Date: 20080222
Docket: IMM-6746-06
Citation: 2008 FC 243
Ottawa, Ontario, February 22, 2008
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
SYLVIA
FERNANDES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This
is an application for a judicial review of the decision of a Visa Officer dated
October 12, 2006 refusing the Applicant’s application for a permanent resident
visa.
Facts
[2]
On
May 22, 2004 an Immigration Consultant submitted an application on behalf of
the Applicant for a permanent residence visa. Under the heading of “Knowledge
of English and other Languages” he suggested that the Applicant should be
assessed as her first language being English. He explained that she had studied
throughout in schools and college where English was the medium of instruction
and at her workplace (the last being in Dubai) the
language of communication was English. He pointed out that she had 15 years of
experience in her intended occupation and he gave details which showed quite an
extensive range of administrative experience. He described under the heading
“Adaptability” the education of her husband who was said to have a Bachelor of
Arts degree. He added as part of the Personal Background of the Applicant the
following:
She possesses strong problem solving
abilities and performs her duties effectively and efficiently. She has always
shown intense involvement in all of her jobs and has the capacity to sustain
hard work… . [She] is a very adaptable, motivated and resourceful individual,
she would have no problem in economically establishing herself in Canada.
In his conclusion he stated:
The units of assessment that Mrs. Sylvia
Margaret Irene Fernandes has received against the factor mentioned in s. 76 of
I&RPR do not reflect her true chances of becoming economically established
in Canada because of the facts highlighted in the above given heading –
Personal Background.
You are therefore requested to consider
the above mentioned facts by using positive discretion and approve Mrs. Sylvia
Margaret Irene Fernandes’ application for permanent residence in Canada under
the provisions of ss. 76(3) of I&RPR after verifying the highlighted facts in
a personal interview with Mrs. Sylvie Margaret Irene Fernandes.
He made a summary of his
proposed units of assessment. These would have totalled 77, the minimum
required being 67.
[3]
The
Applicant and her husband were interviewed by the Visa Officer. Notwithstanding
that the husband produced a diploma from Mysore University
in India the Officer
asked him about his University experiences (he graduated in 1982 and the
interview took place on September 21, 2006) and why he was working as a motor
mechanic when he had obtained a BA in political science and history. She was
not satisfied with the answers and therefore gave the Applicant no points for
“Adaptability” based on the spouse’s prospects.
[4]
In
her decision of October 12, 2006 the Officer set out the points assessed by
her. They were the same as the points proposed by the Applicant’s consultant
except that he recommended 16 points for the Applicant’s first official
language proficiency and the Officer awarded 12. He suggested four points for
adaptability and she ordered none. The net result was that the total points
awarded were 63, four points short of the required 67. She stated her
conclusion in two ways as follows:
You have not obtained sufficient points
to satisfy me that you will be able to become economically established in Canada. I have communicated my
concerns to you and taken your reply into consideration.
…
Following an examination of your
application, I am not satisfied that you meet the requirements of the Act and
the Regulations for the reasons explained above. I am therefore refusing your application.
[5]
The
Applicant seeks to have this decision set aside on two grounds: first that the
Officer failed to consider the exercise of discretion under subsection 76(3) of
the Immigration and Refugee Protection Regulations; and second, that the
Officer erred in not awarding four points to the Applicant under the
Adaptability factor in respect of her husband’s education and abilities.
