Date: 20070223
Docket: IMM-57-06
Citation: 2007 FC 199
BETWEEN:
DEEPAK
NAYYAR
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 13th of February, 2007 of an
application for judicial review of a decision of an Officer at the High
Commission of Canada in New Delhi, India wherein the Officer
denied the Applicant’s application for permanent residence in Canada. The
decision under review is dated the 29th of September, 2005. The
Applicant alleges that the decision was only received by his immigration
consultant on or about the 20th of October, 2005.
BACKGROUND
[2]
The
Applicant is a citizen of India. On his behalf, an immigration consultant
filed an application for permanent residence in Canada as a member
of the economic class. The Applicant requested that he be assessed in the
occupation of “purchasing officer”.
[3]
The
Applicant’s application came forward for assessment in the transition period
between the application of the former Immigration Act and the application
of the Immigration and Refugee Protection Act. In the result, his
application was assessed under both legal regimes. Under the Immigration
Act and related Regulations, the Applicant received sixty-six (66)
units of assessment when seventy (70) units of assessment were required to
qualify for immigration to Canada. Under the Immigration and Refugee
Protection Act and Regulations regime, the Applicant received
sixty-six (66) units of assessment when sixty-seven (67) units of assessment
were required to qualify. In the result, without any indication on the
tribunal record that consideration was given to exercising positive discretion
or positive substituted evaluation in the Applicant’s favour, his application
was rejected.
[4]
The
Applicant’s application for permanent residence, as filed by an immigration
consultant on his behalf, concluded with the following penultimate paragraph:
Although not
anticipated, if Mr. Deepak Nayyar scores less than 70 units of assessment, it
is respectfully submitted that such a score would not reflect Mr. Deepak
Nayyar’s prospects of becoming successfully established in Canada. We
therefore request that you exercise positive discretion under s. 11(3) of the Immigration
Regulations, 1978 if Mr. Deepak Nayyar scores less than 70 units of
assessment.
The reference in the quoted paragraph to
the Immigration Regulations, 1978 and to subsection 11(3) of those Regulations
is to the legal regime that applied at the time the former Act and
related Regulations were in force. The Immigration and Refugee and
Protection Act and related Regulations only became effective almost
two (2) years after the application was filed.
THE ISSUES
[5]
Only
two issues were before the Court on this application for judicial review:
first, whether the Applicant’s application for judicial review is moot because
it was filed out of time and leave to file late was not granted by the Court at
the time leave to proceed with the application for judicial review was granted,
notwithstanding that the application for leave and for judicial review included
a request for extension of time to file; and second, whether the Officer whose
decision is under review erred in a reviewable manner in failing to consider,
or to record her consideration of, the Applicant’s request for the exercise of
positive discretion or positive substituted evaluation.
ANALYSIS
Extension of time to
file
[6]
In
Khalife v. Canada (Minister of
Citizenship and Immigration), my colleague Justice Mosley
dealt with the issue of extension of time to file in paragraphs 12 to 16 of his
reasons. He wrote:
But whether the applicant was aware of the decision
and made a timely decision to seek judicial review was now moot, counsel
argued, as a judge of this Court had granted leave for the application for
judicial review to be heard. While the order granting leave is silent on the
question of delay, the applicant submits that the court hearing the application
should assume that the judge who granted leave also granted an extension of
time for the application to be filed, pursuant to paragraph 72(2)(c) of the
Act, as that is what is required by the rules.
Subsection 6(2)…of the Federal Court Immigration
and Refugee Protection Rules…(The Rules) provides that a
request for an extension of time shall be determined at the same time, and on
the same materials, as the application for leave. Moreover, the applicant
submits, the respondent's memorandum of fact and law submitted in response to
the leave application, had expressly objected to the late filing. The judge
granting leave must be presumed to have directed his or her mind to that
objection and decided not to accept it, or so it is argued.
While this argument is inventive, I cannot agree that
the question is moot in this case. Subsection 6(1)…of the Rules requires that a
request for an extension of time shall be made in the application for leave in
accordance with Form IR-1 set out in the Schedule…to the Rules. No such request
was made by the applicant in his application for leave. In my view, even if
leave has been granted, delay in bringing the application remains a live
issue to be dealt with by the judge hearing the matter and may be dispositive
of the application. There will be circumstances in which a decision as to
whether an extension should be granted can only be determined at a hearing. The
limited amount of time available to a judge considering whether to grant or
deny leave does not permit a thorough examination of the reasons why an
extension may be justified. I am not prepared to conclude that silence on the
matter in the leave order should be taken as acquiescence to an extension,
particularly where the applicant has not made the request in his application.
In any event, the Court retains the discretion
throughout the consideration of an application to grant an extension of time
where it deems it necessary in order to do justice between the parties:… .
In the particular circumstances of this case, I do not
consider that it would do justice to the application to dispose of it without
consideration of the merits. Accordingly, I will grant the extension the
applicant should have requested and treat the application as having been made
within the time limit.
[citations omitted, emphasis added]
[7]
In
this matter, a request for an extension of time to file was included in the
application for leave and judicial review. It was not dealt with in the order
granting leave. I adopt Justice Mosley’s conclusion that this Court retains
discretion throughout the consideration of an application for judicial review
to grant an extension of time where it deems it necessary in order to do
justice between the parties. Like Justice Mosley, I am satisfied that, in the
particular circumstances of this case, it would not do justice to the
application to dispose of it without consideration on the merits. Once again
like Justice Mosley, I will grant an extension of time to file to the date of
actual filing. Neither counsel before me took exception to this course of
action.
