Date: 19990219
Docket: IMM-2073-98
BETWEEN:
GUOZHONG WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the decision of Raymond Gabin Vice-Consul of the Canadian Consulate General in Buffalo, New York, who refused the applicant's application for permanent residence to Canada by letter dated May 19, 1998.
[2] The applicant applied for permanent residence in Canada under the independent category under the intended occupation of Head Chef. Accompanying the applicant"s application for permanent residence, were submissions made by his counsel and dated January 23, 1998. In those submissions, the applicant"s counsel admitted that the applicant did "not make selection criteria" but asked that the applicant be considered for discretion pursuant to s.11(3) of the Immigration Regulations .
FACTS
[3] On March 31, 1998, the visa officer assessed the applicant"s application for permanent residence.
[4] The visa officer determined that the applicant was qualified as a Head Chef, however, he did not obtain the necessary number of units in the occupational demand assessment as required. The applicant was given 52 units of assessment on his application for permanent residence.
[5] The visa officer then considered whether positive discretion should be given to this applicant pursuant to s.11(3) of the Immigration Regulations.
[6] After reviewing the evidence, the visa officer determined that the number of units of assessment accurately reflected the applicant"s chances of successfully establishing himself in Canada.
[7] The visa officer refused the applicant"s application for permanent residence by letter dated May 19, 1998.
ISSUES
| 1 - Did the visa officer err in law in failing to provide this applicant with an interview prior to making his determination pursuant to s.11(3) of the Immigration Regulations? |
| 2 - Did the visa officer err in law in under assessing the applicant's intended occupation? |
| 3 - Did the visa officer fetter his discretion by failing to make his own analysis of the ETF? |
| 4 - Did the visa officer fail to conduct a bona fide review under Rule 11(3)? |
APPLICANT'S RELEVANT ARGUMENTS
[8] The visa officer awarded the applicant seven units for the Educational Training Factor which resulted in his receiving no more than four units for experience; whereas, had the visa officer used the next higher Educational Training Factor, the applicant would have been awarded fifteen units for Educational Training Factor and six for experience, bringing his sub-total to sixty-two units, thereby precluding the visa officer's refusing to permit him to be interviewed.
[9] The applicant suggests that the visa officer failed to conduct a proper review under section 11(3) of the Regulations. Given the fact that the applicant has clearly established himself in the United States, the visa officer's assertion that he is unlikely to become successfully established in Canada defies belief and is contrary to the facts before him.
[10] The applicant suggests that there is no rationale for the visa officer's decision that is discernible from his decision.
[11] The applicant suggests that by failing to permit him to address whatever concerns prompted the visa officer to refuse to allow him to be interviewed for an immigrant visa, the visa officer breached his duty.
[12] The applicant suggests that because the visa officer did not proffer an affidavit, the respondent has conceded that he ignored relevant facts and made a decision invalid on its face and that there is no admissible evidence to support his findings making his decision legally indefensible.
RESPONDENT'S RELEVANT ARGUMENTS
[13] The respondent suggests that the applicant failed to meet the selection criteria as set out in the Regulations, therefore the visa officer did not err in law in refusing the applicant's application for permanent residence.
[14] The Respondent suggest that the visa officer did not under assess the applicant"s intended occupation. The CAIPS notes indicate that the visa officer assessed the applicant as a Head Chef. The occupational factor as set out in the general occupations list, issued May 1, 1997, by Citizenship and Immigration Canada, indicates that these are the units of assessment to be given for chefs and specialist chefs as submitted by the applicant. Therefore, the visa officer did not under assess the applicant"s intended occupation nor did he fetter his discretion by following the National Occupation Classification.
[15] The respondent suggests that the visa officer was not required to interview the applicant in his assessment for discretion pursuant to s.11(3) of the Immigration Regulations as the applicant had only obtained 52 units.
[16] The respondent suggests that the visa officer made his decision on the basis of the evidence provided by the applicant and that the units awarded to the applicant accurately reflected his ability to become successfully established in Canada.
[17] The respondent suggests that, pursuant to the Federal Court Rules the respondent has 30 days after service of the applicant"s affidavits to serve and file any supporting affidavits. In this case the respondent chose not to file an affidavit as no interview was conducted and the Certified Tribunal Record, which includes the CAIPS notes of the visa officer, is evidence of the material considered by the visa officer in rendering his decision. By not filing an affidavit the respondent has not conceded anything. The Certified Tribunal Record is evidence in support of the visa officer"s decision.
ANALYSIS
[18] In Chiu Chee To v. M.E.I., the Federal Court of Appeal held that the appropriate standard of review of the discretionary decisions of visa officers with respect to immigrant applications was the same as that enumerated in Maple Lodge Farms Ltd. v. Government of Canada et al., at pages 7 and 8 where MacIntyre, J., stated as follows:
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It is, as well, a clearly-established rule that the court 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. |
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Where the statutory discretion has been exercised in good faith and, were 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. |
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[19] The visa officer in his assessment of the occupational factor followed the General Occupations List which indicates that the Educational Training Factor for the intended occupation of the applicant, i.e. Chefs, is seven units. This is what the visa officer allotted to the applicant and therefore, there is no reason to conclude to under assessment. I have reviewed carefully the employment requirements under the description of Intended Occupation of the Applicant, i.e. Chefs. I also reviewed the General Occupations List and Schedule I relating to education and training, particularly the paragraphs (d) and (e), and conclude that the visa officer has not made a reviewable error.