Analysis
[6]
Subsection
76(1) and (2) of the Regulations set out the criteria for the application of
the point system to an applicant for permanent residence. Subsection 76(3) then
goes on to say:
|
(3) Whether or not the skilled worker has been
awarded the minimum number of required points referred to in subsection (2),
an officer may substitute for the criteria set out in paragraph (1)(a)
their evaluation of the likelihood of the ability of the skilled worker to
become economically established in Canada if the number of points awarded is
not a sufficient indicator of whether the skilled worker may become
economically established in Canada.
|
(3) Si le nombre de points
obtenu par un travailleur qualifié — que celui-ci obtienne ou non le nombre
minimum de points visé au paragraphe (2) — ne reflète pas l’aptitude de ce
travailleur qualifié à réussir son établissement économique au Canada,
l’agent peut substituer son appréciation aux critères prévus à l’alinéa (1)a).
|
There is nothing in the Officer’s decision to
indicate that she considered the question of whether a favourable discretion
should be exercised in respect of the Applicant. The Respondent relies on the
passage quoted above where the Officer says that she is not satisfied “that you
will be able to become economically established in Canada”. It is said that
this tracks certain language in subsection 76(3) and thus indicates some
attention to the exercise of the discretion provided there. But it is equally
true that it tracks language in subsection 76(1) setting out the point system
requirement. The passage quoted follows immediately after the statement that
the Applicant had not met the requisite number of points in her assessment and
this seems to be simply an affirmation of the result that the Applicant had not
met the requirements of subsection 76(1) and (2).
[7]
It
is clear that the purpose of subsection 76(3) is to allow an exception to be
made to the point system where the Applicant’s chances of becoming successfully
established in Canada is greater than is reflected in the points assessment:
see e.g. Yeung v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1174 at para. 15. To obtain such advantage the Applicant must
request the exercise of the discretion and must give some good reasons for it:
see Lam v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1239 at para. 5. However,
such reasons need not be elaborate and may consist of a more full description
of the Applicant’s background, education, and work experience and knowledge of
an official language of Canada: see Nayyar v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 342 at para. 12.
[8]
What
is being alleged here is the failure of the Visa Officer to consider the
question of whether the discretion should be exercised, not that it was
exercised wrongly. While a failure to exercise the discretion has often been treated
as a breach of procedural fairness (see e.g. Nayyar, supra, at
para. 8) it appears to me to involve a question of law: namely has the Visa
Officer taken every step that the law requires? In either case the standard of
review is correctness and that is a standard I will apply to this issue.
[9]
There
is no evidence in the record or in the decision that the Officer in this case
considered subsection 76(3) or the exercise of the discretion which it
authorizes. The Respondent referred me to many cases where this Court has said
that in the exercise of the discretion under subsection 76(3) with a negative
result it is not necessary for an officer to give reasons: Channa v. Canada
(Minister of Citizenship and Immigration), 1996 124 F.T.R. 290 at para. 18;
Feng v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1226 at para. 18; and Mamun
v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 141
at para. 11. I believe it is clear from these cases, however, that when it is
said that an officer need give no reasons for refusing to exercise a discretion
what is meant is that an officer need give no reasons for exercising the
discretion negatively. But it must be clear that the Visa Officer did consider
whether the discretion should be exercised in favour of the Applicant: see Tathgur
v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 1662 at paras. 29-35.
[10]
As
there was nothing to indicate that the Visa Officer here did consider
exercising the discretion under subsection 76(3) she erred in law and the
decision must be set aside.
[11]
With
respect to the Applicant’s assertion that the Visa Officer erred in not
awarding four points for Adaptability based on her husband’s education, this
would be a decision whose standard of review would be reasonability, involving
as it does a mixed question of law and fact. I am not satisfied on the evidence
that the Officer made an unreasonable decision in this respect. There is some
conflict in the evidence as to whether the Officer squarely raised her concern
with the Applicant and her husband as to the husband’s University education and
the Applicant’s affidavit is not sufficiently detailed to support her position.
While the Visa Officer’s concerns about the husband’s degree may seem open to
question, I am unable to say on the record before me that they were
unreasonable.
Disposition
[12]
The
decision of the Visa Officer of October 12, 2006 will be set aside and the
matter referred back to another visa officer for reconsideration. Counsel had
no questions to suggest for certification and none will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
decision of the Visa Officer of October 12, 2006 be set aside and the matter
referred back to another visa officer for reconsideration in accordance with
these reasons.
“B.L. Strayer”
Deputy Judge
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