Khan v. Canada (Minister of Citizenship and Immigration), docket IMM-1490-96

     IMM-1490-96

BETWEEN:

     HAFIZA KHAN,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

RICHARD J.

     The applicant and her sister submitted an application for Permanent Residence in the assisted relative category on September 7, 1995. I have dealt with and allowed her sister's application for judicial review in Court File No. IMM-1132-96. This applicant's application for permanent residence and for positive discretion under s.11(3) of the Immigration Regulations was considered and determined by a different Visa Officer.

     In her cross-examination, the Visa Officer stated that in addition to demonstrating high traits of adaptability, motivation, resourcefulness or initiative in order to satisfy the test for the exercise of positive discretion, an independent applicant must establish an ability to find a job.

     The applicant did advise the Visa Officer at the interview that she had a job offer with her niece's public relations firm in Canada. The Visa Officer dismissed the job offer as self-serving and refused to consider it unless the Applicant obtained a "Confirmed Job Offer" and submitted a new application for permanent resident. In her cross-examination, the officer further stated that there was no evidence of a job offer, although the Visa Officer did not request the applicant to provide proof or give the applicant an opportunity to submit documentation after the interview to satisfy her in this regard. The Visa Officer further relied on information which she obtained after the interview and did not disclose to the applicant, which suggested her sister had been offered the same job. No opportunity to explain this information was provided to the applicant.

     As I stated in my reasons setting aside the decision of the Visa Officer in her sister's application for judicial review, while the discretion conferred on the 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 job offer to the point where she 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.

     In the circumstances of this case, the Visa Officer did not exercise her discretion under s.11(3) according to law and, as a result, her decision must be set aside. I direct that the applicant's application for a positive discretion under s. 11(3) be considered and determined, as soon as practicable, by a different visa officer.

     __________________________

     Judge

Ottawa, Ontario

March 12, 1997