Federal Court Decisions

     IMM-3634-95

BETWEEN:

     TAKUJI KUROTSU

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD J.

         This is an application pursuant to section 18.1 of the Federal Court Act for judicial review of a decision dated November 23, 1995, that was rendered by visa officer Ron McKay of the Canadian Embassy in Tokyo, Japan. The visa officer refused the applicant's application for permanent residence (independent immigrant category) on the grounds that the applicant had achieved insufficient units of assessment to qualify for immigration to Canada. The applicant is seeking an order quashing the visa officer's decision, an order compelling the respondent to process and/or reconsider the applicant's application for permanent residence in Canada, and an order for costs.

         The applicant was born on March 14, 1970 and is a citizen of Japan. On June 13, 1994, he submitted an application for permanent residence under the Independent Category at the Canadian Embassy in Tokyo, Japan. By letter dated November 23, 1995, the visa officer informed the applicant that it had been determined that he did not qualify for immigration to Canada on the following basis:

Pursuant to section 8(1) of the Immigration Regulations, 1978, independent applicants, in the class in which you have applied, are assessed on the basis of education, vocational preparation, experience, occupational demand, arranged employment or designated occupation, Canadian demographic factors, age, knowledge of English and French languages and personal suitability. You were assessed based on the requirements for the occupation of SALES-PROMOTION ADMINISTRATOR, CCDO (Canadian Classification and Dictionary of Occupations) Code 1179-154 (68 points) and INSURANCE AGENT 5171118 (63 points). In both of these occupations, you have obtained insufficient units of assessment to qualify for immigration to Canada. However, according to present selection standards, you might qualify for immigration to Canada if you are successful in obtaining a job offer which is certified by a Canada Employment Centre and indicates that no Canadian or permanent resident in Canada is qualified for that job.

         In his decision, the visa officer also states that the applicant might wish to submit a new application for permanent residence if he could obtain a job validation (EMP5056) certified by a Canada Employment Centre. In the visa officer's opinion, the applicant would have to wait for a year to make this application, given that he had two 27(1) reports filed against him. At page 2, the decision reads: "we do not believe you are eligible to apply for a job validation until after mid-1996 in accordance with Section 20(2)(a) of the Immigration Act and Regulations".

         Although not found in the text of the decision letter under the 22 November, 1995 entry in his Case Summary, the visa officer indicates that he also evaluated the applicant's application to see if it merited the exercise of positive discretion under subsection 11(3) of the Immigration Regulations, 1978¹ (hereafter the Regulations). The visa officer found that the applicant's case "did not warrant this consideration".

         The applicant raises three issues in relation to the denial of his application for permanent residence:

(i)      Did the visa officer err in law by determining that, under paragraph 20(2)(a) of the Regulations, the applicant was not eligible for job validation?

(ii)      Did the visa officer err in law by basing his decision that the applicant was entitled to 6 points for personal suitability on erroneous findings of fact, made in a perverse or capricious manner or without regard for the material before him?

(iii)      Did the visa officer err in law by improperly exercising his discretion under subsection 11(3) of the Regulations?

         In my view, only the second and third issues raised by the applicant are relevant to the present judicial review application. The visa officer's opinion that the applicant would not be eligible to apply for job validation until one year had passed, pursuant to subsection 20(2) of the Regulations, had no bearing on his refusal of the applicant's application for permanent residence in Canada.

         With respect to the second and third issues, I can find no convincing evidence that the visa officer relied on irrelevant considerations, namely the two subsection 27(1) reports issued against the applicant, either in his assessment of the applicant's personal suitability, or in his decision not to exercise positive discretion under subsection 11(3) of the Regulations. In my opinion, the visa officer only took the two subsection 27(1) reports into consideration when formulating his opinion that the applicant would be ineligible to apply for job validation for a period of one year, pursuant to subsection 20(2) of the Regulations. Furthermore, the visa officer's opinion that the applicant had insufficient managerial experience to qualify him for any more that 6 points under the "Personal suitability" heading, cannot be said to be unreasonable in light of the evidence that was before him. Another visa officer may well have granted the applicant a greater number of points, but that is not a ground which is in and of itself sufficient to justify disturbing the visa officer's decision.² Finally, in the absence of bad faith or a blatant disregard of pertinent evidence, I can find no reason to impugn the visa officer's decision not to exercise positive discretion in the applicant's favour, pursuant to subsection 11(3) of the Regulations.³

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         Consequently, the application for judicial review will be dismissed. Given the particular factual context of this case, I consider that this application raises no serious question of general importance that would warrant certification.

OTTAWA, Ontario

January 6, 1997

                                

                                         JUDGE

__________________

     ¹      SOR/78-172.

     ²      See Chen v. Canada (M.C.I.) , [1995] 1 S.C.R. 725, rev'g [1994] 1 F.C. 639 (F.C.A.), rev'g [1991] 3 F.C. 350 (F.C.T.D.) and Zeng v. Canada (M.E.I.) (1991), 121 N.R. 252 (F.C.A.).

     ³      See Savin v. Canada (M.C.I.) (1995), 102 F.T.R. 67 (F.C.T.D.) and Chen, ibid.