Date: 20030515
Docket: IMM-5423-01
Citation: 2003 FCT 630
Ottawa, Ontario, this 15th day of May, 2003
Present: The Honourable Madam Justice Sandra J. Simpson
BETWEEN:
FATEMAH and EBRAHIM BEHNAM
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS AND ORDER
UPON the applicants' application for judicial review of a decision of a Visa Officer dated October 19, 2001 in which he denied their applications for immigrant visas based on his assessment of Mrs. Behnam as the principal applicant;
AND UPON reading the materials filed and hearing the submissions of counsel for both parties in Toronto on Wednesday, May 7, 2003;
AND UPON determining that, in the absence of an affidavit from Mrs. Behnam dealing with whether or not she understood the Visa Officer's question, the applicants' submissions about an alleged error made by the Visa Officer in asking a vague question during his assessment of her personal suitability, cannot succeed. The question was "What have you done to prepare for your move to Canada" and Mrs. Behnam did not reply;
AND UPON determining that the Visa Officer did not err when he declined to assess Mr. Behnam as a principal applicant in spite of prior requests that he be so assessed because Mrs. Behnam was described as the principal applicant on her Application for Permanent Residence in Canada and identified herself as the principal applicant at the beginning of the applicants' interview with the Visa Officer in London, England on October 15, 2001 and because even though the Visa Officer could have assessed the male applicant as a matter of policy according to the Immigration Manual, chapter OP1, section 4.1, he was only required to interview one spouse as a principal applicant by reason of subsection 8(1) of the Immigration Regulations, 1978 (the "Regulations"). See - Rosario v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 101; Zamyadi v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 105; Mozumder v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 327 (F.C.T.D.); Nanji v. Minister of Employment and Immigration (1993), 66 F.T.R. 158;
AND UPON determining that the Visa Officer did not err in law in his award of zero points to the applicant for her English language abilities based on her interview and the reading and writing tests she completed;
AND UPON determining that the applicants' requests for the exercise of positive discretion were not ignored and that the Visa Officer was not legally obligated either to recommend the exercise of positive discretion under subsection 11(3) of the Regulations or to give reasons for his decision not to make such a recommendation. See - Channa v. Canada (Minister of Citizenship and Immigration) (1996), 124 F.T.R. 290 (T.D.);
AND UPON determining that, because Mrs. Behnam was given ten units of assessment for her family business job offer, the Visa Officer did not err in law when he gave her four units of assessment for personal suitability and failed to automatically give her the maximum number of units of assessment for personal suitability based on the same job offer;
AND UPON determining that, when Mr. Godfrey, who is an Immigration Program Manager, sent faxes to the applicants on October 16 and October 17, 2001, he did not provide decisions which could be the subject of judicial review;
AND UPON concluding that the first question posed for certification by the applicants in this case is not relevant since the issue it raises was not argued before me and because this matter is not being referred back for a fresh determination. The question was:
Is subsection 350(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227 ultra vires of the Immigration and Refugee Protection Act, S.C. 2001, c.27. It reads:
| 350(3) Skilled workers and self-employed persons - If a decision or an act of the Minister or an immigration officer under the former Act in respect of a person described in subparagraph 9(1)(b)(i) or paragraph 10(1)(b) of the former Regulations is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before the date of the coming into force of this section, the determination shall be made in accordance with subsections 361(3) and (5) of these Regulations.
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350(3) Travailleurs qualifiés et travailleurs autonomes - Il est disposé conformément aux paragraphes 361(3) et (5) du présent règlement de toute décision ou mesure prise par le ministre ou un agent d'immigration sous le régime de l'ancienne loi à l'égard de la personne visée au sous-alinéa 9(1)b)(i) ou à l'alinéa 10(1)b) de l'ancien règlement qui est renvoyée par la Cour fédérale ou la Cour suprême du Canada pour nouvel examen et dont il n'a pas été disposé avant l'entrée en vigueur du présent article.
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AND UPON determining that, because the law is clear on this issue, it is not appropriate to certify the following question:
Where requested by the Applicants, is the visa officer under a duty to assess both of them to see whether they meet the requirements under subsection 8(1)(a) of the Regulations?
AND UPON determining that there is no basis for an award of costs to the applicants.
NOW THEREFORE THIS COURT ORDERSthat this application is hereby dismissed.
"Sandra J. Simpson"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5423-01
STYLE OF CAUSE: FATEMAH and EBRAHIM BEHNAM
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MAY 7, 2003
REASONS FOR ORDER BY: SIMPSON J.
DATED: WEDNESDAY MAY 7, 2003
APPEARANCES BY: Ms Mary Lam
For the Applicant
Ms Neety Logsetty
For the Respondent
SOLICITORS OF RECORD: Ms Mary Lam
Barrister & Solicitor
3-206 Bloor Street West
Toronto, Ontario
M5S 1T8
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030507
Docket: IMM-5423-01
BETWEEN:
FATEMAH and EBRAHIM BEHNAM
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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