BENCY D'SILVA Applicant - v. -, 2003 FCT 366

Date: 20030328 Docket: IMM-194-02 Citation: 2003 FCT 366 Ottawa, Ontario, March 28, 2003 Present: THE HONOURABLE MR. JUSTICE O'REILLY BETWEEN: BENCY D'SILVA Applicant - and - THE MINISTER OF CITIZENSHIP & IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] Ms. D'Silva is 29 years old and a citizen of India. She applied for permanent residence in Canada at the Canadian High Commission in London, England. She intended to seek employment in Canada as a Merchandiser (or, Retail and Wholesale Buyer).

She was assessed by a visa officer, who found her to be three points short of the required 70 points. [ 2 ] There are various categories under which points are assigned in applications for permanent residency. The only category in issue in this case is "personal suitability". The officer awarded Ms. D'Silva three points out of a possible ten points in that category. A higher score might have made her eligible for permanent residency.

She argues that a serious error was made by the officer and seeks to have her application reconsidered. [ 3 ] The score for personal suitability is based on an interview with the applicant. Applicants are evaluated in terms of their ability to become established in Canada considering their "adaptability, motivation, initiative, resourcefulness and other similar qualities" (Item 9,

Schedule I, Immigration Regulations , 1978). I. Assessment of Ms. D'Silva [ 4 ] The visa officer gave Ms. D'Silva full points for educational qualifications and work experience, notwithstanding some doubts about her professional knowledge. However, those doubts found their way into the assessment for personal suitability on the grounds that the applicant's academic knowledge was not current and, according to the officer, she displayed a lack of awareness of "the value of an education in settling in Canada." [ 5 ] In particular, according to the officer's notes from the interview, Ms.

D'Silva was asked about the studies leading to her Bachelor of Science, majoring in textiles. She was incapable of answering questions about the chemical composition and characteristics of cotton and wool. She had forgotten some of what she had learned in courses at university. This reflected poorly, according to the officer, on Ms. D'Silva's personal suitability to become a permanent resident of Canada. Was the Personal Suitability Assessment based on Inappropriate Considerations? [ 6 ] In Ms.

D'Silva's case, her personal suitability score was based solely on factors related to her education, even though there is separate category for that. It is clear that an applicant must not be the victim of "double counting" - that is, a negative assessment in one category should not discount the points awarded under another: Barua v. Canada (Minister of Citizenship and Immigration) , [1998] F.C.J. No. 1571 (QL)(T.D.) . However, it is perfectly appropriate to consider factors both under a particular category and again under personal suitability, so long as it is done from a different perspective: Ajmal v.

Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 26 (F.C.T.D.) . [ 7 ] Here,educational factors were addressed both under the specific rubric of education, as well as under personal suitability. For purposes of the first category, the assessment was simply a product of Ms. D'Silva's years of study. However, the latter assessment was done from a different perspective in that the officer considered whether Ms. D'Silva's knowledge of her studies was current and whether she appreciated the value of education as a means to successful settlement in Canada.

In principle, I see no error in that approach. It did not amount to "double counting". [ 8 ] However, Ms. D'Silva's personal suitability seems to have been assessed by reference only to that single factor. The officer gave heavy, indeed excessive, weight to the educational considerations mentioned above, particularly Ms. D'Silva's fading memory of specific elements on her university curriculum. The officer did not appear to consider other significant factors that were at least equally relevant - Ms.

D'Silva's success in securing employment in her chosen field, her recent professional experience, her knowledge of Canada and other personal characteristics related to the prescribed factors of "adaptability, motivation, initiative, resourcefulness and other

similar qualities". [ 9 ] In my view, the visa officer's approach led her into reviewable error. The applicant is entitled to have her application reconsidered by another officer. JUDGMENT IT IS HEREBY ADJUDGED that the application for judicial review is allowed. The applicant's application for permanent residence shall be reconsidered by a different visa officer. "James W. O'Reilly" J.F.C.C.

FEDERAL COURT OF CANADA NAMES OF SOLICITORS AND SOLICITORS OF RECORD DOCKET: IMM-194-02 STYLE OF CAUSE: BENCY D'SILVA Applicant - and - THE MINISTER OF CITIZENSHIP & IMMIGRATION Respondent PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: MARCH 18, 2003 REASONS FOR JUDGMENT AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY DATED: March 28, 2003 APPEARANCES BY : Mr. M. Max Chaudhary FOR THE APPLICANT Ms. Kareena R. Wilding FOR THE RESPONDENT SOLICITORS OF RECORD : M.

Max Chaudhary Chaudhary Law Office 18 Wynford Drive, Suite 707 North York, Ontario M3C 3S2 FOR THE APPLICANT Morris Rosenberg Deputy Attorney General of Canada Ottawa, Ontario FOR THE RESPONDENT