Date: 20040317
Docket: IMM-1770-02
Citation: 2004 FC 412
BETWEEN:
HAO BING WEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
Summary
[1] This is the case of an applicant for permanent residence who was one (1) unit short of the sixty-five (65) units required and who seeks to challenge the visa officer's assessment of the points awarded for "personal suitability" and the failure to exercise positive discretion to overcome the points initially awarded.
Background
[2] Hao Bing Wen ("Wen"), in his application for judicial review, requests that the March 8, 2002 decision of the Second Secretary Immigration of the Canadian Embassy in Beijing (the "visa officer") denying his application for permanent residence be quashed and for an order directing the Respondent to process the application for permanent residence under the more favourable of the Immigration Act, R.S.C. 1985, c. I-2 or the Immigration and Refugee Protection Act, S.C.2001, c. 27.
[3] Wen is a citizen of the People's Republic of China. He applied for permanent residence status under the Independent Selection Criteria (Assisted Relative) as a Cook/Chef.
[4] The Applicant holds a certificate as a Secondary Technical Rank Chinese Cuisine Cook and has worked as a cook at a restaurant in Kaiping City since 1985.
[5] He had a job offer at a large well-established Chinese restaurant in the Hamilton area which paid $700. per week and included food and accommodation.
[6] On February 28, 2002, Wen and his wife attended at the Embassy for his interview. The interview is summarized in the Computer Assistance Immigration Processing System ("CAIPS"), the notes of the visa officer. These notes form part of the Tribunal Record.
[7] Wen was asked a number of questions related to his personal suitability including questions about his motivation, resourcefulness, initiative, adaptability, sources of information about living and working conditions in Canada and his ability to successfully establish himself in Canada.
[8] The visa officer advised Wen that his response to questions about Toronto and Canada and about the steps he would take to settle successfully were general and not realistic. He stated that on the matter of "personal suitability" Wen was awarded five (5) units out of a possible ten (10).
[9] The visa officer then asked Wen to provide further information relating to how the points assessed did not accurately reflect his ability to successfully establish himself in Canada. This inquiry was directed at the request to exercise positive discretion particularly because the units awarded were so close to the minimum sixty-five (65) units required.
[10] Wen did not provide any information to cause the visa officer to conclude that he should exercise positive discretion because there was nothing new or different to consider.
[11] Shortly thereafter, Wen's immigration representative wrote again requesting the exercise of positive discretion but without providing anything new or showing that the units awarded did not accurately reflect Wen's and his dependents' ability to successfully establish themselves in Canada.
[12] As a result, Wen's score of five (5) units for personal suitability stood; the total award of sixty-four (64) units remained unaltered; and, his application was denied.
[13] Wen has brought this application for judicial review of the visa officer's decision. The Applicant challenges both the assessment and the refusal to exercise positive discretion.
Analysis
[14] The Applicant grounds his challenge of the visa officer's overall assessment of sixty-four (64) units on one factor, personal suitability, of the nine factors to be considered by a visa officer. In effect, the Applicant claims that the visa officer failed to give six (6) units for that factor rather than the five (5) units awarded.
[15] The Applicant's position can be summarized as being that the visa officer was correct in units awarded for eight (8) out of nine (9) factors and was correct on the 9th factor "but for" the failure to award one (1) extra unit out of the ten (10) units available.
[16] Before dealing with the alleged errors by the visa officer, the correct standard of review must be determined.
[17] This Court has previously held that discretionary decisions of the personal suitability factor are subject to the patently unreasonable standard of review, Kompanets v. Canada (Minister of Citizenship and Immigration) (2000) 196 F.T.R. 61.
[18] The Applicant complains that the visa officer took into account irrelevant considerations such as the cost of living for a family in Toronto; that the Applicant had never had to look for a job; what plans the Applicant had or steps considered if he were to lose his job.
[19] The Applicant says that costs in Toronto are irrelevant for a person living in the Hamilton area; that job security should not be a negative; that job loss is irrelevant given the high demand for Chinese cooks.
