Date: 20000215
Docket: IMM-3479-98
BETWEEN:
XINQIU LIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is an application for judicial review of a decision of a visa officer refusing the applicant a visa for permanent residence in Canada.
[2] The visa officer's decision is challenged on three grounds: she did not properly assess the number of points that should have been awarded to the applicant for the Educational Training Factor ("ETF"), Factor 2 of Schedule I of the Immigration Regulations, 1978; she fettered her discretion in deciding not to issue a visa to the applicant pursuant to subsection 11(3) of the Immigration Regulations, 1978; she considered irrelevant factors, when making her subsection 11(3) decision, such as that the applicant had never travelled to Canada and he had no relatives here.
[3] With respect to the first ground, Factor 2 of Schedule I reads:
| (1) To be measured by the amount of formal education and professional, vocational, apprenticeship, in-plant or on-the-job training specified in the National Occupational Classification as being necessary to acquire the information, techniques and skills required for the occupation in which the applicant is assessed under item 4. Units of assessment shall be awarded as follows: |
| (d) when the completion of course work, training, workshops or experience related to the occupation, ordinarily on the completion of secondary school, is required, seven units; [emphasis added] |
| (e) when a certificate or diploma of a college or technical school is required or when the completion of an apprenticeship program, a specialized training program or a vocational school training program is required, fifteen units; [emphasis added] |
| (2) When more than one Education/Training Indicator is identified in the National Occupational Classification for a given occupation, the lowest of the ratings shall be used to assess the Education and Training Factor. |
[4] The description of the qualifications required of a chef in the National Occupational Classification (the "NOC") are:
| " Completion of secondary school is usually required. |
| " Completion of a three-year cook's apprenticeship program |
| Equivalent training and experience are required. [Emphasis added.] |
[5] Counsel for the applicant argues that the qualifications described in the NOC for a chef equate to subparagraph (1)(e) in Factor 2 of Schedule I, and the applicant should therefore have been awarded 15, not 7, ETF points.
[6] Both counsel referred me to Mr. Justice Evans' decision in Chen v. Canada (Minister of Citizenship and Immigration) (IMM-2225-98, April 16, 1999), paragraphs 36 - 39, for his description of the structure of the ETF assessment process. Both counsel agree that the record before me does not contain all the relevant material to support an analysis similar to that undertaken by Mr. Justice Evans. Both counsel agree, however, that the ETI value for chefs is "4+", and that a 4 equates to 7 ETF points, and 5 equates to 15 ETF points.
[7] Counsel for the applicant argues that the proper approach when one has an ETI of 4+, since it is higher than 4, is to look at the NOC description of the qualifications for the occupation in question and compare that description with the text of Factor 2 in Schedule 1. Further, he argues that when this is done in the present case, it becomes clear that Factor 2(1)(e) is the relevant category. The NOC states that a three year apprenticeship program or equivalent training is required for a chef, and Factor 2(1)(e) of the Regulations states that 15 points are to be awarded when the completion of an apprenticeship program is required for an occupation.
[8] Counsel for the respondent argues that the correct approach is that adopted by Mr. Justice Evans, in the Chen case (supra), but even if it is not, and if the analysis suggested by counsel for the applicant is appropriate, the result is the same. Counsel for the respondent's argument is that both subparagraphs 1(d) and 1(e) of Factor 2 of Schedule I of the Immigration Regulations mesh with the employment requirements set out in NOC for a chef. The NOC description of the qualifications for a chef does not require the completion of an apprenticeship program; equivalent experience and training can also lead to a qualified chef. Factor 2(1)(e) describes the number of points that are to be awarded when the completion of an apprenticeship program is required. Factor 2(1)(d) describes the number of points that are to be awarded when "training, workshops or experience related to the occupation" is required. Thus, even if subparagraph 1(e) did encompass the qualifications required for the occupation chef, subparagraph 1(d) also applies. When two descriptions can apply to an occupation, paragraph 2 of Factor 2 provides that the lower rating be used.
[9] I accept that analysis. The NOC description does not require the completion of an apprenticeship program. This is one possible way to become qualified as a chef. One can also become qualified through training and experience, without the formality of an apprenticeship program. When two descriptions of qualifications apply, the lower of the ratings is to be used. Thus, even if the approach taken by counsel for the applicant is correct, the award of seven, not fifteen, points is the proper award.
