Date: 19990226
Docket: IMM-2001-98
BETWEEN:
YONGZHONG CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision dated March 23, 1998 of visa officer Claire Wittenberg, Canadian Consulate General, Buffalo, New York, USA, wherein the applicant"s application for permanent residence in Canada was refused.
FACTS
[2] The applicant requested assessment as a Head Chef, making reference to code 6121-112 in the Canadian Classification and Dictionary of Occupations (the "CCDO"). However, the application was received by the Canadian Consulate General, in Buffalo, on May 6, 1997.
[3] Therefore, the applicant was assessed pursuant to the National Occupational Classification (the "NOC"), which came into effect for assessment of cases received on or after May 1, 1997, under NOC code 6241.3, the code of the equivalent occupation of Chefs and Specialists Chefs.
[4] In a letter from the visa officer dated March 23, 1998, the applicant was advised that his application for permanent residence to Canada was refused.
APPLICANT"S RELEVANT ARGUMENTS
[5] The applicant suggests that the visa officer has exceeded her jurisdiction because she had to render her decision within a period of twelve weeks, and she rendered her decision after eight months, so she has lost her jurisdiction.
[6] The applicant suggests that the visa officer erred in that she failed to assess the applicant under CCDO criteria because his application was filed before May 1, 1997.
[7] The applicant suggests that he should be entitled to be awarded 13 units for education.
[8] The applicant also suggests that the visa officer willfully breached the Muliadi Principal and also improperly delegated her obligation to assess "ETF" (Education Training Factor) to the computer.
[9] The applicant also suggests that the visa officer under-assessed "ETF" and "Experience" and that he should have been awarded 15 units for the Educational Training Factor and 6 for experience.
[10] The applicant suggests that the visa officer failed to access all applicable provisions of the Act and Regulations because she refused to access section 11(3) of the Immigration Regulations.
RESPONDENT"S RELEVANT ARGUMENTS
[11] The respondent suggests that the visa officer has jurisdiction to render her decision and the applicant was never promised that his application would be processed within a specific period of time established to twelve weeks.
[12] There is no evidence whatsoever relating to that.
[13] The respondent suggests that the applicant"s application was not received at the Buffalo Consulate until May 6, 1997, as it is stamped on the application.
[14] The respondent suggests that the visa awarded 10 points for education. To be awarded 13 points, the applicant would have to show that he had a diploma or apprenticeship certificate that (a) required at least one year of full time classroom study at a post-secondary institution and (b) the diploma required that the applicant had secondary schooling which would allow him to enter university.
[15] The respondent suggests that the visa officer assessed the applicant"s educational qualifications and determined that the applicant had to provide evidence that the Fuzhou Civic Cook General School required completion of a secondary school diploma leading to university admission in China as a condition of admission; that evidence was not provided.
[16] The respondent suggests that the visa officer does not have any discretion as to the number of units awarded under the "ETF". The number of units is linked to a specific occupation. The NOC specifies how much formal training is necessary for a particular occupation and the degree of training required is reflected in the "ETF", so the visa officer has no discretion to change this number.
[17] In the present case, the visa officer indicated that the computer automatically provides the ETF number once a particular occupation was entered. She takes it upon herself to check that this number is the right one as set out in NOC. In this case, she had no concern that the right number was not prompted by the computer.
[18] The respondent suggests that there was no indication in the application that the applicant wished the visa officer to exercise her discretion under section 11(3) of the Immigration Regulations.
[19] Further, in considering this issue, the visa officer found no evidence of good reasons upon which she could exercise her discretion in favour of the applicant.
ANALYSIS
[20] The standard of review regarding decisions of visa officers has been established: In Chiu Chee To v. M.E.I.1, the Federal Court of Appeal held that the appropriate standard of review of the discretionary decisions of visa officers with respect to immigrant applications was the same as the enumerated in Maple Lodge Farms Ltd. v. Government of Canada et al.,2 at pages 7 and 8 where MacIntyre, J. stated as follows:
It is, as well, a clearly-established rule that the court should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility.
