Date: 20030603
Docket: IMM-820-02
Citation: 2003 FCT 699
Ottawa, Ontario, this 3rd day of June, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
MOHAMMAD SOURI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Souri is a successful fruit and flower farmer from Iran. He is hoping to become a permanent resident of Canada and run a similar operation here, perhaps in the Niagara area. He applied for permanent residency on the strength of his qualifications as a self-employed nursery farmer. A visa officer in Paris evaluated his application and awarded him 66 points, just short of the 70 points she felt he required. He argues that the officer made two serious errors - one by requiring 70 points instead of 65, and the other for failing to assess his qualifications in his intended occupation. He asks the Court, by way of this application for judicial review, to order a re-consideration of his file.
I. Issues
[2] There are two issues that arise in this case. The first relates to the interpretation of the provisions of the Immigration Regulations, 1978 that apply to applicants who already have close relatives in Canada - so-called "assisted relatives". The second involves the obligation of a visa officer to evaluate an application according to the job classification specified by the applicant.
A. Assisted Relatives
[3] The Immigration Regulations, 1978 state that visa officers should grant applications from "assisted relatives" if they score at least 65 points in the assessment process (s. 10(1)(b), as set out below as an Annex). This provision gives a slight edge to these applicants over others, who generally have to meet a 70-point threshold. If this provision applies to Mr. Souri, he should have succeeded in his application as he achieved 66 points.
[4] The Regulations define who an "assisted relative" is. The definition includes brothers and sisters, sons and daughters, aunts and uncles, and so on, of adult citizens or permanent residents of Canada (s. 2). Mr. Souri has a brother-in-law in Vancouver. The definition does not extend so far as that, but the policy of the respondent is to accept such a relationship as sufficient (see Policy for Bonus Points for Assisted-Relatives, OP 00-22, June 8, 2000). This is not an issue in this case.
[5] The real reason Mr. Souri was excluded from the "assisted relative" category was because the visa officer who assessed his application concluded that, according to the Regulations, self-employed persons are ineligible to be considered "assisted relatives."
[6] Counsel for the Minister argued that the assisted relative "discount" does not apply to Mr. Souri because another provision of the Regulations contains a specific rule that applies to self-employed persons. Counsel referred me to subparagraph 9(1)(b)(i) (as set out below in an Annex) which applies to self-employed persons, and it does indeed stipulate that applicants must obtain 70 points in order to be successful. However, the opening words of subsection 9(1)clearly state that it does not apply to "assisted relatives". As I read that provision, self-employed persons who are not "assisted relatives" must obtain 70 points. It does not say that self-employed persons cannot be considered "assisted relatives".
[7] I realize that a contrary conclusion was reached in Cao v. Canada (Minister of Employment and Immigration), [2000] F.C.J. No. 1077 (QL) (T.D.) at para. 38. However, I note that the issue was not essential to the result in that case and, accordingly, it was unnecessary to address it in any detail.
I conclude that a legal error was made by the visa officer. Mr. Souri's application should have been treated as being from an "assisted relative" and he should have succeeded.
B. The Officer's Duty to Evaluate the Applicant in his Chosen Occupation
[8] When an applicant specifically requests to be evaluated in a particular profession or trade, the visa officer has an obligation to do so: Uy v. Canada (Minister of Citizenship and Immigration), [1991] 2 F.C. 201 (C.A.); Issaeva v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1679 (QL) (T.D.); Crisologo v. Canada (Minister of Citizenship and Immigration), 2002 FCT 382, [2002] F.C.J. No. 484 (QL) (T.D.).
