Date: 19991026
Docket: IMM-4818-98
OTTAWA, ONTARIO, THE 26th DAY OF OCTOBER 1999
PRESENT: THE ASSOCIATE CHIEF JUSTICE
BETWEEN:
WEI KEI KENNETH LEE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON oral motion of counsel for the respondent and upon hearing counsel for the applicant;
THIS COURT ORDERS THAT:
The application for judicial review of the decision of Murray Oppertshauser, Program Manager, dated August 18, 1998, is dismissed on the ground that:
(a) it is a separate decision from that of J. Ng; and
(b) it is a decision that requires leave under subsection 82.1(2) of the Immigration Act and leave has neither been sought nor obtained.
THIS COURT FURTHER ORDERS THAT:
The applicant"s application for Judicial Review, filed September 18, 1998, be amended to refer only to the judicial review of the decision of J. Ng, Designated Immigration Officer, dated August 11, 1998.
AND UPON APPLICATION FOR JUDICIAL REVIEW filed September 18, 1998, as amended by the above order, of the decision of Murray Oppertshauser;
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
____________________________
Associate Chief Justice
Date: 19991026
Docket: IMM-4818-98
BETWEEN:
WEI KEI KENNETH LEE,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER
RICHARD A.C.J.:
This is an application for judicial review, pursuant to section 18.1 of the Federal Court Act1, of the decision of J. Ng, designated visa officer and Murray Oppershauser, program manager denying the applicant"s application for permanent residence.
This application also involves a preliminary issue of whether the applicant"s notice of application for judicial review complies with rule 302 of the Federal Court Rules, 1998 2 and section 82.1 of the Immigration Act3. A motion filed by the respondent in the present application addresses this preliminary issue.
BACKGROUND
The applicant, a 26 year old permanent resident of Hong Kong, applied for permanent residence in Canada as an assisted relative. The applicant further requested that his application be considered under humanitarian and compassionate grounds as he was the last remaining family member in Hong Kong.
Pursuant to this application, an interview was granted and held with Designated Immigration Officer Ng on August 10, 1998.
At the conclusion of the interview, it became apparent to Officer Ng that the applicant would not satisfy the statutory provisions of the Immigration Act. As evidenced by the interview notes, Officer Ng informed the applicant that she was going to refuse the applicant"s application under the Assisted Relative category. The interview notes also indicate that Officer Ng proposed to forward the applicant"s humanitarian and compassionate request to the program manager for a subsequent decision.
| On August 11 1998, Officer Ng sent a letter to the applicant confirming her negative decision to issue a visa pursuant to paragraph 19(2)(d) of the Immigration Act and detailed the basis of her negative assessment. Relevant portions of the letter read as follows: I have assessed you in the occupation of Hair Stylist, for which you earned the following units of assessment: |
| Age 10 |
| Occupational Demand 1 |
| Education/Training Factor 2 |
| Experience 2 |
| Arranged Employment 0 |
| Demographic Factor 8 |
| Education 0 |
| English 0 |
| French 0 |
| Personal Suitability 7 |
| Total: 30 |
| In order to be selected as an Assisted Relative, you must earn 65 units of assessment. This figure has been reduced form the usual level of 70 in your case to reflect a 5 unit bonus for Assisted Relative. Nonetheless, you have failed to earn more than the minimum required number of units of assessment. |
As the applicant had failed to acquire the 65 points necessary to obtain a visa under the Assisted Relative category, the application was denied. In her letter, she reiterated that the applicant"s specific request of consideration under humanitarian and compassionate grounds had been referred to the program manager of that specific office.
The request to waive regulatory requirements on humanitarian and compassionate grounds pursuant to s. 114(2) of the Immigration Act was dealt with by Program Manager Oppertshauser. By letter dated August 18 1998, he refused the request. Once again, it is important to outline some of the contents of this letter:Section 2.1 of the Immigration regulation authorizes the Minister to facilitate the admission to Canada of any person where the Minister is satisfied that the person"s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. I have the delegated authority to decide such matters.
| Your request [...] has been given careful and sympathetic consideration. I regret to inform you that I have determined that the grounds you presented do not warrant favourable consideration. |
Both the letters of Visa Officer Ng and Program Manager Oppertshauser were sent to the applicant simultaneously.
