Koyama v. Canada (Minister of Citizenship and Immigration), docket IMM-4274-96

Date: 19971230

Docket: IMM-4274-96

BETWEEN:

     GORO KOYAMA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

GIBSON, J.:

[1]      These reasons arise out of an application for judicial review of a decision of a Visa Officer at the Canadian Consulate General in New York wherein the Visa Officer determined that the applicant did not meet the requirements for permanent residence in Canada. The Visa Officer's decision is dated the 16th of October, 1996.

[2]      The applicant is a citizen of Japan. He was born in March of 1973. After spending some time in Canada, both as a student and in employment, he applied for permanent resident status, as an independent applicant, on the 6th of February, 1996. In his application, he requested consideration in three occupational categories, as a video and sound recorder, a video and recording equipment operator and a sound effects technician, the last sometimes referred to in the material before the Court as a "foley artist". His solicitor enclosed rather substantial supporting documentation with his application, including "informal" offers of employment in Canada in his preferred occupation as a foley artist and a four page submission on "personal suitability/adaptability" in support of the following extract from the letter covering his application:

We have included a request that you exercise your discretion under section 11.3[sic] of the Immigration Regulations if, following your preliminary assessment, you determine that Mr. Koyama has obtained fewer than 70 points. Our assessment indicates that using the existing point system this is a border line case, depending on the occupational category you deem most appropriate. Mr. Koyama may qualify or he may fall just short of the 70 point mark, however, as outlined more fully in the submissions attached, we would submit that the existing point system does not accurately reflect Mr. Koyama's ability to successfully establish in Canada.1

[3]      The applicant was interviewed by the visa officer on the 16th of October, 1996. The visa officer's rejection letter, the decision here under review, reads in part as follows:

I have now completed the assessment of your application and based on the information you provided on your application and at interview, I have determined that you do not meet the requirements for admission to Canada as a permanent resident. You were assessed in the following occupation: Sound-Effects Technician, CCDO 9555130. A breakdown of your assessment is as follows:

[The breakdown is not included in its detail since it is not central to the issues on this judicial review. It is sufficient to say that the total units or points amounted to 65.]

According to Canada's Immigration Regulations, a visa officer may not issue an immigrant visa to an applicant if the applicant has not achieved a minimum of 70 units of assessment. You have obtained insufficient units of assessment to qualify for immigration to Canada. I believe the assessment points accurately reflect the chances of your successfully establishment in Canada. Your Consultant has requested an exercise of discretion under section 11(3) of the Immigration Regulations. I have considered the request and decided not to recommend discretion in your case.

[4]      It is of particular importance to this application for judicial review to note that the visa officer's decision letter only refers to the applicant being assessed in one occupational category, not three as requested, and that no explanation is provided for the failure to recommend the exercise of positive discretion under subsection 11(3) of the Immigration Regulations.

[5]      Counsel for the applicant urged that the Visa Officer erred in a reviewable manner in two respects in arriving at the decision he did. First, counsel argued that the Visa Officer failed to consider the applicant's application in each of the occupational categories identified by him. Second, counsel argued that the visa officer erred in failing to consider relevant factors and in considering irrelevant factors in concluding against the exercise of positive discretion. Counsel for the respondent contended that the visa officer had provided a full and fair assessment.

[6]      In Dhaliwal v. Minister of Employment and Immigration², Mr. Justice Rouleau wrote at page 316:

Here the applicant had indicated in his application for permanent residence that he was qualified for and prepared to follow two occupations:

...

The Visa Officer was therefore under a duty to assess him in both those occupations...in the course of performing that assessment it was incumbent on the Visa Officer to examine the applicant's previous work experience and determine whether or not it constituted experience in the intended occupations.

[Reference to specific occupations and a citation omitted.]

[7]      At page 317, Mr. Justice Rouleau continued:

I am further satisfied that, ... the Visa Officer breached the duty of fairness owed to this applicant by failing to indicate to him during the interview that he had concerns regarding his qualifications for his intended occupations and consequently did not provide the applicant an opportunity to present evidence that would establish that he was indeed qualified. [Citation omitted.]

There is substantial authority from this Court to similar effect.³

[8]      While the Visa Officer, in his affidavit, filed in this matter, attests that he "considered" the applicant's alternative job categories, the greater weight of the evidence before the Court, which included the Visa Officer's computer notes made subsequent to the interview with the applicant and the transcript of the cross-examination of the Visa Officer on his affidavit, clearly establishes that he did not "assess" those alternative occupational categories in a meaningful way. In the result, based on the totality of the evidence before me, I conclude that the Visa Officer erred in a reviewable manner in the assessment of the applicant's identified occupational categories.

[9]      I conclude that the Visa Office further erred in a reviewable manner in his consideration of the applicant's request to be considered for the exercise of positive discretion. In Singh (Gurmit) v. Canada (Minister of Citizenship and Immigration)⁴, Madame Justice Simpson wrote at page 70:

In the exercise of her discretion, the Officer was directing her attention to the applicant's ability to successfully establish himself in Canada. This is a forward-looking exercise. In my view, to accord his Offers [job offers] little weight because they were not certified by C.E.I.C., was to apply an irrelevant consideration. The Officer accepted that the job offers were bona fide. As such, they demonstrated that, once landed, the applicant had good employment prospects. The fact that he could not accept the offers prior to landing was irrelevant.

Precisely the same could be said here.

[10]      To the same effect, Mr. Justice Richard wrote in Sugoor Khan v. The Minister of Citizenship and Immigration⁵:

While the discretion conferred on a visa officer under s. 11(3) is a broad one, it is not an unrestricted discretion at large, either to reject or to grant an application for permanent residence. It must be exercised in good faith and for the purpose it was given. It cannot be based on irrelevant considerations or ignore relevant considerations. There is no allegation of bad faith here. However, the Visa Officer clearly discounted the applicant's bona fide job offer to the point that he considered that it was not available. This was not a question of assigning weight to the job offer but amounted to completely ignoring a relevant consideration.

[11]      I am satisfied on the material before me that here, the Visa Officer ignored at least one relevant consideration in the exercise of his discretion under subsection 11(3). I find it unnecessary to go further and examine other alleged instances of ignoring relevant considerations and of taking into account irrelevant considerations.

[12]      For the foregoing reasons, this application for judicial review will be allowed, the applicant's application for landing in Canada will be referred back to the respondent for reconsideration by a different officer on the basis of the material that was before the Visa Officer who's decision is set aside and such further material expanding on and updating that information as the applicant considers relevant. Neither counsel recommended certification of a question. No question will be certified.

                                 ________________________

                     Judge

Ottawa, Ontario

December 30, 1997

__________________

     ¹      Subsection 11(3)(not 11.3) of the Immigration Regulations, 1978, S.O.R. 78/172, reads as follows: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.

     ²      (1992), 52 F.T.R. 311

     ³      See for example, Shagu v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 137 where Mr. Justice Muldoon wrote at page 142:...The Visa Officer has a duty to assess an application with reference to the occupation represented by the applicant as the one for which he or she is qualified and prepared to pursue in Canada. That duty extends to each such occupation.          See also Hajariwala v. Canada, [1989] 2 F.C. 79 (T.D.)

     ⁴      (1995), 106 F.T.R. 66

     ⁵      Court File IMM-1132-96, March 12, 1997, (F.C.T.D.) (unreported)