Standard of Review
[8]
In
Singh v. The Minister of Citizenship and Immigration,
my colleague Justice Blais noted at paragraph 8 of his reasons that it is well
established in law that the decision of a Visa Officer whether or not to grant
a permanent resident visa is a discretionary decision based essentially on a
factual assessment. He goes on, however, at paragraph 10 of his reasons, to
note:
However, where concerns
are raised over an alleged breach of procedural fairness, the proper standard
of review is correctness. If this Court determines a breach of procedural
fairness occurred, it must return the decision to the first instance
decision-maker for a re-determination… .
[citation
omitted]
I am satisfied that the allegation here
that the Officer failed to consider the exercise of positive discretion or
substituted evaluation when specifically requested to do so in the Applicant’s
application for permanent residence is an allegation of a breach of procedural
fairness. I will therefore review that allegation on a standard of review of
correctness.
Failure to Consider the
Exercise of Positive Discretion or Substituted Evaluation
[9]
I
have earlier quoted the paragraph from the application filed on behalf of the
Applicant in which the exercise of positive discretion is requested in the
event that the Applicant is not successful in his application on the basis of
the units of assessment awarded in his favour. It was not in dispute before
the Court that: first, there is nothing on the face of the Officer’s decision
or of the CAIPS notes supporting that decision that the Officer considered the
exercise of positive discretion or substituted evaluation notwithstanding the
fact that the Applicant was within one (1) unit of assessment from a successful
score under the Immigration and Refugee Protection Act and related Regulations
assessment; second, there is absolutely no evidence before the Court that the
Applicant reiterated his request for an exercise of positive discretion or
substituted evaluation during his interview with the Officer before the
decision under review was arrived at; and third, notwithstanding the fact that
a request for reconsideration of the decision under review was made, that
request made no reference to the question of exercise of positive discretion or
substituted evaluation.
[10]
In
Yan v. Canada (Minister of Citizenship and Immigration), my
colleague Justice Gauthier wrote at paragraphs 16 to 18 of her reasons:
[The Applicant] relies
on the decision of this Court in Gangadeen v. Canada (M.C.I.)… where
McKeown J. held following the decision of McGillis J. in Savvatee v. M.C.I….
that once a specific request to consider subsection 11(3) [the positive
discretion provision of Regulations under the former Immigration Act] is
made, the visa officer cannot ignore it, and this even if the reasons given by
the applicant to justify the exercise of the discretion are not very clear.
Furthermore,
the applicant submits that such a
breach of procedural fairness is a reviewable error entitling this Court to quash
the decision whether or not it is material to the outcome.
The Court agrees
with the respondent that the visa officer is not obliged to justify in her
reasons [for] her decision not to exercise her discretion under subsection
11(3) of the Regulations, but that does not mean that she need not consider the
specific request made by [the applicant].
[citations omitted]
[11]
On
the facts of this matter, counsel for the Respondent urged that the Applicant
gave no reasons to justify the exercise of positive discretion or substituted
evaluation in his favour but rather simply made a bald request for the exercise
of such discretion or evaluation. By reference to the foregoing quote, on the
facts of this matter, counsel urged, it was not a case where the reasons given
were not very clear, rather they were non-existent. This, counsel urged,
failed to fulfil the criteria specified by Justice Rothstein, then of this
Court, in Lam v. Canada (Minister of
Citizenship and Immigration) where he
wrote at paragraph 5 of his reasons:
…However, if an
applicant wishes the visa officer to exercise discretion under subsection
11(3), it would seem that some form of application would be required. While
there is no prescribed wording to which an applicant must adhere, I would think
the application would at least have to indicate some good reasons why a
units of assessment determination would not reflect the chances of successful
establishment in Canada by the applicant. There was no such
application here.
[emphasis
added]
Counsel for the Respondent urged that this
matter is on all fours with the situation that was before Justice Rothstein.
[12]
I
disagree. In the application for a permanent resident visa filed on behalf of
the Applicant, the Applicant’s immigration consultant sets out at some length
the Applicant’s personal background and an assessment of the units of
assessment that the consultant thinks are justified for the Applicant, and
provides a rationale for the units of assessment that he urges in respect of
the education and training factor, the work experience factor, the knowledge of
English and other languages factor and the personal suitability factor. He
then goes on in the paragraph immediately preceding the request for exercise of
positive discretion to conclude:
It is our respectful
opinion that since Mr. Deepak Nayyar meets the requirements outlined in s.
9(1)(a) and s. 9(1)(b)(i) of the Immigration Regulations 1978, he should be
issued an immigrant visa… .
[13]
By
reference to the words of Justice Rothstein quoted above, I am satisfied that
the immigration consultant’s presentation constitutes the “some good reasons”
why a units of assessment determination made by the Officer that did not reach
the threshold justifying the issuance of a permanent resident visa would not
reflect the chances of successful establishment in Canada by the Applicant and
would therefore justify the exercise of positive discretion or positive
substituted evaluation.
CONCLUSION
[14]
Based
on the foregoing brief analysis, I am satisfied that the decision here under
review was made in breach of procedural fairness and must therefore be set
aside. This application for judicial review will be allowed and the
Applicant’s application for permanent residence in Canada will be
referred back to the Respondent for consideration of the exercise of positive
discretion under the former Immigration Act and Regulations or
the exercise of positive substituted evaluation under the Immigration and
Refugee Protection Act and Regulations by a different Officer.
CERTIFICATION OF A
QUESTION
[15]
At
the close of the hearing on this application for judicial review, counsel were
advised of the Court’s conclusion. Neither counsel recommended certification
of a question. The Court itself
is satisfied that no serious question of
general importance arises on this matter that would be determinative on an
appeal from the decision herein. No question will be certified.
“Frederick
E. Gibson”
Ottawa, Ontario.
February
23, 2007
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