On September 18, 1998 the applicant filed a Notice of application for judicial review. The application claims relief of the following decisions:J. Ng, designated immigration officer [...] dated August 11, 1998 and Murray Oppertshauser, program manager [...] dated August 18, 1998 [...] to refuse the application for permanent residence in Canada of the Applicant which decision was made on behalf of the Respondent (the "Decision").
On November 3, 1998 the respondent filed a motion in which he requested that the applicant"s notice of application be struck and the application for judicial review be dismissed on the following grounds. First, by referring to both decisions of Officer Ng and Program Manager Oppertshauser, the applicant was contravening Rule 302 of the Federal Court Rules, 1998 which requires that an application for judicial review be limited to a single order. Secondly, the decision made by the Program Manager pursuant to s. 114(2) of the Immigration Act is subject to the leave provision under s. 82.1(1) of the Immigration Act. Having failed to seek or obtain leave, the application must fail.
The motion was heard by John A. Hargrave, Prothonotary. By order dated December 17, 1998, he dismissed the motion and stated that "the adequacy of the allegations of the Respondent and the complete evidence ought to be addressed by the Judge who hears the application on its merits." As such, both the motion to strike the notice of application for judicial review and the application for judicial review itself is before me.
I will deal with the respondent"s motion before addressing application for judicial review on its merits.
ISSUE 1: Is the applicant"s notice of judicial review in conformity with the Federal Court Rules, 1998 and section 82.2 of the Immigration Act?
(A) The Federal Court Rules, 1998
The respondent raises rule 302 of the Federal Court Rules, 1998 as a bar for the applicant"s application for judicial review. The later states:
| 302. Limited to a single order - Unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought. |
302. Limites - Sauf ordonnance contraire de la Cour, la demande de contrôle judiciaire ne peut porter que sur une seule ordonnance pour laquelle une réparation est demandée. |
The respondent submits that there are two decisions in the present case. The first decision is reflected in the letter, signed by Officer Ng on August 11, 1998 which found the applicant ineligible for landing on the basis that he did not obtain the requisite units of assessment in order to fall under the Assisted Relative category; the second decision is reflected in the letter signed by Program Manager Oppertshauser on August 18, 1998, in which he denied the applicant"s request that he waive the regulatory requirements pursuant to s. 114 of the Immigration Act and s. 2.1 of the Immigration Regulations.
The applicant generally argues that both decisions were taken by Officer Ng by virtue of the fact that she had conducted the interview with the applicant and was therefore in a better position to evaluate the legitimacy of the applicant"s humanitarian and compassionate request. As such, the decision to deny the application under paragraph 19(2)(d) of the Immigration Act and the decision to refuse the humanitarian and compassionate request stem from the same decision maker.
However, this is not supported by the record. According to the certified record, once Officer Ng had determined that the applicant could not succeed under paragraph 19(2)(d) of the Immigration Act, the file was transferred to Program Manager Oppertshauser for a humanitarian and compassionate evaluation. It was indeed Officer Ng who signed the first letter denying the applicant"s permanent residency request and Program Manager Oppertshauser who signed the second letter denying the applicant"s request for a waiver of the immigration requirements.
I therefore conclude that there are indeed two decisions which the applicant is seeking to review. As the applicant"s notice of application simultaneously refers to both decisions and both individuals, the applicant does not comply with rule 302 of the Federal Court Rules, 1998 which limits the application for judicial review to one order.
(B) Section 82.2 of the Immigration Act.
