Peng v. Canada (Minister of Citizenship and Immigration), docket IMM-239-98

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docket IMM-239-98

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Date: 19990106

Docket: IMM-239-98

BETWEEN:

WANLI PENG

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

(Edited version of reasons delivered from the Bench

on Tuesday, January 5, 1999 at Toronto, Ontario)

REED J.

[1] I have not been persuaded that there are grounds to justify a setting aside of the visa officer's decision.

[2] The record establishes that the senior immigration officer (SIO) had all the CAIPS record in front of him when he approved the visa officer's decision, under section 11(3) of the Immigration Regulations, to refuse to issue an immigrant visa to the applicant. This is not a decision that falls within Hoballahi v. Canada (1996), 124 F.T.R. 164.

[3] Nor can I find that the visa officer misstated or mischaracterized the evidence. He referred to the fact that the applicant, who sought admission to Canada as a landed immigrant with the intention of working as a veterinarian, had not inquired whether there were professional licensing requirements that he would have to meet in order to work in that occupation. The visa officer referred to the fact that the applicant had made no active job search for employment in Canada. The visa officer referred to the applicant's "job offers" in the United States and discounted them because he was concerned about the applicant's efforts with respect to the Canadian job market. The only documentary evidence the applicant has put forward with respect to these offers is a letter from a veterinary network in Florida that describes opportunities to build one's practice in Florida and solicits a résumé from the applicant. It is not a job offer. The visa officer refers to the applicant's assertion that there are friends and associates in Canada that are willing to help him establish himself. The visa officer notes that none of these are relatives or close friends and, particularly, that none of them are contacts that he might use to find employment. The letter from the professor in Manitoba is a letter inviting the applicant to become a student, not an offer to assist him in finding employment. As noted, there is no misunderstanding or misstating of the evidence.

[4] I turn then to the argument, based on Chen v. Canada (Minister of Citizenship and Immigration) [1993] 3 F.C. 350 (T.D.), aff'd [1995] 1 S.C.R. 725, that the visa officer cannot exercise his discretion to refuse admission under section 13 unless he has given the applicant a score of zero for personal suitability. The comments of Mr. Justice Strayer in that case have been explained in other decisions of this Court, for example, Savin v. Canada (Minister of Citizenship and Immigration) (1995), 102 F.T.R. 67 and Covrig v. Canada (Minister of Citizenship and Immigration) (1995), 104 F.T.R. 41.

[5] The essential ground of Mr. Justice Strayer's decision was that, in exercising their discretion under Regulation 13, visa officers are required to focus on factors that relate to the chances of the particular immigrant and his dependants becoming successfully established in Canada.

[6] At pages 359 - 361 of his decision he wrote:

More specifically, the basic question is - on what grounds can the visa officer exercise his discretion in forming the opinion that there are "good reasons" why the number of units awarded do not reflect adequately the chances of an immigrant becoming "successfully established" in Canada? It is inconceivable that this was intended to give a visa officer an unlimited mandate to decide whether a particular immigrant is generally suitable or not as a future member of Canadian society, given the existence of other, extensive, provisions in the Act for identifying those who are suitable or unsuitable...

...

... it is difficult to read the discretionary power granted to a visa officer by subsection 11(3) of the Regulations as allowing him to ignore the number of units of assessment to determine, for essentially non-economic reasons, that an immigrant does not have a chance of becoming successfully established in Canada. While the subsection only requires that the visa officer have "good reasons", those reasons must be such as lead him to believe that the immigrant cannot become successfully established in the economic sense. They do not include such reasons as that an immigrant will probably not be a good neighbour, a good resident, or ultimately a good citizen of Canada; or that the immigrant is a bad or immoral person if judged on his past conduct.

[7] Subsection 11(3) of the Immigration Regulations reads:

11(3) A visa officer may

(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,

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.

[8] It was in this context then that Mr. Justice Strayer made reference, at page 363, to the need for a zero rating:

This raises difficult questions as to the relationship between an assessment made in accordance with sections 8 and 9 and Schedule I, and a finding under subsection 11(3) that such an assessment of units should not be determinative of whether a person can become successfully established. If the unit assessment is wrong, then the visa officer should change that assessment. In this case Mr. Spunt reviewed the assessment of "personal suitability" made by Ms. Trillo as 7 units out of 10 and he confirmed it. I fail to see how he can then offer as a reason for his negative exercise of discretion that the applicant does not have a sufficient degree of personal suitability. It is conceivable that the discretionary power under subsection 11(1) could properly be used where an immigrant was so lacking in one of the factors listed in Column I that a 0 rating would not adequately reflect the negative impact of that deficiency on his ability to become successfully established. But it appears to me that a precondition for exercising the discretion on that ground would be to rate that factor at 0 in the assessment.

[9] I understand this decision to be that when a visa officer considers factors not directly relevant to an applicant's chances of being able to establish himself or herself in Canada, and those factors have been considered under one of the headings of assessment, it is the latter assessment that should be changed, not a refusal under Regulation 13. Mr. Justice Strayer did not state that in every case of a Regulation 13 refusal that the personal suitability assessment must be zero before a refusal can issue.

[10] In this case the visa officer's reasons for issuing a refusal all relate to the proposed economic establishment of the applicant. None of it was based on lack of personal suitability.

"B. Reed"

Judge

TORONTO, ONTARIO

January 6, 1999

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-239-98

STYLE OF CAUSE: WANLI PENG

and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

DATE OF HEARING: TUESDAY, JANUARY 5, 1999

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: REED, J.

DATED: WEDNESDAY, JANUARY 6, 1999

APPEARANCES: Mr. Nkunda I. Kabateraine

Ms. Regina Seryide

For the Applicant

Ms. Leena Jaakkimainen

For the Respondent

SOLICITORS OF RECORD: Nkunda I. Kabateraine

Barrister & Solicitor

403-607 Gerrard St. E.

Toronto, Ontario

M4M 1Y2