Date: 20000110
Docket: IMM-3809-98
BETWEEN:
JIAO MIN ZHENG
Applicant
and
THE MINISTER OF CITIZENSHIP and IMMIGRATION
Respondent
REASONS FOR ORDER
O"KEEFE, J.
[1] The applicant has applied for judicial review of a decision by a visa officer, John Choi, dated June 13, 1998 whereby the applicant"s application for permanent residence status in Canada was refused. The applicant had submitted her application for permanent residence in June 1995 and was it made pursuant to the independent category, specifically CCDO 2133-234, Biochemist. Mr. Choi ruled that the applicant did not meet the requirements for immigration to Canada.
[2] The applicant"s application shows that she received a bachelor of medicine degree in 1983. The notes of Mr. Choi, Second Secretary Immigration, made at the hearing of the application show that the applicant studied chemistry for four years and received a bachelor of medicine in 1983.
[3] The applicant"s application states in paragraph 9 that she was employed as a biochemist. Her duties included: "Designing research projects in the field of biochemistry; conducting research in such topics as urban industrial pollution and inspection and control of pollution of drinking water. Monitoring environmental pollution; reviewing results of monitoring and analysis of urban environmental pollution; etc..."
[4] The notes made by Mr. Choi at the hearing of the application show the following:
| a) The applicant stated that she had worked from 1985 to the present at the Chengdu Environment Monitoring Centre analysing pollutants in the air. |
| b) The applicant stated she was presently monitoring air and water samples. |
| c) When asked to describe the safety standards of air quality such as levels of NO2 and SO2 in the air the applicant stated she had forgotten this information. |
| d) When asked to describe the safety levels of heavy metals in drinking water such as Cu, Fe, Zn and Hg, the applicant stated that she did not know the precise safety levels. |
| e) The applicant was asked to describe the criteria for safe drinking water and she answered that the bacteria count must be under 100/ml. |
| f) Mr. Choi concluded that the applicant "did not have the work experience to qualify as a biochemist" and ruled that the applicant did not meet the requirements for immigration to Canada. |
[5] The applicant received sixty-five (65) units of assessment.
[6] The applicant was awarded zero (0) units of assessment under the heading of experience.
ISSUE
[7] Did Mr. Choi, Second Secretary Immigration, make an error in his assessment of the applicant"s application by granting her zero units of assessment under experience.
ANALYSIS
[8] Schedule I of the Immigration Regulations, SOR/78-172 (Regulations) sets out a number of factors to be given consideration by a visa officer when determining an application for permanent residence in Canada. These factors are:
| FACTORS
|
Maximum Points
|
| Education
|
16
|
| Education and training
|
18
|
| Experience
|
8
|
| Occupational factor
|
10
|
| Arranged employment or designated occupation
|
10
|
| Demographic factor
|
10
|
| Age
|
10
|
| Knowledge of english and french languages
|
15
|
| Personal suitability
|
10
|
Subsection 9(1) of the Regulations states:
| 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
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
(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,
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment,
(ii) in the case of an entrepreneur or a provincial nominee, he is awarded at least 25 units of assessment, and
(iii) in the case of an investor other than an investor in a province, the investor has made an investment and is awarded at least 25 units of assessment; and
(iv) [Repealed, SOR/99-146, s. 4]
(c) where the immigrant and the immigrant's accompanying dependants intend to reside in the Province of Quebec,
(i) the Minister of Cultural Communities and Immigration of that Province is of the opinion based on these Regulations or regulations made under An Act respecting the Ministère des Communautés culturelles et de l'Immigration (R.S.Q., 1977, c. M-23.1), as amended from time to time, that the assisted relative will be able to become successfully established in that Province, and
(ii) in the case of an investor in a province, the investor has made an investment,
(A) where the investor is an investor other than an investor in a province, the investor has made a minimum investment described in paragraph (a), (c) or (d) of the definition "minimum investment" in subsection 2(1), and
(B) where the investor is an investor in a province, the investor has made a minimum investment described in paragraph (b) or (e) of the definition "minimum investment" in subsection 2(1).
|
|
| 9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et 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 toute personne à charge qui l'accompagne si :
a) l'immigrant et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; et
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 points d'appréciation,
(ii) dans le cas d'un entrepreneur ou d'un candidat d'une province, il obtient au moins 25 points d'appréciation,
(iii) dans le cas d'un investisseur autre qu'un investisseur d'une province, il a fait un placement et il obtient au moins 25 points d'appréciation;
(iv) [Abrogé, DORS/99-146, art. 4]
c) lorsqu'ils entendent résider au Québec :
(i) d'une part, le ministre des Communautés culturelles et de l'Immigration de cette province est d'avis, d'après les règlements d'application de la Loi sur le ministère des Communautés culturelles et de l'Immigration (L.R.Q. 1977, ch. M-23.1), compte tenu de leurs modifications successives, que l'immigrant et les personnes à charge qui l'accompagnent pourront réussir leur installation dans cette province,
(ii) d'autre part, dans le cas d'un investisseur d'une province, il a fait un placement.