Judicial review is governed by two separate provisions in the Immigration Act. Certain decisions taken by visa officers are subject to judicial review without leave of the court, all other decision taken by immigration officials must obtain leave:
| 82.2 (1) Judicial Review by the Federal Court - An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court - Trial Division |
82.2 (1) - Instances devant la Cour fédérale - La présentation d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale ne peut, pour ce qui est des décisions ou ordonnances rendues, des mesures prises ou de toute question soulevée dans le cadre de la présente loi ou de ses textes d'application " règlements ou règles " se faire qu'avec l'autorisation d'un juge de la Section de première instance de la Cour fédérale. |
| 82.2 (2) Exception - Subsection (1) does not apply with respect to a decision of a visa officer on an application under section 9, 10, 77 or any other matter arising thereunder with respect to an application to a visa officer. |
82.1(2) Exception - Le paragraphe (1) ne s'applique pas aux décisions prises par l'agent des visas dans le cadre des articles 9, 10 ou 77 ni aux questions soulevées par toute demande qui lui est faite dans ce cadre. |
A decision to allow landing on humanitarian and compassionate grounds is made by the Minister or the Minister"s delegate pursuant to ss. 114(2) of the Immigration Act and s. 2.1 of the Immigration Regulations, 1978. Those provisions read:
| ss. 114(2) - The Governor in Council may, by regulation, authorize the Minister to exempt any person form any regulation made under subsection (1) or to otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted form that regulation or that the person"s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
114 (2) - Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière. |
| 2.1 - The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted form theat regulation or that the person"s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
2.1 - Le ministre est autorisé à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe 114(1) de la Loi ou à faciliter l'admission au Canada de toute autre manière. |
In the case at hand, the decision to deny the humanitarian and compassionate request was made by Program Manager Oppertshauser, the Minister"s delegate pursuant to 2.1 of the Immigration Regulations .
The exemption provided for in subsection 82.1(2) applies to "a decision of a visa officer on an application under section 9, 10, 77 or any other matter arising thereunder with respect to an application to a visa officer". The French equivalent states "aux décisions prises par l'agent des visas dans le cadre des articles 9, 10 ou 77 ni aux questions soulevées par toute demande qui lui est faite dans ce cadre." The plain wording of "any other matter arising thereunder with respect to an application" does not have the effect of enlarging the class of decisions which are exempt from leave.
I find support for my interpretation of section 82.2 of the Immigration Act in Rajadurai v. Canada (MCI)4. In this case, two applications for permanent residence were refused by a visa officer. Two subsequent considerations on humanitarian and compassionate grounds were refused by a program manager. One applicant received one letter with two separate parts indicating both the visa officer"s and the program manager"s signatures. The other applicant received two separate letters.
In that case, counsel for the applicant had argued that "treating the response as two decisions, one requiring leave and the other not requiring leave, is a technical, impractical and abstractionist approach". Counsel had further argued that "ss. 82.1(2) was added, in part, because the 15 day time limit for the filing of applications was impractical with respect to the decisions of visa officers made abroad"5.
Notwithstanding these arguments, Reed J. concluded that the wording of section 82.1 of the Immigration Act did necessitate the filing of two separate applications. Of those two applications, the decision dealing with the humanitarian and compassionate request required leave. I agree with that conclusion.
I find further support for this conclusion in the recent Supreme Court decision in Baker v. Canada (MCI)6. In this decision, L"Heureux-Dubé J., articulated a general principle regarding decisions based on humanitarian and compassionate considerations. She stated that "[...] there is no appeal procedure [for humanitarian and compassionate decisions], although judicial review may be applied for with leave of the Federal Court - Trial decision"7.
Consequently, the applicant"s notice of Application for Judicial Review of Murray Oppertshauser, Program Manager, dated August 18, 1998, is dismissed on the ground that: (a) it is a separate decision from that of J. Ng; and
(b) it is a decision that requires leave under subsection 82.1(2) of the Immigration Act and leave has neither been sought nor obtained.
