IMM-1715-96
B E T W E E N:
TO SHING LEE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario,
Wednesday the 9th day of April, 1997 as edited)
ROTHSTEIN, J.:
Mr. Sherman in spite of your very persuasive argument on the facts in relation to the visa officer's decision in this case, I am unable to grant the judicial review application. I am not persuaded that the visa officer ignored evidence or took into account irrelevant considerations. In view of your argument, it appears quite possible that another visa officer, or indeed, the Court might have come to a different conclusion with respect to some aspects of the applicant's application for an immigrant visa. However, as you know, I am unable to substitute my discretion for that of the visa officer.
The one issue relating to irrelevant considerations is whether it was irrelevant for the visa officer to take into account the existing demand for the applicant's occupation and the general employment situation in Canada. In considering ss. 8(1) of the Immigration Regulations it would appear that in assessing an application of an entrepreneur, the visa officer is not to consider factors 4 and 5 in Column 1 of Schedule 1 to the Regulations. Factor 4 is titled "occupational demand". Had the visa officer taken that into account in assessing the entrepreneurial aspect of the application, she may well have erred. However, the reference to demand for the applicant's occupation and the general employment situation in Canada is in the preamble to the entire decision. It is apparent from that decision that the applicant was considered both as an entrepreneur and, when he failed in that categorization, as a carpenter. There is no indication that she took occupational demand into account in assessing the entrepreneurial application, but only in considering the alternative occupation of carpenter.
You have argued that there is a reference in her notes to the fact that the applicant did not produce photographs or drawings. It may be that in some cases where a decision clearly is based on some particular of which the applicant is unaware, there may be an obligation to inform him of what that is. But here, the reference to his not producing drawings or photographs was made as one of the general considerations that led the visa officer to her conclusion.
The application is dismissed.
"Marshall E. Rothstein"
Judge
Toronto, Ontario
April 10, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1715-96
STYLE OF CAUSE: TO SHING LEE
- and -
MINISTER OF CITIZENSHIP AND
IMMIGRATION
DATE OF HEARING: APRIL 9, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: APRIL 10, 1997
APPEARANCES:
Mr. Irvin H. Sherman, Q.C.
Mr. Christopher J. Roper
For the Applicant
Ms. Lori Hendriks
For the Respondent
SOLICITORS OF RECORD:
MARTINELLO & ASSOCIATES
Barrister and Solicitor
Suite 208
255 Duncan Mill Road
Don Mills, Ontario
M3B 3H9
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-1715-96
Between:
TO SHING LEE
Applicant
- and -
MINISTER OF CITIZENSHIP
Respondent
REASONS FOR ORDER
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