|
|
Subsection 11(1) of the Regulations states:
| 11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant
(a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience; or
(b) is qualified for and is prepared to engage in employment in a designated occupation.
|
11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant :
a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou
b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire.
|
[9] In his decision dated June 13, 1997 the visa officer awarded the following units of assessment to the applicant:
| FACTORS
|
Points
|
| Age
|
10
|
| Occupational factor
|
01
|
| Specific vocational preparation
|
18
|
| Experience
|
0
|
| Arranged employment
|
0
|
| Demographic factor
|
08
|
| Education
|
15
|
| English
|
08
|
| French
|
0
|
| Bonus
|
0
|
| Personal suitability
|
05
|
| Total
|
65
|
[10] It is evident from subsections 9(1) and 11(1) of the Regulations that an immigrant visa may only be issued to an applicant if the applicant receives at least seventy (70) units of assessment and does not receive zero (0) units for experience.
[11] The visa officer in this case awarded only a total of sixty-five (65) units of assessment and gave zero (0) units of assessment for experience thus disqualifying the applicant for two reasons.
[12] The issue now becomes whether the visa officer exercised his discretion in a proper manner. Madame Justice L"Heureux-Dubé stated in Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 DLR (4th) 193 in paragraph 62 stated:
| [62] These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court - Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter. |
Was the decision of the visa officer to conclude that the applicant did not have the work experience to qualify as a biochemist and to award zero (0) points for work experience a reasonable decision in this case? Iacobucci, J. in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748 in paragraph 56 stated:
| [56] ... An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it... |
[13] I find that the decision of the visa officer to conclude that the applicant did not have the work experience to qualify as a biochemist and to grant zero (0) points for experience was an unreasonable decision. My reasons for reaching this conclusion include:
| a) The applicant has worked as a biochemist from 1985 analysing pollutants in the air and monitoring air and water quality. |
| b) The applicant worked at a cancer hospital from 1983 to 1985 on the analysis of blood composition, liver function test. |
| c) The applicant has four years of chemistry training at the university level (Certified Record page 5). |
| d) The visa officer asked specific detailed questions which required specific answers such as safety levels of heavy metals in drinking water and the acceptable standard of air quality such as level of No2 and So2 in the air. When the applicant could not supply the specific answers the visa officer concluded that the applicant did not have the work experience to qualify as a biochemist. |
[14] It is difficult to conceive that an applicant with the work experience which the visa officer has outlined would receive zero (0) points for experience and be found not to have the work experience to qualify as a biochemist. Surely this would qualify her to receive at least some units of assessment. In the alternative if the standard of review was "patent unreasonableness" I would have found the decision of the visa officer to be patently unreasonable.
[15] The applicant raised two other issues:
| 1) "That the visa officer erred in his assessment of item 9 in Schedule I, "personal suitability" by awarding the applicant five (5) out of a possible ten (10) units." |
| 2) "... the officer erred in not alternatively assessing the applicant"s spouse as the principal applicant ..." |
[16] The applicant submits that the visa officer erred in his assessment of her "personal suitability" by only awarding her five (5) out of a possible ten (10) units of assessment. I have reviewed the notes of the visa officer taken during the interview and his letter of refusal to the applicant dated June 13, 1998 and I can find no reference as to how he decided to award five (5) points for personal suitability. The letter to the applicant dated June 13, 1998 does state that the applicant received five (5) points of assessment for personal suitability but does not state the reasons for arriving at this figure. The question becomes whether the failure to give a reason for this conclusion would cause the decision to be set aside by this Court. The Federal Court of Appeal in Williams v. Canada [1997] 2 F.C. 646 (C.A.) sated at page 674 - 675.