[20] I cannot find that these questions are entirely irrelevant to either Wen's knowledge of Canadian costs (the actual question referred to the Toronto area) or his appreciation or lack thereof that a family of three (3) in Toronto living on $15,000. would have a difficult time; his lack of experience in job searching or his knowledge of how to cope if or when his job circumstances change.
[21] There is a rational connection between the questions asked and the criteria to be examined. The question of weight is one that is within the responsibility of the visa officer and I cannot find that his actions or decision is patently unreasonable, Legault v. Canada (Minister of Citizenship and Immigration) 2002 FCA 125.
[22] The Applicant contends that as a matter of law, the visa officer should give a broader application of personal suitability where an Applicant is close to obtaining the requisite units (see Maniruzzaman v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 612).
[23] I do not agree that Manirussaman, supra, stands for this proposition. The case holds that a visa officer errs when undue weight is placed on relevant but not central factors. Such is not the case here. Hameed v. Canada (Minister of Citizenship and Immigration), 2002 FCT 621 puts Maniruzzaman, supra, in proper context and concludes that the Court should ensure that the visa officer considered relevant and reasonable factors not that he should lean his consideration in one direction.
[24] It is important to consider that what the visa officer did is give Wen five (5) out of ten (10) points. I cannot find that a median score is patently unreasonable.
[25] The Applicant also contends that the visa officer paid only lip service to the matters of positive discretion. The record does not support that argument. The CAIPS notes found at p. 118 of the Applicant's record establish that the visa officer did consider both the issue and Wen's submissions:
Showed CAIPS assmt screen. Explained all units. Stated units insufficient. Stated was satisfied this was accurate reflect of ability to successfully est. in CDA. Stated his agent had requested that his appn be considered for positive discretion. Asked PA to provide additional info. For me to consider, describe how he feels pts do not accurately reflect ability to successfully est in CDA.
States: I have job in CDA. Am studying Eng.
Stated that arranged emplymt already considered and PA assessed pts on basis of this and having relative in CDA.
PA: I cannot get any pts in Eng. but am working hard on this already. You can see I am learning English. You can these pics. PA states in Eng.: I am a cook. This is pigeon. I am learning English. My name is Wen Hao Bing. Im learning Eng. through interpreter. I hope you approve my appn. This dish is boiled goose in... sauce.
Stated that am of opinion that 5 units accurately reflects ability to est. in CDA. Stated not satisfied case warrants positive discretion.
[26] Wen's immigration representative also asked for the exercise of positive discretion but did not provide any information which could assist in this issue.
[27] The visa officer's authority to exercise positive discretion is not open-ended nor is it designed to overrule the calculation of units on some purely subjective evaluation of the overall results of the assessment.
[28] This authority requires an actual finding of some problem with the units awarded as being unreflective of the person being successfully established in Canada.
[29] S. 11(3) of the Immigration Regulations, SOR\78-172 reads in part:
| A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
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L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
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|
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[30] Neither Wen nor his representative could supply the visa officer with those "good reasons why".
[31] It is always a difficult matter when a person misses a required benchmark by a small margin; be it a school grade or an immigration unit. Reasonable people may disagree as to the mark or unit to be given. However, it is not for the Court to substitute its views for those of a visa officer who is charged by Parliament with the burden of this responsibility to make an assessment save when the visa officer acts in a patently unreasonable manner.
[32] The visa officer did not act patently unreasonably in not exercising positive discretion.
[33] For these reasons, this application for judicial review will be dismissed.
[34] Before any order is issued, the parties will have seven (7) days from the date of these reasons to file submissions as to a certified question.
"Michael L. Phelan"
J.F.C.
Toronto, Ontario
March 17, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1770-02
STYLE OF CAUSE: HAO BING WEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 26, 2004
REASONS FOR ORDER: PHELAN J.
DATED: MARCH 17, 2004
APPEARANCES:
Mr. Randolph K. Hahn
FOR THE APPLICANT
Mr. Jeremiah A. Eastman
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Guberman, Garson
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040317
Docket: IMM-1770-02
BETWEEN:
HAO BING WEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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