Date: 20080609
Docket: IMM-3711-07
Citation: 2008 FC 722
Ottawa, Ontario, June 9,
2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
BEHNOUSH
ESLAMIEH
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Eslamieh is an Iranian citizen whose application for permanent resident status
in the Skilled Worker category was rejected on July 30, 2007. She had scored 66
points out the possible 100, short by one point of the total required by the Minister
pursuant to subsection 76(2) of the Immigration
and Refugee Protection Regulations, SOR/2002-227.
[2]
Ms.
Elsamieh contends that the Visa Officer should have considered her discretion
to grant the applicant permanent resident status despite her failure to reach
the threshold set by the Minister pursuant to subsection 76(3) of the IRPA,
which reads as follows:
|
(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).
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[3]
Given
that the decision of the Visa Officer is highly discretionary, it is to be
reviewed on a standard of reasonableness with great deference shown by the
Court: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
S.C.J. No. 9 at paragraph 53.
[4]
Visa
Officers have the authority to consider an alternative evaluation under
subsection 76(3) by their own motion, as held by my colleague Justice Carolyn Layden-Stevenson in Zheng v. Canada
(Minister of Citizenship and Immigration), 2002 FTR 1115, 26 Imm. L.R. (3d) 72. That said, it is clear from the
jurisprudence that they are under no obligation to exercise that discretion
unless specifically requested to do so. The applicant concedes that she did not
make such a request and I cannot therefore find that the Visa Officer was
unreasonable in her decision.
[5]
Ms.
Eslamieh raised a question of natural justice inferentially in her reply brief
and at the hearing. She asserted that the Officer should have considered her
application in the context of her self-representation and extremely narrow failure
to reach the point target. From that perspective, the Officer had an obligation
in the name of fairness to consider her discretion under subsection 76(3).
[6]
While
I am sympathetic to this contention, it is trite law that the applicant is
restricted, also for reasons of natural justice and procedural fairness, to
arguing issues raised in her application for leave. She sought leave solely on
the ground that the officer had erred in law. I cannot now substitute a ground
which was not contained therein.
[7]
For
the above reasons, this application is dismissed. No questions of general
importance were proposed.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application for
judicial review is dismissed. No questions are certified.
“Richard
G. Mosley”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3711-07
STYLE OF CAUSE: BEHNOUSH
ESLAMIEH
AND
THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: June
4, 2008
REASONS FOR JUDGMENT
AND
JUDGMENT: MOSLEY
J.
DATED: June
9, 2008
APPEARANCES:
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Wennie Lee
|
FOR THE APPLICANT
|
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Deborah
Drukarsh
|
FOR THE RESPONDENT
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SOLICITORS
OF RECORD:
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WENNIE LEE
Lee &
Company
Toronto,
Ontario
|
FOR THE APPLICANT
|
|
JOHN H. SIMS,
Q.C.
Deputy
Attorney General of Canada
Toronto, Ontario
|
FOR THE RESPONDENT
|
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