| I have some difficulty with the notion that a decision without reasons is invalid on the sole ground that it may be difficult t review by an appeal curt or a court exercising judicial review powers. Recognizing once again that reasons are highly desirable it is quite possible for a tribunal, or a judge for that matter, to render a proper decision without reasons. Experience shows us that this happens in the courts every day. Why should it be otherwise with tribunals? This is particularly true where tribunals are exercising largely discretionary powers, such as the Minister under subsection 70(5) where he or she is not required to apply existing legal principles to specific conclusions of fact as does a court or many tribunals. |
| I am at a loss to know why courts can as a matter of law render decision without reasons but may insist that tribunals cannot, as a matter of law do so. A rationale for this proposition, as enunciated in the Doody case and by the Motions Judge in this case, is that without reasons being given by a decision maker, a court on judicial review cannot tell if that decision is correct. With respect, it seems to me that this approach is based on the premise that decisions by tribunals and officials are presumptively wrong unless they can be proven correct. But the separation of powers and ordinary principles of judicial deference require that it is for the person attacking a discretionary decision to demonstrate that it is unlawful. This may be easy in some cases where the decision is patently perverse, patently unlawful as dealing with matters outside the jurisdiction of the decision maker, or explicable only on the assumption of bad faith. Absent such factors, it is for the applicant for judicial review to bring forth evidence or argument as to why the decision is unlawful. This in no way diminishes the desirability of the decision maker giving reasons but I fail to see how this can be turned into a legal duty in the absence of a statutory requirement. |
This is not the end of the matter as L"Heureux-Dubé, J. of the Supreme Court of Canada stated in Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 DLR (4th) 193 at pages 219-220:
| In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one o the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cumingham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached. |
The Federal Court of Appeal in Williams v. Canada, supra, at page 672 stressed the importance of giving reasons:
| I would first confirm, as have many courts over the years, that it is usually, if not always, preferable that both courts and tribunals give reasons for their decisions. There are many advantages in issuing reasons: they enable the parties to know why they have won or lost, a very important consideration; the articulation of reasons imposes a discipline upon a court of tribunal when it is obliged to justify the result; and they undoubtedly assist a court later in disposing of an appeal or exercising powers of judicial review. |
It is my opinion that what would be required, as was decided in Baker, supra, to constitute reasons, would be the notes of the visa officer or his letter to the applicant addressing the various issues. In the present case the applicant has a right of appeal to this Court and the decision whether to allow the applicant to enter Canada has important significance for her. As I have already stated the notes and letter of the visa officer in this case do not mention what he considered in arriving at a total of five (5) points for personal suitability. If the notes or the letter to the applicant listed the factors considered in arriving at the total of five (5) points then it would not be the role of this Court to second guess the visa officer unless the reasons were unreasonable. Barring unreasonableness it is not the role of the Court to substitute its opinion for the opinion of the visa officer.
[17] Some examples of how other visa officers have addressed the awarding of points of assessment are as follows:
In Shen v. The Minister of Citizenship and Immigration (August 30, 1999) IMM-3308-98 (F.C.T.D.) at pages 6 and 7:
| In the case at bar, the visa officer made the following notes with respect to the applicant"s Personal Suitability: |
| PS [Personal Suitability] for PA [principal applicant] is low since he has not taken any initiative to read CCPE material explaining licensing procedure for Prof Engs in Cda. PA knew nothing of this Req. PA thought it would be easy, even at his age, to get a job as an engineer in Cda because he has many friends there and "hae well education, experience". When asked how he would find a suitable job PA answered that his friends would find him work. PA plans to go alone without his English speaking wife. Cannot settle successfully. |
And in Bulent Kesici v. The Minister of Citizenship and Immigration (June 16, 1999) IMM-3045-98 ) (F.C.T.D.) at page 7:
| With respect to her assessment of the applicant"s personal suitability, the I.O. simply stated: |
| I awarded the Applicant five units of assessment in the category of personal suitability, based upon the motivation, adaptability, resourcefulness and initiative that he projected to me during the interview and was reflected in the documents filed in support of his application. |
These are very simple and easy ways to give reasons for a decision to award a certain number of points of assessment for "Personal Suitability". That was not done in this case and therefore it was a breach of the duty of procedural fairness not to give these reasons. The decision must also be set aside for this reason.
[18] The applicant stated that "the officer erred in not alternatively assessing the applicants spouse as the principal applicant". I have reviewed the application for Permanent Residence in Canada and the notes made at the interview and I can find no reference to a request to have the applicant"s wife assessed as principal applicant. Subsection 8(1) of the Regulations states "... a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant". No such option was made by the applicant therefore this ground of review must fail.
[19] The applicant raised one further matter in the application record at page 22, namely that "the duty of fairness may require a visa officer who has an impression of deficiency in the proof being offered by an applicant to give an applicant the opportunity to disabuse the visa officer of that crucial impression". This argument has been dealt with by Richard, A.C.J. (as he then was) in Bara v. Canada (Minister of Citizenship and Immigration) , July 6, 1998, (F.C.T.D.), IMM-3286-97 in paragraph 15:
| [15] The officer is not required to put before the applicant any tentative conclusions he may be drawing from the material before him, not even as to apparent contradictions that concern him. However, if he relies on extrinsic evidence, not brought forward by the applicant, he must give him a chance to respond to the evidence [See Note 2 below] |
| Note 2: Canada (Minister of Employment and Immigration) v. Shah (1995), 170 N.R. 238. |
I agree with this conclusion and accordingly I would dismiss this argument of the applicant.
[20] The application for judicial review is granted, the decision of the visa officer is set aside and the matter is referred back for reconsideration by a different visa officer
[21] Both parties have indicated that they do not intend to submit a question for certification.
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
January 10, 2000
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