Date: 20030529
Docket: IMM-1538-02
Ottawa, Ontario, this 29th day of May, 2003
Present: The Honourable Mr. Justice Pinard
Between:
MIRJANA MAJINSKI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review with respect to the decision of Visa Officer Martin Levine of the Canadian Embassy in Vienna, Austria dated February 27, 2002, in which he refused the applicant's application for permanent residence in Canada because she did not meet the requirements for immigration to Canada under subsection 8(1) of the Immigration Regulations, 1978, is dismissed.
JUDGE
Date: 20030529
Docket: IMM-1538-02
Neutral Citation: 2003 FCT 628
Between:
MIRJANA MAJINSKI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
This is an application for judicial review with respect to the decision of Visa Officer Martin Levine (the "officer") of the Canadian Embassy in Vienna, Austria dated February 27, 2002, in which he refused the applicant's application for permanent residence in Canada because she did not meet the requirements for immigration to Canada under subsection 8(1) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations").
The applicant is a citizen and resident of Yugoslavia. On February 11, 2002, she filed an application for permanent residence under the independent category and asked to be assessed as a "salesman".
The officer based his rejection of the application on the following grounds:
- the applicant received a total of 49 points when assessed as a retail salesperson. In order to be eligible for an interview, applicants are required to achieve at least 60 points; and
- the applicant, therefore, comes within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2.
The respondent takes issue with the applicant's introduction of new evidence before the Court that elaborates on and contradicts the record that was before the officer. The respondent correctly submits that any evidence which was not before the officer should not be taken into consideration by this Court in its assessment of the application for judicial review (LGS Group Inc. v. Canada (A.G.), [1995] 3 F.C. 474 (T.D.) and Asafov v. Minister of Employment and Immigration (May 18, 1994), IMM-7425-93 (F.C.T.D.)). Therefore, the documents attached as Exhibit "A" to the applicant's affidavit will not be considered.
The applicant submits that the standard of review of decisions of visa officers is reasonableness simpliciter. However, it has been repeatedly stated that the standard of review is patent unreasonableness: there must be an error of law apparent on the face of the record or a breach of the appropriate duty of fairness before a reviewing Court will intervene in a visa officer's decision (see Hajariwala v. Canada (M.E.I.), [1989] 2 F.C. 79 (T.D.) and Noman v. Minister of Citizenship and Immigration (November 12, 2002), IMM-5721-00, 2002 FCT 1169).
The applicant submits that the officer erred when he awarded her only 49 points without considering all the occupations for which she was qualified.
In her application for permanent residence, the applicant stated only that her intended occupation in Canada was "salesman", without indicating a specific National Occupational Classification ("NOC"). The officer indicates incorrectly in his affidavit that the applicant applied in the Independent category of Retail Salesperson. This mistake of fact led him to assess the applicant solely under NOC 6421.0, Retail Salesperson. The applicant submits that he should also have assessed her under 6411.0, Sales Representatives, Wholesale Trade (Non-technical) and 6221.0, Technical Sales Specialists, Wholesale Trade, since he did not inquire what type of salesperson the applicant is or intends to be. However, even had the officer not committed the error, his failure to assess the applicant under NOC 6411.0 and 6221.0 would not have been a mistake of law, despite the reasoning in Hajariwala, supra, wherein this Court stated at pages 82-83:
. . . The affidavit consists of twenty-five paragraphs and provides a complete description of the process at issue here, including the qualifications and responsibilities of the visa officers abroad. I quote paragraph 15:
15. Alternate occupations will also be considered by the officers where there is the possibility that the applicant is qualified for and prepared to follow that occupation.
I take this to be a very important expression of fundamental fairness to the applicant. Counsel for the applicant asks me to find that it imposes upon the visa officer the obligation to assess alternate occupations inherent in the applicant's work experience, whether the applicant puts them forward or not. I am not prepared to go that far, but I do find that it puts beyond question the responsibility of the visa officer to do so where, as here, the applicant seeks it by designating alternate occupations in the application.
(Emphasis is mine.)
The applicant's use of the term "salesman" to describe her intended occupation may be broad enough to include all three categories to which she refers, thereby "designating" the alternate occupations to be considered by the officer. However, there was no evidence before the officer with respect to the applicant's work experience or qualifications in these alternate or inherent occupations (Parmar v. Canada (M.C.I.) (1997), 139 F.T.R. 203). The only supporting evidence submitted by the applicant is entirely in a language other than English or French, therefore, the officer could not have been expected to consider it. The onus was on the applicant to provide all the required evidence or information in one of Canada's official languages.
Finally, the applicant submits that the officer fettered his discretion and failed to observe a principle of natural justice, procedural fairness or other procedure that he was required to follow, in failing to exercise his "positive discretion" to overcome the alleged points shortage. He also failed to consider the humanitarian and compassionate considerations which are readily apparent on the file. The evidence which the applicant invites this Court to consider in support of these arguments is that pertaining to previous attempts by the applicant to immigrate to Canada and join her aunt and uncle. This evidence was not before the officer when he made his decision. The officer has stated in his affidavit that he believed his assessment accurately reflected the applicant's likelihood of becoming successfully established in Canada, and, accordingly, there was no reason to exercise his discretion pursuant to subsection 11(3) of the Regulations. There is no evidence in the file which contradicts his position. Similarly, the officer was under no duty to consider humanitarian and compassionate grounds for allowing the application, since the applicant had not requested an exemption on those grounds.
Although the officer committed an error of fact in assessing the applicant's application for permanent residence, his decision would not have been different had he not done so. The officer's decision was not patently unreasonable, therefore, the application for judicial review is rejected.
JUDGE
OTTAWA, ONTARIO
May 29, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1538-02
STYLE OF CAUSE: MIRJANA MAJINSKI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 1, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: May 29, 2003
APPEARANCES:
Mr. Moses Kajoba FOR THE APPLICANT
Mr. Keith Reimer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kajoba & Company FOR THE APPLICANT
Vancouver, British Columbia
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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