Date: 19980226
Docket: IMM-1482-97
BETWEEN:
VLADIMIR DORIANOVITCH VALENTINOV
NATALKA SERGEEVNA VALENTINOVA
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of a visa officer made at the Canadian Embassy in Moscow, wherein the visa officer refused the applicants' application for permanent residence in Canada. The decision is dated the 13th of March, 1997.
[2] The applicants are citizen of the Republic of Kazakhstan. According to the letter from their solicitors covering the application for permanent residence, Vladimir Dorianovitch Valentinov is a "highly qualified Executive Secretary". He was interviewed by the visa officer on the 13th of March, 1997. Immediately prior to the interview, the visa officer's administrative assistant administered two tests to Mr. Valentinov in order to determine the level at which he read, wrote and comprehended english. The visa officer incorporated into her affidavit filed in this matter a brief text in english that Mr. Valentinov was requested to read before the administrative assistant. The visa officer attests that she reviewed her assistant's comments "...written and oral, about how the Applicant read the text and determined that he read well."
[3] The visa officer rejected the applicants' application. In her decision letter, she wrote:
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Our assessment of your qualifications was based on the occupation in which you are eligible to be considered and for which the units of assessment are the most beneficial to you. To qualify for immigration to Canada in the independent category, an applicant must obtain a minimum of 70 units of assessment, including at least one unit for the Occupational Factor. A summary of our assessment is included with this letter. |
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The summary of the assessment conducted in respect of the applicants indicates that Mr. Valentinov received a total of 69 units of assessment, including two units of assessment for knowledge of english. The visa officer attests:
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14 - Contrary to what is asserted in paragraph 8 of the affidavit of Patricia Romano filed in support of the Applicants' application for judicial review, at the time of my meeting with him, the Applicant was afforded ample opportunity to disabuse me of my concerns, but he failed to do so. |
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[4] Three issues were raised on behalf of the applicants on this application for judicial review: first, whether the respondent erred in law in the assessment of the applicants' application for permanent residence based on the laws, regulations, policies and guidelines in effect at the date of application; second, whether the respondent failed to give the applicants an opportunity to disabuse her of any improper assumptions or beliefs that she had and as such erred in law; and third, whether the respondent erred in improperly delegating to a third party, without consent from the applicants, the assessment of some or all of the language skills of Mr. Valentinov.
[5] The first issue was not extensively pursued before me. Subject to what follows, I am satisfied that the visa officer made no reviewable error.
[6] Counsel for the applicants urged that the visa officer erred in failing to give Mr. Valentinov, and his solicitors, an opportunity to disabuse her of her concerns. The visa officer attested, as indicated above, that an opportunity was provided to Mr. Valentinov. Affidavit evidence to the contrary was filed on behalf of the applicants. The applicants' only affidavit was that of a legal assistant in the employ of the applicants' solicitors.
[7] As noted in Nelson v. the Commissioner of Corrections (Can) et al.,1 by virtue of rules 1603(1) and 332(1) of the Federal Court Rules,2 persons other than the applicant can be the deponent of an affidavit in support of an application for judicial review but such an affidavit must be based on personal knowledge. Here, such was not the case. Much of the affidavit submitted on behalf of the applicants constitutes opinion and assertions of a hearsay nature. In particular, the affidavit was at best hearsay on the issue of whether or not an opportunity to respond was provided to Mr. Valentinov. Accordingly, I give no weight to the applicants' affidavit in that regard. As to providing the applicants' solicitors with an opportunity to respond, it was not in dispute before me that no such opportunity was provided. That being said, counsel for the applicants provided me no authority that any such obligation, in fairness or otherwise, exists. I find none.
[8] I turn then, to the issue of whether or not the visa officer improperly delegated her responsibility for assessing Mr. Valentinov's reading abilities in english.
Subsection 8(1) of the Immigration Regulations reads in part as follows:
| 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
....
[emphasis added]
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8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'une personne appartenant à la catégorie de la famille, d'un réfugié au sens de la Convention cherchant à se réétablir et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint :
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
....
[Je souligne]
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Factor 8 of Schedule I pertains to knowledge of the english and french languages, more specifically, to reading, writing and speaking one or both of those languages. Section 11.1 of the Regulation and paragraphs 8(1)(b) and (c) are not applicable on the facts of this matter.
[9] In Paracha v. The Minister of Citizenship and Immigration,3 I wrote:
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The standard of review of decisions such as that of the visa officer here, is well settled. In Boulis v. the Minister of Manpower and Immigration, Mr. Justice Abbott quoted from earlier authorities at page 877 to the following effect: |
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The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.4 |
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Clearly, the decision of the visa officer here under review is of a discretionary nature.
[10] That being said, I find nothing authorizing a visa officer to delegate her or his responsibility under subsection 8(1) of the Immigration Regulations. Where a decision-maker such as the visa officer here delegates her or his statutory responsibility, or a part thereof, without authority to do so, the visa officer commits a jurisdictional error.5
[11] I can reach no other conclusion but that there was, on the facts on this matter, as clearly shown on the face of the visa officer's affidavit, an unauthorized delegation of the visa officer's duty to assess Mr. Valentinov's ability to read english. In the circumstances, the visa officer's decision is based on jurisdictional error and must be declared invalid, notwithstanding that, if the visa officer had herself assessed Mr. Valentinov's ability to read english, the result might well have been the same.
[12] For the foregoing reasons, this application for judicial review will be allowed, the decision of the visa officer, being based in part on jurisdictional error, will be set aside and the matter will be referred back to the respondent for reconsideration.
[13] By agreement with counsel reached at the close of the hearing of this matter, I undertook to distribute draft reasons for my decision herein and to provide counsel with an opportunity to make written submissions on whether or not this matter raised a serious question of general importance that should be certified. Reasons in the foregoing form were distributed.
[14] Counsel for the applicant recommended against certification of a question. Counsel for the respondent recommended certification of a question in the following form:
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Did the visa officer unlawfully delegate her obligation under s.8(1)(a) of the Immigration Regulations, 1978 to "assess" the applicant's language skills under factor 8 of the Schedule I when she considered the results of a reading test administered by a third party? |
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[15] I am satisfied that the answer to the proposed question lies in the evidence that was before the Court in this matter and that in the result, the question cannot be said to be one of general importance. Certainly the issue of delegation of an obligation in law is a serious question of general importance but I am in agreement with submissions on behalf of the applicant that the law on that question is well settled.
[16] For the foregoing reasons, no question will be certified.
__________________________
Judge
Ottawa, Ontario
February 26, 1998
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1 (1996), 206 N.R. 180 (F.C.A.)(not cited before me)
2 C.R.C. 1978, c. 663 (as amended)
3 [1997] F.C.J. No. 1786 (Q.L.)
4 [1974] S.C.R. 875">[1974] S.C.R. 875
5 Muliadi v Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 at 218 (C.A.)
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