Date: 20000608
Docket: IMM-5312-99
BETWEEN:
KENNETH C.K. CHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for judicial review of a decision dated September 23, 1999, wherein Raymond Gabin (the "visa officer") refused the application of Kenneth Chau Kam Chan (the "Applicant") for permanent residence in Canada.
[2] The Applicant was assessed under the National Occupational Classification ("NOC") under the occupation of financial consultant. However, the visa officer found that the Applicant did not have the requisite qualifications as stipulated in the NOC. The Applicant was also assessed as a customer service representative and awarded the following units of assessment:
| Age 10 |
| Occupational Factor 00 |
Specific Vocational Preparation
| or Education Training Factor 05 |
| Experience 02 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 15 |
| Knowledge of English and French 08 |
| Assisted Relative Bonus 00 |
| TOTAL 48 |
As the Applicant only obtained 48 units of assessment, his application for permanent residence was refused.
[3] The Applicant has resided in Ontario since 1991 when he came to Canada to attend high school. He worked at the Bank of Montreal after graduation on the basis of a one-year post-graduate employment authorization which expired on January 12, 2000.
[4] The Applicant submits that he was a suitable candidate for the exercise of positive discretion. The Minister of Citizenship and Immigration (the "Respondent") maintains that there is no evidence showing that the Applicant made any request for positive discretion under subsection 11(3) of the Immigration Regulations, 1978.
[5] Subsection 11(3) of the Immigration Regulations provides:
| 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. |
L'agent des visas peut a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10, s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier. |
[6] In the case at bar, the Applicant never asked for an 11(3) assessment. In Lam v. Canada (Minister of Citizenship and Immigration) (1999), 152 F.T.R. 316 (T.D.), Justice Rothstein, as he then was, opined that some form of application is required when an applicant wishes the visa officer to consider whether his or her case is appropriate for a grant of positive discretion under subsection 11(3). Justice Rothstein wrote:
| Subsection 11(3) does not specify what is required to engage the visa officer's exercise of discretion under it. Nothing precludes the visa officer, on his or her own motion, from proceeding under subsection 11(3) if he or she considers that it is warranted to do so._ However, if an applicant wishes the visa officer to exercise discretion under subsection 11(3), it would seem that some form of application would be required._ While there is no prescribed wording to which an application must adhere, I would think the application would at least have to indicate some good reasons why a units of assessment determination would not reflect the chances of successful establishment in Canada by the applicant. There was no such application here. |
| The applicant says he would not know that he must make an application to request subsection 11(3) consideration until he is told his application fails under the units of assessment determination, and this is a reason for a personal interview. However, this argument is misplaced. The visa officer is not required to provide a piecemeal ongoing determination and advise the applicant at each stage, even if a personal interview is conducted. The units of assessment award is the conventional way in which visa officers determine whether an immigrant visa may be issued. Subsection 11(3) is exceptional. Where an applicant has reason to believe that he or she may be established in Canada, irrespective of the units of assessment determination, he or she should apply for a determination under subsection 11(3) setting forth relevant reasons.1 |
[7] Madam Justice McGillis cited this reasoning with approval in Savvateev v. Canada (Minister of Citizenship and Immigration) (1999), 170 F.T.R. 317 (T.D.). However, Madam Justice McGilllis also made the following comments:
| Although I am in general agreement with the comments made by Rothstein J., his requirement that "some form of application" is required where an applicant wishes a visa officer to exercise his or her discretion under subsection 11(3) must be read in the context of the facts before him, in which the applicant had no experience whatever in his intended occupation. In particular, there was nothing on the face of the application to suggest that there were "some good reasons why a units of assessment determination would not reflect the chances of successful establishment in Canada by the applicant". The facts considered by Rothstein J. in Lam v. Canada (Minister of Citizenship and Immigration), supra, are therefore distinguishable from those in the present case, in which the applicant was not only qualified in his intended occupation as an electronic equipment repairer, but he also had a bona fide job offer in his field with a Canadian company.2 |
[8] Counsel for the Applicant submits that the present matter is similar to the situation in Savvateev, supra, as a result of the existence of a letter dated June 9, 1999 which was submitted in evidence. This letter was written by Marie Sibley, Senior Manager, Customer Service at the Bank of Montreal, and indicates that the Applicant has been employed at the bank since January 1999. The letter also states that the Applicant has future potential with the bank.
[9] Nevertheless, having reviewed the letter, it does not amount to an outstanding offer of employment and thus, I am of the opinion that the visa officer did not err by failing to consider whether positive discretion should be exercised. In addition, I would note that the Applicant was found not to be qualified in his intended occupation of financial consultant and was awarded zero units of assessment for Occupational Demand when he was assessed as a customer service representative.
[10] The visa officer did not act arbitrarily, capriciously or in an otherwise unreasonable manner in failing to exercise the positive discretion conferred on the visa officer by virtue of subsection 11(3) of the Immigration Regulations. The parties indicated that they have no question to certify in this matter.
[11] Accordingly, the application for judicial review is dismissed.
"Elizabeth Heneghan"
J.F.C.C.
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