Date: 19991125
Docket: IMM-5312-99
BETWEEN:
KENNETH K.C. CHAN
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.
| [1] The applicant seeks an injunction requiring the Minister to allow him to continue working and to take no enforcement action against him until the within judicial review of a visa officer"s decision denying him an immigrant visa has been finally determined. |
| [2] The applicant is presently working as a customer service representative (a teller) for the Bank of Montreal. He is doing so under a one-year post-graduate employment authorization, which expires on January 12, 2000. He came to Canada as a student in August 1991; he obtained a B.A. degree in Social Sciences (Economics) from the University of Ottawa on October 14, 1998. |
| [3] On July 6, 1999, he applied for permanent residence in Canada via the visa office in Buffalo, N.Y. He sought landing as a financial consultant, an occupation in which the visa officer found he was not qualified because he had provided no evidence of on-the-job training, or industry courses, or programs. The visa officer awarded the applicant zero points for experience as a financial consultant. |
| [4] The applicant"s application indicates that he hopes to obtain a securities licence in December, 1999, after having written the Canadian Securities Institute examinations. As noted, his application for landing was filed on July 6, 1999. The visa officer"s assessment and refusal of his application issued on September 23, 1999. |
| [5] The visa officer assessed the applicant in the occupation of customer service representative as well as in that of financial consultant. The former, however, is an occupation for which no points for occupational demand are awarded. |
| [6] As a result of the applicant"s lack of qualifications and experience in the one occupation, and the lack of demand in Canada for individuals qualified in the other, the applicant"s application for landing was denied. |
| [7] Madame Justice McGillis, in Savvateev v. The Minister of Immigration (IMM-4457-97, June 8, 1999), recently described a visa officer"s obligation under Immigration Regulation 11(3). That provision allows a visa officer to issue an immigrant visa to a person even though he or she does not obtain the normally required number of points if the visa officer is of the opinion that there are good reasons why the points do not reflect the individual"s chances of establishment. That provision applies even when zero points have been awarded for the experience factor. |
| [8] The relevant provisions of the Immigration Regulations are: |
| 11.(1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa ...to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof [experience in the occupation in which the person is assessed] |
....
| 11.(2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa ... to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless (a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of column I of Schedule I_ [occupational demand in Canada] |
....
| 11.(3) 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) |
....
| 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 ...becoming successfully established in Canada ... |
| [9] The decision in Savvateev held that where there was something on the face of an application to suggest that there might be good reasons that could bring subsection 11(3) into play, a visa officer had an obligation to consider its application, even though the applicant had not expressly requested subsection 11(3) consideration. In the present case, there is a glowing letter from the applicant"s present supervisor that raises the possibility that subsection 11(3) should have been considered. (This will be a matter for determination when the judicial review application is heard on its merits.) The visa officer did not address subsection 11(3) when making the September 23, 1999, decision. |
| [10] In order to obtain an injunction, an applicant must demonstrate not only a serious question to be tried but also that irreparable harm will arise for the applicant in the absence of an injunction, and that the balance of convenience lies in the granting rather than refusing the injunction. In this case, the applicant has demonstrated that there is a serious question to be tried. I turn then to the question of irreparable harm. |
| [11] When the applicant"s visa runs out in mid-January, he will no longer be able to work for the Bank of Montreal. It is my understanding that like many individuals who obtain post-graduate employment authorizations consequent upon coming to Canada as a student, he will no longer be allowed to work in Canada. The applicant will be prevented from acquiring further occupational experience in Canada. He may be required to leave Canada. This does not, however, render his judicial review application or his existing application for an immigrant visa moot. The facts on which his present application are based will not change, and the facts on which the judicial review of the September 23, 1999, decision will proceed are those that were in existence as of that date, not some later time. The applicant will not be able to augment the strength of any second application he might make by acquiring further experience in Canada, but this cannot be equated to irreparable harm that justifies an injunction ordering the Minister to continue the applicant"s current employment authorization. |
| [12] Indeed, the existence of any harm at all is premised on the assumption that the visa officer"s decision was inadequate, that a reconsideration will be ordered, and that on a reconsideration by another visa officer, that visa officer would exercise his or her discretion in the applicant"s favour. Such harm at this point is speculative, not possessing the degree of probability required for the issuance of an injunction. |
| [13] It is clear that it would be more convenient for the applicant to be able to remain in Canada while his judicial review application is processed, and if successful, while his visa application is reprocessed through the Buffalo office, but such a reprocessing can also be done in Hong Kong, the city from which the applicant came. Inconvenience to the applicant does not equate to irreparable harm. |
| [14] While the applicant has demonstrated a serious question to be tried, he has not established that irreparable harm will arise as a result of the non-issuance of an injunction. |
| [15] For the reasons given the motion is denied. |
"B. Reed"
Judge
Toronto, Ontario
November 25, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-5312-99 |
| STYLE OF CAUSE: KENNETH K.C. CHAN |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: MONDAY, NOVEMBER 22, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: THURSDAY, NOVEMBER 25, 1999
| APPEARANCES: |
Mr. Timothy Leahy
| For the Applicant |
| Mr. Brian Frimeth |
| For the Respondent |
| SOLICITORS OF RECORD: |
Timothy E. Leahy, Esq.
Barristers and Solicitors
5075 Yonge Street
Suite 408
North York, Ontario
M2N 6C6
| For the Applicant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19991125
Docket: IMM-5312-99
Between:
| KENNETH K.C. CHAN |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.