[10] Counsel's second argument is that the visa officer should have exercised the discretion granted to her by Regulation 11(3) to issue a visa to the applicant, despite the fact that he had not been awarded the number of points required. The assessment of the applicant, done on the basis of the written material he had submitted, without a personal interview, led to an award of 52 points. In order to be given a personal interview, an applicant is usually expected to acquire 60 points at the paper screening stage. In order to be issued a visa, an applicant must be awarded 70 points, either before or after an interview.
[11] Subsection 11(3) of the Immigration Regulation, 1978, confers on the visa officer a discretion to award a visa, where it is determined that the units of assessment do not adequately reflect the applicant's chance of successfully establishing in Canada. Regulation 11(3) reads:
A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
[12] The Supreme Court approved the interpretation of subsection 11(3) of the Immigration Regulations, 1978, as being addressed to economic considerations relating to establishment in Canada. In Chen v. Minister of Employment and Immigration, [1995] 1 S.C.R. 725, the Supreme Court adopted the view of Mr. Justice Strayer, expressed in [1991] 3 F.C. 350, and of Mr. Justice Robertson of the Court of Appeal, in dissent, in [1994] 1 F.C. 369.
[13] Counsel's argument is that this applicant has demonstrated that he can establish himself in an economic and social milieu comparable to Canada, the United States, and this should be a very compelling factor for a visa officer when considering subsection 11(3) discretion. The applicant arrived in the United States in 1992. He is without status in that country, but nevertheless has maintained employment since a month after he arrived. He has prospered. I quote from Mr. Leahy's argument:
| The undisputed facts in this case were that Mr. Liu, the very month he arrived in the United States, had secured employment in his 3intended occupation3 and, at the time Ms Egan rejected him, had been holding that position for over 5" years, was earning over 150% of the income Immigration sets for families of three, such as his, and had assets exceeding the amount Immigration sets for a family twelve times that size; and yet, Ms Egan alleged that Mr. Liu does not merit positive discretion. |
[14] Mr. Leahy's position is that the raison d'être of visa officers, in selecting immigrants, is to select people who are likely to be able to establish themselves in Canada, people who will contribute to the economy and the country. He argues that it is, therefore, perverse when someone with this applicant's history is rejected as a potential immigrant, particularly when he works in an occupation for which there is significant demand.
[15] I agree that ability to establish is a very important factor. At the same time, I find Mr. Justice Evans' analysis of the interrelationship of the points assessment process and the discretion given to visa officers by subsection 11(3), described in Chen v. Canada (Minister of Employment and Immigration) (IMM-2225-98, April 16, 1999), compelling:
| [14] The applicant's contention is that it was unreasonable for the officer not to have exercised her statutory discretion in favour of the applicant in view of the clear evidence in the material before her of his ability to become successfully established in Canada in the sense of being economically self-sufficient. In particular, counsel noted that the applicant had been employed in the United States since 1991 in his intended occupation, that he is earning an annual salary of $49,000, has accumulated savings of $31,000 and owns a property in China worth $52,000. |
| [15] Mr. Leahy acknowledged that evidence of self-sufficiency in an applicant's country of origin will not in itself trigger the exercise of positive discretion under subsection 11(3). However, he maintained, when applicants have left their country of origin, and demonstrated that they can be economically self-sufficient pursuing their intended occupation in an economic and social environment similar to that of Canada, this should weight heavily in favour of the issue of a visa to applicants whose units of assessment would not otherwise result in a favourable decision. |
| [20] In my opinion, the fact that the applicant has been economically self-sufficient in the United States while working at the occupation that he intends to pursue in Canada is a relevant factor that a visa officer ought to take into account when considering whether an applicant's ability to become successfully established in Canada is adequately reflected by the units of assessment awarded on the basis of the factors listed in Schedule I. |
| [21] However, it is not a function of this Court to determine whether the visa officer has given sufficient weight to this consideration. This is a matter for the exercise of the statutory discretion entrusted to the visa officer in light of the complete file, including how close the applicant is to obtaining the normally required number of units of assessment. Only if the visa officer's exercise of discretion can be characterized as arbitrary or capricious or otherwise unreasonable should the Court intervene. |
| [23] ... Without trespassing on the discretion conferred upon visa officers by subsection 11(3), I would have thought that the discretion in question is residual in nature, and should be decisive only in cases that present unusual facts, or where the applicant has come close to obtaining 70 units of assessment. |
