the students’ ethnic communities and the values of North American society at large.

Lastly, the Judge sternly rebuked the visa officer for posing detailed – and extremely subjective - questions about Canadian customs and culture. For example, the visa officer asked the applicant about the number of grades in Canadian high school, rock groups currently popular with Canadian teenagers and whether she knew what crack cocaine was. The Judge stated that any such questions which are designed to elicit a knowledge of "Canadian customs and culture" are suspect by their very nature, because they assume that "Canadian customs and culture" are monolithic. Not only is this contrary to the theory and practice of multiculturalism in Canada, but it also could easily lead to visa officers identifying as "Canadian customs and culture" those of the oldest established groups only.