IMM-2153-96
B E T W E E N:
SEWNARINE JOHN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D. J.:
INTRODUCTION
This is an application for judicial review of a decision by visa officer Kenneth Hosely of the Canadian Embassy in Guatemala City dated April 15, 1996 (the "visa officer") in which he refused the applicant's sponsored application for permanent residence. The applicant was assessed as both a General Machinist (52 units) and as a Turner (35 units). Since 70 units are required for permanent residence in Canada, the applicant's application was refused.
THE VISA OFFICER'S DECISION
Under the assessment as General Machinist, the assessment suggested by applicant's counsel was accepted in large part. However, experience (Factor 3) was assessed at 4 units rather than the suggested 6 units. Also education (Factor 1) was assessed at zero units rather than the 10 units suggested by counsel. These two changes left the applicant with an insufficient number of units under this assessment. Under the category of Turner the visa officer arrived at an assessment of 35 units under this category. On this basis he concluded that the applicant was inadmissable pursuant to subsection 19(2) of the Act and refused his request for an immigrant visa. He concluded further that there were insufficient grounds for an exemption on humanitarian and compassionate grounds.
FACTS
Insofar as the application as a General Machinist was concerned, the visa officer forwarded the educational documents submitted by the applicant to the Canadian High Commission in Trinidad for evaluation. He received from the High Commission general information on equivalence prior to making his negative decision on this application by the applicant.
ISSUES
The applicant raises three issues:
| 1. Did the visa officer correctly assess the applicant's educational qualifications? |
| 2. Did the visa officer fetter his discretion by imposing an educational equivalency standard set by the Canadian High Commission in Trinidad? |
| 3. Was the applicant denied procedural fairness since he was not allowed to respond to the visa officer's concerns relating to his educational qualifications? |
ANALYSIS
In my view, the visa officer has committed reviewable error. He perused the educational documents provided. He then purported to apply the provisions of paragraph 1(a) of factor 1, Schedule I of the Immigration Regulations, 1978. That provision reads "... units of assessment shall be awarded as follows: (a) where a diploma from a secondary school has not been completed, zero units;" By referring the question of the significance to be given to Trinidadian educational documents to the High Commission in Trinidad, he fettered his discretion in my view. While he is undoubtedly able to seek advice on such an issue from qualified and informed colleagues, procedural fairness made it mandatory for him to give the applicant an opportunity to rebut the assessment made on the basis of the advice which he had received from his colleagues. At the very least, the visa officer should have given the applicant an opportunity to make written submissions on this matter before his decision was made. The applicant cites the Yhap decision1 in support of his submission that reliance on the opinion of immigration officials in Trinidad amounts to a fettering of the discretion vested in the visa officer. The Muliadi decision in the Federal Court of Appeal is even more persuasive authority2. In that case, the visa officer at the beginning of his interview with the applicant, informed him that his application had been refused because the Ontario Government had made a negative assessment of his business proposal. The Court held that the visa officer was under an obligation to inform the applicant of the negative assessment and to give him a reasonable opportunity to made submissions to the visa officer before he made his decision. There also, the statutory framework did not entitle the applicant to a full oral hearing. However, the duty cast upon him to act fairly required that the applicant be given the opportunity to address the negative assessment before it was acted upon to the applicant's prejudice. The Muliadi case also held that the delegation of the visa officer's discretion to the Ontario authorities amounted to reviewable error. In my view, the situation at bar is very similar to the Muliadi situation. Additionally, the decision of the Federal Court of Appeal in Shah v. M.E.I. supports the applicant's position.3 In Shah, Hugessen J.A. stated:
| It is a commonplace that the content of the duty of fairness varies according to the circumstances. In the present case we are all of the view that such content was minimal. The decision in question (the attack on which was dismissed by the judgment under appeal) was that of an immigration officer charged with making a recommendation to the Governor in Council as to the exercise of the latter's discretion to grant an exemption to the applicant from the requirements of subsection 9(1) of the Immigration Act on humanitarian or compassionate grounds. The power to grant such exemption resides in subsection 114(2) of the Act. The decision itself is wholly a matter of judgment and discretion and the law gives the applicant no right to any particular outcome. In this respect it differs from many other decisions, e.g. by a visa officer dealing with a sponsored application for landing, where the law establishes criteria which, if met, give rise to certain rights. |
| In a case such as this one the applicant does not have a "case to meet" of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. Of course, if she is going to rely on extrinsic evidence, not brought forward by the applicant, she must give him a chance to respond to such evidence. |
(Emphasis added)
Since the applicant was not given the opportunity to respond to the extrinsic evidence relied on, it follows, in my view, that the decision of the visa officer cannot be allowed to stand.
CERTIFICATION
Counsel for the respondent suggested certification of two serious questions of general importance pursuant to the provisions of Section 83 of the Immigration Act. Those questions read as follows:
| 1. Does the duty of fairness require the visa officer who makes the decision relating to the evaluation of educational certificates submitted by the applicant (in cases where he has had assistance from another visa officer), to inform the applicant that he has obtained such information and provide to the applicant an opportunity to respond to that information before the visa officer makes his decision thereon? |
| 2. Is information concerning the evaluation of educational certificates by other Canadian embassies having specialized knowledge and expertise relating to such evaluations, properly considered to be extrinsic evidence in the context of assessing the duty of fairness owed to a visa applicant? |
In my view, neither of the questions posed raise a serious question of general importance. The central issues herein, as noted supra, are the issues relating to the fettering of the visa officer's discretion.
Accordingly the application for judicial review is allowed, the decision of the visa officer is set aside and the matter is referred back to another visa officer for rehearing and redetermination.
"Darrel V. Heald D.J."
Judge
Toronto, Ontario
January 17, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2153-96
STYLE OF CAUSE: SEWNARINE JOHN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JANUARY 15, 1997
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: HEALD, D. J. |
DATED: JANUARY 17, 1997
APPEARANCES:
Mr. Irvin H.Sherman, Q.C.
For the Applicant
Ms. Bridget O'Leary
For the Respondent
SOLICITORS OF RECORD:
Rekai & Johnson
Barristers and Solicitors
130 Bloor Street West
Suite 604
Toronto, Ontario
M5S 1N5
For the Applicant
Department of Justice
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-2153-96
Between:
SEWNARINE JOHN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 (1989), 9 Imm. L.R. (2d) 243.
2 [1986] 2 F.C. 205
3 Shah v. M.E.I. (1995), 29 Imm. L.R. Second Series p. 82 at p. 83.