Date: 19990125
Docket: IMM-852-98
BETWEEN:
ALICE YING-YING CHONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J.
INTRODUCTION
[1] The applicant seeks judicial review of the decision of the visa officer dated January 21, 1998 refusing the applicant"s application for permanent residence in Canada. The applicant seeks an order directing the respondent to reconsider and process the applicant"s application for permanent residence in Canada.
FACTS
[2] On September 11, 1996, the applicant, Alice Ying-Ying Wong, and her son, made an application for permanent residence pursuant to paragraph 11(3) of the Immigration Regulations, with a request that the visa officer exercise her positive discretion because counsel for the applicant believed there were good reasons to anticipate that the number of units to be awarded would not reflect her chances of becoming successful in Canada.
[3] The applicant was never interviewed as she was not awarded the minimum of 60 units of assessment in the first part of the application process. By letter dated January 21, 1998, the applicant was advised that her application had been refused. What follows is the relevant excerpt from the refusal letter:
| Please find attached a detailed assessment for each of the occupations in which you were assessed. Note that you have not been awarded any units of assessment for the Personality Suitability Factor as units for this factor can only be awarded by an officer during a personal interview. In the case of interview, the minimum units of assessment required is 70. Even if you were awarded the maximum of 10 units for personal suitability you would still not reach the minimum units required. |
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| I have also determined that relief pursuant to subsection 11(3) of the Regulations is not warranted as, in my opinion, the units of assessment awarded to you are an accurate reflection of your chances of becoming successfully established in Canada. |
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PARTIES" POSITION
Applicant"s position
[4] The applicant submits that in the exercise of her discretion the visa officer must consider employments prospects in Canada, adaptability and ability to make a living in Canada, and prospects for successful establishment.
[5] It is argued that the officer failed to consider the applicant"s six-year positive track record as a secretary with a multi-national Dow Chemical Pacific Ltd. and the prospects of employment with the same company in Canada. The officer failed to consider the applicant"s accumulated assets of approximately $400,000.00, and that the applicant would unlikely require welfare or public assistance in Canada. Further, the visa officer failed to consider the applicant"s number of friends in Canada eager to embrace and support her; her ability to use her qualities as a survivor of spousal psychological abuse and adversity to successfully establish in Canada; her notable record of stability, professional and financial ambition, good health, and unblemished civic record; her efforts in upgrading her education and vocational qualifications by passing an adult education examination in Japanese language in 1978, by obtaining a certificate in Tourism and Hotel and Restaurant Management in 1982 and by completing courses in Excel 7 and Word for Windows 7 in 1996.
[6] Furthermore, the applicant contends that the officer should have interviewed the applicant in order to assess her qualities under Factor 9 "Personal Suitability". Also, it is submitted that the applicant did not have the opportunity to submit written verification of a job offer in Canada from Dow"s. The applicant"s counsel explained in a letter that the written verification had not been obtained prior to being advised that she would be interviewed as the request would nullify her chances of promotion at her present office.
Respondent"s position
[7] The respondent submits that the applicant"s application was reviewed and determined by Claire Wittenberg, visa officer, who exercised her discretion in good faith, in accordance with principles of natural justice, and by relying upon relevant considerations. The respondent relies on Chiu Chee To v. M.E.I. (F.C.A., May 22, 1996, A-172-93) for the proposition that a Court should not interfere with the exercise of discretionary authority merely because the court might have exercised the discretion in a different manner.
[8] The respondent submits that the applicant was awarded 54 units, 16 units below the threshold set at 70 units for the issuance of an immigrant visa. The applicant was not assessed for personal suitability as this factor is assessed only on the basis of a personal interview; and she was not interviewed because she had not amassed the required 60 units in accordance with subparagraph 11.1(a)(i) of the Immigration Regulations. However, even if the applicant had received the maximum units of assessment for the factor of personal suitability, she would not have had enough units to attain the minimum required total of 70 units.
ISSUES
[9] The applicant raises two issues:
| 1) Did the visa officer err by ignoring relevant considerations and considered irrelevant considerations which resulted in his failing to properly exercise the discretion conferred by paragraph 11(3) of the Immigration Regulations. |
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| 2) Did the visa officer commit a reviewable error by failing to interview the applicant in order to assess the qualities referred to in Factor 9 of the Immigrations Regulations and the applicant"s ability to become successfully established in Canada. |
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ANALYSIS
Relevant considerations
[1] It is trite law that statutory discretion must be exercised in accordance with good faith, principles of natural justice, and must be based on relevant considerations. The taking into account of irrelevant considerations or failure to consider relevant considerations would justify the intervention of the Court. This is precisely what the applicant argues, that the officer failed to take into account relevant considerations in the examination of her application as it is obvious, to counsel for the applicant, that the applicant could easily establish herself successfully in Canada.