Where the statutory discretion has been exercised in good faith and, were required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[21] The applicant refers to a time frame of twelve weeks that is usually given by the Regional Program Centre and invoke the lost of jurisdiction by the Centre for failing to proceed in the given time. However, no evidence of a given notice of a time frame has been presented by the applicant, therefore this argument cannot be considered.
[22] The cut-off date for application of CCDO criteria is May 1, 1997. The applicant points to a money order dated April 25, 1997 and a letter of submission dated April 28, 1997 to show that the application was filed before May 1, 1997.
[23] However, these documents are no indications of the moment the application was filed. The applicant submits that the application was sent by Federal Express but no receipt indicating the date of delivery was filed as evidence.
[24] The evidence shows that the applicant"s application was received on May 6, 1997 (Tribunal record pp. 4, 58). Without any further evidence from the applicant, the Court has to find against the applicant since the onus is on the applicant.
[25] Therefore, the visa officer was correct in applying the NOC criteria which took effect May 1, 1997.
[26] Relating to the issue of education appraisal, the affidavit of the visa officer indicates that:
The applicant did not state, nor did he provide documents to indicate, that the Fuzhou Civic Cook General School required completion of a secondary school diploma leading to university admission in China as a condition of admission. According to the application and the other documents he supplied, the applicant has not completed a university degree. Therefore, then was the number of units that I awarded to the applicant for the factor of Education.3
[27] The applicant submits that given that the visa officer refused to share her concern with the applicant, the applicant can hardly be faulted for not having addressed it.
[28] In Lam v. Canada (Minister of Citizenship & Immigration)4, Justice Rothstein says:
There is no general obligation on a visa officer to make further inquiries where an application is ambiguous. The onus is on an applicant to file a clear application together with such supporting documentation as he or she considers admissible.
[29] In Hajariwala v. Canada (Min. Of Employment and Immigration)5
The Court observed that those seeking landing in Canada must satisfy an immigration officer that they meet the selection standards set out in the regulations. It is the responsibility of the applicant to produce all relevant information which may assist in his application.
Therefore, based on the evidence before the visa officer, she did not err with respect to her consideration of the applicant"s education.
[30] Regarding a breach of natural justice when proceeding with the assessment, I am of the opinion that the visa officer acted according to the requirements of the Regulations and based on the application and the documents, before her. It is clearly within the scope of discretion considered by section 22.1 of the Regulations for the visa officer to consider an application in such a manner. Therefore, there is no breach of the Muliadi Principle as alleged by the applicant.
[31] Relating to the issue of improper delegation in Educational and Training Factor assessment, since the visa officer has no discretion for this factor since it is linked to a particular occupation which provides for the corresponding Education Training Factor, there cannot be an improper delegation.
[32] Specifically, I do not believe that it would even be proper to speak of delegation since the visa officer is the one operating the computer and has control over the input and can monitor the results. Therefore, this argument is without merit.
[33] Given that I accept that the visa officer did not err in assessing the Educational and Training Factor which has a correlating effect on the Experience Factor, then the assessment of the Experience Factor is also correct.
[34] I agree with the respondent that upon the record before the visa officer, there was no request or no reason for the visa officer to use her discretion under section 11(3) of the Immigration Regulations 1978 and assess the applicant"s application on the basis of humanitarian and compassionate grounds.
[35] The wording of section 11(3) through the words "the visa officer may" and "if in his opinion" makes it clear that this is a broad discretion left to the appreciation of the visa officer.
[36] In Williams v. Canada6 the Court says:
...it is for the person attacking a discretionary decision to demonstrate that it is unlawful. This may be easy in some cases where the decision is patently perverse, patently unlawful as dealing with matters outside the jurisdiction of the decision-maker, or explicable only on the assumption of bad faith. Absent such factors, it is for the applicant for judicial review to bring forth evidence or argument as to why the decision is unlawful.
CONCLUSION
[37] Given that I have not seen any reviewable error that has been made by the visa officer, this application is dismissed.
[38] The parties will be given seven days from the date of this decision to suggest any serious question of general importance.
Pierre Blais
Judge
OTTAWA, ONTARIO
February 26, 1998
__________________1 F.C.A., May 22, 1996, A-172-93.