As a result, the applicant"s notice of application for judicial review, filed September 18, 1998, is amended to refer only to the judicial review of the decision of J. Ng, Designated Immigration Officer, dated August 11, 1998. That decision is not subject to the leave provisions.
No question will be certified with respect to the above issue since Reed J. has already certified a similar question in Rajadurai v. Canada (MCI)8.
Issue 2: Did the visa officer commit a reviewable error when concluding that the applicant did not meet the requisite points to fall under Assisted Relative category?
Officer Ng denied the applicant"s application for permanent residence under the Assisted Relative category.
The first issue raised concerns the 0 points accorded to the applicant for his ability in English. According to the applicant"s affidavit, the visa officer stated that the since the applicant only had a Form 3 education, the applicant"s English could not be at a "well" level as indicated on his application. This, according to the applicant, discouraged him to speak English. By failing to accord the applicant with a proper opportunity to demonstrate his ability to communicate in English, the visa officer erred when attributing the applicant 0 points for English.
The visa officer"s comments, although hasty, do not constitute a breach of procedural fairness. As indicated by the certified record, the Officer Ng did submit to the applicant a written test in which the applicant could only write a few lines of English in a five minute period. The certified record also suggests that the applicant had great difficulty in understanding and expressing himself in English and was unable to read a small paragraph in simple English given to him. By submitting the applicant a reading, writing and communication test, I am of the opinion that the visa officer fulfilled her duty to act fairly towards the applicant. I further conclude that it was not unreasonable for the visa officer to accord the applicant 0 points for English. I will therefore not intervene on that point.
The second issue raised concerns the 0 points accorded to the applicant for his education. Although the applicant had stated in his application that he had completed two years of high school, no documentary evidence was provided prior to the interview. The applicant deposes in his affidavit that during the interview, the visa officer never asked him to provide any proof of his education.
However, the visa officer"s interview notes would seem to indicate that the question of proof was in fact put to the applicant. CLAIMS COMPLETED 2 YRS H.S. IN HK, NO PROOF. STATED SCHOOL CLOSED DOWN NEXT YEAR.
This ground does not materially change the applicant"s situation since counsel conceded that it would result in only 2 additional points being granted to the applicant.
Furthermore, subsection 8(1) of the Immigration Act clearly states that where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada lies with the applicant.
Lastly, the applicant drew the court"s attention to a letter signed by a Vancouver hair salon offering the applicant employment. The letter reads as follows:To whom it may concern:
| We understand that Lee, Wei Kei is now applying for immigration to Canada. |
| We shall be pleased to offer to him the position as a hair stylist in our salon as soon as he can successfully immigrate here. |
This offer was conveyed to the visa officer by way of letter dated July 17, 1998. The applicant contends that this letter of employment should have been considered by the visa officer and as such, should have been accorded some points under the "arranged employment" category.
| However, the visa officer was under no obligation to attribute any points under the "arranged employment" where the offer was informal. The offer was not certified by the National Employment Services as being one for which there are no qualified Canadians. In any event, the unofficial offer was duly considered by the visa officer. As stated in her interview notes:PI HAS INFORMAL JOB OFFER FROM A HAIR DESIGN SHOP IN VANCOUVER STATED OWNER OF THE SHOP IS ONE OF HIS FRIENDS AND THIS FRIEND PROMISED TO OFFER HIM A JOB AS A HAIR STYLIST. |
The fact that the applicant did have an informal job offer contributed to the applicant receiving 7 points out of a possible 10 under "personal suitability".
Consequently, the visa officer committed no reviewable error with respect to the applicant"s evaluation.
Based on the above, there are no grounds for review in the present case. The application for judicial review is dismissed.
____________________________
Associate Chief Justice
Ottawa, Ontario
October 26, 1999
__________________3 R.C.S. 1985, c. I-2, as amended.
4 [1999] F.C.J. No. 432 per Reed J.
6 Baker v. Canada (Minister of Citizenship and Immigration) [1999] S.C.J. No. 39.