Federal Court Decisions

Date: 20020425

Docket: IMM-915-01

Neutral citation: 2002 FCT 465

BETWEEN:

                                     MANUEL HERNAN COLOMA NORAMBUENA,

                                                                                                                                                      Applicant,

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                                                                                                                                  Respondent.

                                                            REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1]                 Manuel Hernan Coloma Norambuena, in his application for judicial review, requests that the January 2, 2001 decision of a visa officer at the Canadian Embassy in Santiago, Chile, denying his application for permanent residence in Canada, be quashed and that the application be referred back for reconsideration.

[2]                 The applicant, a citizen of Chile, is self-employed. His brother, Marx Hugo Coloma, owns and operates two gas stations in Ontario, one in Ottawa and the other in Kanata. Both establishments retail gas, diesel, propane and confectionary products. The Kanata location is to be expanded to a full-size convenience store. In October 1998, Marx Hugo Coloma submitted an application to Citizenship and Immigration Canada (CIC) in Ottawa for approval of an Offer of Employment in which he proposed to employ his brother, the applicant, to assist him in the management and operation of the gas stations. The approval for the Offer of Employment was granted on January 28, 1999.

[3]                 The applicant previously lived in Canada from July 14, 1994 until July 2, 1998, having arrived as a refugee claimant. He left voluntarily when his application for refugee protection was refused. During the last six months of his time in Canada, Mr. Norambuena worked for his brother at the Ottawa gas station. On October 8, 1999, the applicant applied to the Canadian Embassy in Santiago, Chile for permanent residence in Canada in the assisted relative category. His application included his minor daughter as a dependant and listed his intended occupation as Assistant Manager. The application was forwarded to the Canadian Embassy in Buenos Aires, Argentina for processing and the applicant was interviewed by the visa officer on December 12, 2000 at the Canadian Embassy in Santiago, Chile. By correspondence dated January 2, 2001, the application was denied on the basis that the applicant failed to obtain sufficient units of assessment to qualify for immigration.

[4]                 At the outset of the hearing of the application for judicial review, counsel for the applicant raised an issue of relief that was not contained in the Applicant's Record. Notice was not given with respect to this issue nor was there any request to amend. Paragraph 5(1)(e) of the Federal Court Immigration Rules, 1993 provides that "[a]n application . . . shall set out the precise relief to be sought on the application for judicial review". Given that, the relief raised at the outset of the hearing was not raised or addressed in the Applicant's Record, it will not be considered here.

[5]                 The applicant attacks the decision of the visa officer on two grounds. The first is with respect to the units of assessment awarded by the visa officer, particularly those of age (0), English (2) and personal suitability (5). The second ground is that the visa officer breached her duty of fairness, which, it is alleged, included an obligation to consider whether she should exercise her discretion pursuant to subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172.

[6]                 At the hearing, counsel did not press the argument with respect to the units of assessment evaluation and submitted that the true issue was that of subsection 11(3). It was prudent for counsel to take such an approach. If the applicant had been awarded full assessment points for the aforementioned categories, other than age where the visa officer had no discretion to award anything other than 0 under Schedule I of the Immigration Regulations, Mr. Norambuena would still not have reached the requisite number of units to qualify for landing. Therefore, even if the visa officer had erred, the error would have been immaterial. An error that is not material to the outcome will not result in relief being granted: Patel v. Canada (Minister of Citizenship and Immigration), 2002 FCA 55, [2002] F.C.J. No. 178; Ahluwalia v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 125 (T.D.) and Syed v. Canada (Attorney General), [1999] F.C.J. No. 451 (T.D.).

[7]                 With respect to the second ground, the applicant argues that the visa officer had an obligation to consider exercising her discretion pursuant to subsection 11(3), whether or not the applicant requested that she do so. He cites Savvateev v. Canada (Minister of Citizenship and Immigration) (1999), 170 F.T.R. 317 in support of his argument. The applicant refers to the fact that special guidelines exist for the processing of applications for permanent residence in Canada under the family business category, the objective of which is to expand the opportunities for family reunification. Relying on Kwong v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1357 (T.D.), the applicant submits that economic reasons are the driving force behind the exercise of discretion under subsection 11(3). Economic reasons relate to the applicant's ability to make a living and establish himself in Canada, which is a forward-looking exercise.

[8]                 In summary, the applicant says that the units of assessment assigned do not properly reflect his ability to become established in Canada. He relies on the fact that he lived in Canada for four years, he has a brother in Canada, he has relevant experience, the position offered has been approved as bona fide by CIC and he has already worked successfully in the precise position that is being offered. All of these factors, submits the applicant, demonstrate that he has the ability to become established in Canada.

[9]                 Subsection 11(3) of the Immigration Regulations provides the visa officer with discretion to either issue or deny a visa in circumstances where the officer concludes, for reasons subject to written submission to, and approval by, a senior immigration officer, that the number of units of assessment awarded do not reflect the chances of the applicant becoming successfully established in Canada.

[10]            In Chen v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 78, Evans J. (as he then was) stated at page 83:

. . . it is not a function of this court to determine whether the visa officer has given sufficient weight to this consideration. This is a matter for the exercise of the statutory discretion entrusted to the visa officer in light of the complete file, including how close the applicant is to obtaining the normally required number of units. Only if the visa officer's exercise of discretion can be characterized as arbitrary or capricious or otherwise unreasonable should the court intervene. . . .

Without trespassing on the discretion conferred upon visa officers by s. 11(3),           I would have thought that the discretion in question is residual in nature, and should be decisive only in cases that present unusual facts, or where the applicant has come close to obtaining [the required] units of assessment. (Emphasis added)

[11]            Chen has been applied in several cases: Zeng v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1486 (T.D.); Lin v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1272, [2001] F.C.J. No. 1738 and Gao v. Canada (Minister of Citizenship and Immigration), 2002 FCT 43, [2002] F.C.J. No. 48.

[12]            The units of assessment is the conventional manner in which visa officers determine visa eligibility. The discretion provided for in subsection 11(3) is exceptional and an applicant must request that the visa officer exercise discretion where the application fails under the units of assessment determination: Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316. There may, however, be facts evident on the face of the application that reveal unusual circumstances, which should prompt the visa officer to consider whether to exercise discretion under subsection 11(3): Savvateev, supra.

[13]            Savvateev did not require that a visa officer exercise positive discretion. Rather, Justice McGillis concluded that ". . . the visa officer ought to have considered whether to exercise her discretion to issue a visa to the applicant under ss. 11(3) of the Regulations, given the facts revealed in the application for permanent residence . . ." . (Emphasis added)

[14]            I conclude that, here, there are unusual facts such as those contemplated in Chen, supra and that those facts are revealed in the application for permanent residence as in Savvatteev, supra. In the circumstances of this particular case and considering the unlikelihood that, in view of his age, this applicant could ever obtain sufficient units of assessment to qualify for permanent residence, the visa officer ought to have considered whether to exercise her discretion. There is nothing in her affidavit or in the CAIPS notes to suggest that the visa officer turned her mind to the exercise of discretion under subsection 11(3). Therefore, the application for judicial review is allowed. The decision of the visa officer dated January 2, 2001 is quashed and the application is remitted back to the Minister for prompt consideration in accordance with these reasons.

[15]            Counsel did not suggest a serious question of general importance therefore no question is certified under subsection 83(1) of the Immigration Act.

____________________________________

        Judge

Ottawa, Ontario

April 25, 2002