[2] The respondent relies on an excerpt from the visa officer"s affidavit to demonstrate that the officer"s positive discretion was properly exercised, and that all relevant considerations were taken into consideration by the visa officer. The respondent submits that the officer considered the applicant"s submissions that positive discretion be exercised on the basis that "there are good reasons why the expected number of units of assessment do not accurately reflect the chances of Ms. Chong and her son becoming successfully established in Canada". The officer deposed in her affidavit that she considered all relevant considerations in the exercise of her positive discretion:
| "Upon consideration of all the circumstances of the Applicant"s application, I determined that relief pursuant to subsection 11(3) of the Regulations , referred to in Mr. Mak"s submission as the exercise of positive discretion, was not warranted, as I considered that the number of units awarded accurately reflected the Applicant"s chances of becoming successfully established in Canada. While Mr. Mak suggests that the Applicant justifiably expects to receive a job offer as a secretary in Dow"s Vancouver or Toronto offices" he also states that the Applicant has not even advised the company in Hong Kong of her plan to emigrate to Canada as this would effectively nullify her chances of promotion at her present office. There is, therefore, no offer of employment in her intended occupation, either informal or in terms of arranged employment, on behalf of the Applicant. Mr. Mak further states that the Applicant possesses almost the equivalent of $400,000 in assets, and therefore it is unlikely that she will need welfare or public assistance. Mr. Mak has further submitted that the Applicant has a bright personality and is well-liked, has friends in Canada, has been stable in her residence and employment over several years, and is in good health. While I consider all of these submissions, including the statement concerning Ms. Chong"s survival of alleged psychological abuse by her former spouse, I concluded that they were not sufficient to outweigh the fact that the applicant had received insufficient units of assessment to qualify for selection. The Applicant has no substantial ties to Canada, in terms of family, property or employment. The Applicant"s mother and siblings all reside in Hong Kong or Taiwan. Beyond two day-courses in Word for Windows Introduction and Excel 7 Introduction in 1996, the Applicant has not attempted to upgrade her qualification in her intended occupation. The facts that the Applicant possesses sufficient assets with which to settle in Canada, and that she is in good health are relevant, in that they would appear to indicate that the Applicant is unlikely to be inadmissible to Canada for health reasons pursuant to paragraph 19(1)(a), or for being unable or unwilling to support herself or her dependents pursuant to paragraph 19(1)(b) of the Immigration Act . However, based upon the facts and submissions made, I did not consider that the Applicant has established sufficient grounds to warrant recommendation of the exercise of positive discretion, in that the number of units awarded accurately reflect her chances of becoming successfully established in Canada." |
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[3] In light of the affidavit evidence adduced by the respondent, I am not convinced that the officer failed to consider relevant considerations in her assessment of whether she should exercise her positive discretion. The officer considered the applicant"s employment situation with Dow. However, it would appear that her employment prospects with Dow in Canada were not confirmed as she had not informed them of her intention to emigrate to Canada. The officer"s affidavit also shows that she considered the applicant"s assets, the presence of friends in Canada, her qualities as a survivor of spousal psychological abuse, her efforts in improving her vocational skills by taking Word for Windows and Excel 7.
[4] By doing so, I am satisfied the officer exercised her discretion in accordance with this court"s guidelines in Ting , supra, as relied upon by the applicant: adaptability, employment prospects, ability to make a living in Canada and prospects for successful establishment. Also, I am not convinced that the officer"s decision was unreasonable in light of the facts and circumstances of this case.
[5] The applicant argues also that the officer failed to interview her in order to properly assess the qualities referred to in Factor 9 " Personal Suitability". The respondent submits that even if the applicant had been interviewed and given the maximum number of units for this Factor, the applicant would still not have met the threshold under the Act.
[6] The applicant further states that she was not given the opportunity to submit information relating to job prospects in Canada with Dow Chemical, as counsel explained in a letter that the information would be obtained and submitted when advised of the interview as obtaining such information could interfere with her promotion opportunities.
[7] In Shum v. Canada (M.C.I.), (F.C.T.D.)( IMM-3877-94, August 4, 1995), Justice McKeown considered the exercise of an officer"s positive discretion and held that while the lack of interview may generally be harmful to a person"s chances of success, an interview is not required for the officer to make a determination with respect to the exercise of positive discretion.
[8] In light of the foregoing, I am not convinced that the officer committed a reviewable error of law. The officer did consider the relevant considerations in determining whether she should exercise her positive discretion, which can be done without holding an interview. Further, the burden to provide all the necessary information in support one"s application is clearly upon the applicant. The applicant advised the officer by letter that confirmation of job employment in Canada would be provided upon being advised that the applicant was scheduled for an interview. The officer never granted the applicant an interview as she did not meet the required threshold of 60 units. Counsel for the applicant knew of the threshold requirements for an interview and should have taken it upon himself to obtain and submit the information in a timely fashion. I am unable to find that the officer erred by failing to grant the applicant the opportunity to provide confirmation of employment with the Dow Chemical in Canada, once her decision was made that the applicant would not be granted an interview.
CONCLUSION
[9] The application for judicial review is denied.
[10] Neither party had a question to be certified.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
January 25, 1999
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