[20] Relating to the discretion by the visa officer section 11(3) of the Immigration Regulations says:
| 11(3)
| (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, |
| 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. |
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11(3)
(3) 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,
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.
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[21] The wording of section 11(3) through the words "the visa officer may" and "if in his opinion" makes it clear that this is a broad discretion left to the appreciation of the visa officer.
[22] Section 11.1 of the Immigration Regulations, 1978 states that for the purposes of determining whether or not an immigrant or his or her dependents will be able to become successfully established in Canada, an interview is not required unless under the independent category the applicant has been awarded at least 60 units of assessment.
[23] Therefore, there was no legal requirement for the visa officer to conduct an interview for the purpose of evaluating the chances of the applicant becoming successfully established in Canada.
[24] The applicant submits that the applicant had found a job as a head chef in the United States, that he had a certain amount of money and that chefs are viewed as being immigration-worthy and that the visa officer made a reversible error by not considering these facts.
[25] However, the visa officer clearly stated in his letter to the applicant that:
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I have also determined that relief pursuant to subsection 11(3) of the Regulations is not warranted as, in my opinion, the units of assessment awarded to you are an accurate reflection of your chances of becoming successfully established in Canada. |
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Therefore there is no evidence that the visa officer failed to conduct a section 11(3) of the Immigration Regulations.
[26] The applicant suggests the breach of the Muliadi principle. In Muliadi v. Canada (M.E.I.), [1986] 2 F.C. 205, Justice Stone for the Court of Appeal, referring to a negative assessment received from the Province of Ontario by the visa officer, made the following remark:
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Had the appellant been informed of that assessment before it was decided to reject his application, he might have been able to look into the matter and, possibly, to disabuse the visa officer of his view that the business was not viable. |
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[27] In Chou v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 819, Justice Teitelbaum made the following comments regarding the duty of fairness on the visa officer:
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In the present case, I am satisfied the visa officer failed in her duty of fairness in not asking the applicant, after receiving the "insurance cards" to explain what the visa officer found to be a contradiction as to the work history of the applicant. |
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It appears to me that the applicant was denied the right to "explain" the alleged contradiction. |
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[28] In Dhesi v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 59, Justice Dubé held that there was a duty of fairness on the visa officer to clarify the matter when contradictions between oral answers and the documents referred to occurred:
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There is a duty upon a tribunal to deal with the totality of the evidence and to further explore obvious contradictions between the oral evidence of a witness, who may be nervous (although he may, as in this instance, have answered that he was not nervous) and previous information provided in writing under a solemn declaration. |
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[29] In view of the above, it is my opinion that the case at bar does not deal with contradicting evidence which would trigger a duty to request supplementary information by the visa officer.
[30] Rule 307 of the Federal Court Rules, 1998 says:
| Respondent's affidavits
307. Within 30 days after service of the applicant's affidavits, a respondent shall serve and file any supporting affidavits and documentary exhibits.
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Affidavits du défendeur
307. Dans les 30 jours suivant la signification des affidavits du demandeur, le défendeur dépose et signifie les affidavits et les pièces documentaires qu'il entend utiliser à l'appui de sa position.
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[31] The visa officer had no obligation to file and serve any affidavit, it is up to him to decide. By not filing an affidavit, the respondent had not conceded anything. The certified tribunal record is evidence in support of the visa officer"s decision. |
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[32] I refer to Justice Strayer in Williams v. Canada, (1997), 212 N.R. 63, |
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There is ample authority that, unless the overall scheme of the Act indicates otherwise through e.g., an unlimited right of appeal of such an opinion, ... such subjective decisions cannot be judicially reviewed except on grounds such as that the decision-maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations... Further, when confronted with the record which was, according to undisputed evidence, before the decision-maker, and there is no evidence to the contrary, the court must assume that the decision-maker acted in good faith in having regard to that material. |
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...it is for the applicant for judicial review to bring forth evidence or argument as to why the decision is unlawful. This in no way diminishes the desirability of the decision-maker giving reasons but I fail to see how this can be turned into a legal duty in the absence of a statutory requirement. |
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[33] In Awwad v. The Minister of Citizenship and Immigration, IMM-1003-98 (F.C.T.D.) Justice Teitelbaum said:
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The onus is on an applicant to demonstrate a basis for the Court to intervene in a |
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decision of a visa officer. Both parties submit the evidence that they wish to. I am satisfied that there is no requirement for a respondent to file an affidavit of the visa officer if that is the decision taken by the respondent. |
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CONCLUSION
[34] The applicant has not convinced me that this Court should intervene.
[35] For the above reasons, the application for judicial review is dismissed.
[36] The parties have seven days from the date of this decision to suggest a serious question of general importance to be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
February 19, 1999
[37]
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