| [24] The primary tool for determining the issue of visas to independent immigrants is an evaluation of the factors listed in Schedule I, which subsection 8(1) of the Regulations requires visa officers to use in determining whether an applicant is likely to become successfully established in Canada. One of the objectives of the statutory scheme established for assessing visa applications is to encourage consistency in decision-making and to reduce the exercise of unstructured and potentially arbitrary discretion by visa officers that would likely result if officers were permitted, without more specific statutory regulation, to base decisions on their own assessment of an applicant's chances of successful establishment. |
[16] I accept that one of the purposes of the legislated points system is to encourage consistency in decision-making by visa officers. Without this system of legislative restraint and guidance, the exercise of discretion on a case by case basis would be unstructured and potentially arbitrary. I accept that subsection 11(3) discretion is a residual discretion and is, generally, intended to operate in unusual cases or when the points an applicant has been awarded is close to the required 70 points (I say generally, not necessarily always).
[17] The applicant's establishment in the United States does not automatically lead to a conclusion that he should be admitted to Canada. He does not fall within the parameter of cases such as So v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm.L.R. (2d) 153 (F.C.T.D.); Chand v. Canada (Minister of Citizenship and Immigration) (1998), 41 Imm.L.R. (2d) 165 (F.C.T.D.); Mui v. Canada (Minister of Citizenship and Immigration) (1998) 146 F.T.R. 51 (F.C.T.D.). They all dealt with assessments of "personal suitability", Factor 9 of Schedule I of the Regulations, not Regulation 11(3). All dealt with applicants who had established themselves in Canada, so that it was clearly perverse for visa officers to award such candidates less that an average number of points for an assessment that is supposed "to reflect the personal suitability of the person ... to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities". In addition, the number of points by which their assessment could be increased as a result of de facto establishment in Canada was no more than 10, since that is the total number possible for personal suitability (in fact, in none of the three cases could the extra points have exceeded six). The applicant seeks in this case to use his establishment in the United States to increase the number of points he is awarded by 18.
[18] Counsel for the respondent notes that the Court is required to accord a visa officer's decision considerable deference on judicial review. The Federal Court of Appeal in Chiu Chee To v. M.E.I., (A-172-93, May 23, 1996), held that the appropriate standard of review for discretionary decisions by visa officers, with respect to immigrant applications, is the same as that enunciated by the Supreme Court of Canada in [1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, where Mr. Justice McIntyre stated at pages 7-8:
| It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere ... |
[19] Counsel for the applicant notes that these decisions pre-date Baker v. Canada (M.C.I.), 174 D.L.R. (4th) 193, (S.C.C.), as does Mr. Justice Evans' decision in Chen, supra. He asserts that those cases must now be assessed in the light of Baker.
[20] I do not read the Baker decision as making a fundamental change in the applicable standard of review. The majority decision in that case stated that one applies a pragmatic and functional approach when deciding the standard of review to be used in any given case, an approach that had been articulated in several previous Supreme Court decisions. This approach leads to the weighing of a number of different factors. At paragraph 55 (on page 225) of the majority decision the following explanation is found:
| ... the pragmatic and functional approach takes into account considerations such as the expertise of the tribunal, the nature of the decision being made, and the language of the provision and surrounding legislation. It includes factors such as whether a decision is "polycentric" and the intention revealed by the statutory language. The amount of choice left by Parliament to the administrative decision-maker and the nature of the decision being made are also important considerations in the analysis. ... |
At paragraph 56 (page 226) of the majority decision, the following passage is found:
| ... The pragmatic and functional approach can take into account the fact that the more discretion that is left to a decision-maker, the more reluctant courts should be to interfere with the manner in which decision-makers have made choices amongst various options. However, though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed by the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the charter. |
[21] Throughout the Baker decision, there are passages that indicate that the immigration officer's decision must be reasonable, that the officer must exercise his discretion in a reasonable manner, with consideration given to the particular circumstances of the case. The decision under review in the Baker case was one made by an immigration officer pursuant to section 114(2) of the Immigration Act, a decision as to whether humanitarian and compassionate grounds existed that the applicant should be allowed to apply for landing from within Canada. The decision under review in Baker was found to be unreasonable because the visa officer had not taken into account a relevant factor - a provision in an international convention, which Canada had signed, dealing with human rights.