[9] Mr. Souri, in a letter drafted by his lawyer and which accompanied his application, specifically asked to be considered in the category of Self-Employed Nursery Farmer (NOC 8254). However, the visa officer evaluated Mr. Souri as a Fruit Farmer (NOC 8251.0). In her affidavit, she explained why she did so. She said that Mr. Souri's application (as opposed to the accompanying letter) stated that his intended occupation was "Self-Employed/Farmer" - in other words, his application was not specific. She also stated that she felt Mr. Souri's qualifications matched the criteria for a Fruit Farmer better than those applicable to a Nursery Farmer. According to the official description, a Nursery Farmer supervises "the activities of nursery and greenhouse staff". The visa officer noted that Mr. Souri had not mentioned in his application that he intended to hire staff.
[10] As mentioned, the letter accompanying Mr. Souri's application was very specific. In my view, it created a duty to evaluate Mr. Souri's qualifications as a Nursery Farmer. In addition, with respect to the issue of supervising staff, the letter made clear that Mr. Souri employed a full-time staff of six on his 2.5 acre farm and hired up to 60 persons on a seasonal basis. The visa officer states in her affidavit that Mr. Souri told her that he intended to buy a few acres of land in Canada and farm them on his own, but her notes of the interview with Mr. Souri do not reflect that. Further, the occupational description relied on by the visa officer equally refers to "supervising and hiring farm workers". There is really no difference between the two descriptions in that respect and, therefore, no basis for failing to consider Mr. Souri in his preferred occupation of Nursery Farmer.
II. Disposition
[11] For the reasons above, the visa officer fell into reviewable error in the evaluation of Mr. Souri's application. Accordingly, this application for judicial review is allowed.
[12] Mr. Souri seeks an order that his application be assessed in accordance with the former Immigration Act and Regulations, rather than the current legislation. However, his counsel offered no explanation as to the power of this Court to make such an order in the face of the transitional rule in s. 350 of the Immigration and Refugee Protection Regulations. I will therefore allow counsel an opportunity to make written submissions on this issue. Any submissions should be filed within five (5) business days of the issuance of these reasons, with an additional three (3) business days for any response the respondent may wish to make. While no question of general importance was proposed for certification at the hearing, the parties may address this matter, if they wish, in their supplementary materials.
JUDGMENT
IT IS HEREBY ADJUDGED THAT:
1. The application for judicial review is allowed.
2. Counsel for the applicant is allowed five (5) business days from the issuance of this judgment to make written submissions on the matters referred to in para. [12] of the reasons for judgment, with an additional three (3) business days for any response the respondent may wish to make.
"James W. O'Reilly"
J.F.C.C.
| 9. (1) Subject to subsection (1.01) and section 11, where an immigrant other than a member of the family class, an assisted relative or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
...
(b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8, and
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at lest 70 units of assessment,
10. (1) Subject to subsections (1.1) and (1.2) and section 11, where an assisted relative makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the assisted relative and accompanying dependants of the assisted relative if
...
(b) in the case of an assisted relative who intends to reside in a place other than the Province of Quebec, on the basis of an assessment made in accordance with section 8, the assisted relative is awarded at least 65 units of assessment;
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9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toutes personne à charge qui l'accompagne si :
[...]
b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8 :
(i) dans le cas d'un immigrant, autre qu'un entrepreneur, un investisseur, ou un candidat d'une province, il obtient au moins 70 point d'appréciation,
10. (1) Sous réserve des paragraphes (1.1) et (1.2) et de l'article 11, lorsqu'un parent aidé présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'au personnes à charge qui l'accompagne si les conditions suivantes sont réunies:
[...]
b) dans le cas du parent aidé qui entend résider au Canada ailleurs qu'au Québec, sur la base de l'appréciation visée à l'article 8, le parent aidé obtient au moins 65 points d'appréciation;
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FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-820-02
STYLE OF CAUSE: MOHAMMAD SOURI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, MAY 1, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: JUNE 3, 2003
APPEARANCES BY:
Mr. Randolph Hahn FOR THE APPLICANT
Ms. Angela Marinos FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Randolph Hahn
Barrister and Solicitor
30 St. Clair Ave. West
Suite 606
Toronto, Ontario M4V 3A1 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
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