[22] Counsel for the applicant notes that the majority Supreme Court decision in Baker stated that among the factors relevant to a humanitarian and compassionate review were "the fundamental values of Canadian society". There is no evidence in this case (e.g. such as the provision of an international treaty) of the particular value that the visa officer ignored. I accept that Canadians want individuals admitted to the country as immigrants who will be able to establish themselves economically, contribute to the economy of the country, and not be forced to depend on social and welfare services. I think I can take notice, however, that Canadians are also concerned that immigration requirements, indeed all legal rules, be applied as equally as possible to all applicants - queue jumping, or the granting of special advantage to some, over others, is not acceptable.
[23] This applicant might make a good immigrant but, as noted, he falls far short of the points required. The screening out of people who might in fact make good immigrants is the price a society pays for adopting legal rules that are designed to constrain the exercise of discretion by government officials, and that try to establish a framework to treat all individuals as equally as possible. This drawing of lines that may on occasion lead to inappropriate results is a feature of not only immigration legislation, but of all legal prescriptions.
[24] The visa officer in the present case considered whether 11(3) discretion should be used and, therefore, it cannot be said that she did not consider that possibility. She had the applicant's submission before her, which included a description of the applicant's establishment in the United States. She considered that evidence. I cannot conclude that the decision in refusing to exercise 11(3) discretion was unreasonable.
[25] In summary, the applicant falls far short of the points required for a visa. This case is not an unusual one. I cannot conclude that the visa officer was unreasonable in not giving greater weight to the fact that the applicant had established himself in the United States than she did. The facts identified by the applicant do not lead to a conclusion that that decision was unreasonable, subject to a consideration of the argument that the visa officer took into account irrelevant consideration.
[26] I turn then to the argument that the visa officer considered irrelevant considerations. This argument is based on the visa officer's CAIPs notes, in which she wrote:
| However, when assessed in this occupation, subj [subject] does not meet the selection criteria due to insufficient points. Appears as through points awarded rcd [record] accurately reflect subj, chances of successfully settling in Cda [Canada] - no previous travel to Cda, no family in Cda, no apparent employment prospects in Cda. As pts [points] rec [received] appear to accurately reflect subj" chances of successfully settling in Cda, r11(3) is not warranted. |
[27] Counsel for the applicant is right that when one is considering personal suitability, which is assessed when a personal interview has been granted, the focus of the visa officer's assessment is on the applicant's ability to successfully establish himself or herself economically in Canada. In that context, it is an error to rely on the applicant's lack of family in Canada (a factor specifically assessed earlier in the assessment process) or to rely on the lack of a job offer (another factor already assessed earlier in the assessment process).
[28] I also agree with counsel that the weight to be given to both those factors must be assessed in light of the fact that the applicant had never visited the United States before he arrived there, yet he successfully established himself in the United States, and that "no family" is not accurate if one is considering a person's extended family; a cousin of the applicant's wife lives in Canada. It is accurate if one is thinking only of the family members listed in the definition of "assisted relative" in section 2(1) of the Immigration Regulations. I do not think the visa officer misunderstood the evidence. I would understand her to be referring to the more restricted definition of "family".
[29] In any event, I am not persuaded that the comments in the CAIPs notes are irrelevant to subsection 11(3). Unlike a personal suitability assessment, which is a specific factor in Schedule I, separate and distinct from the other factors to be evaluated, subparagraph 11(3) requires a review of the existing points that have been awarded to see whether they reflect an under-evaluation, or an over-evaluation. I understand this to be the exercise the visa officer was undertaking. The factors recorded in the CAIPs note are not irrelevant in that context.
[30] For all of the reasons given, I must dismiss this application.
Judge
OTTAWA, ONTARIO
February 15, 2000
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