Date: 19990928
Docket: IMM-2343-98
BETWEEN:
YONGQI ZENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This an application for judicial review of the decision of visa officer Nora Egan, at the Canadian Consulate General in Buffalo, New York who refused the applicant"s application for permanent residence to Canada by letter dated May 8, 1998.
FACTS
[2] In December 1991 the applicant entered the United States and resided there without status. Within two months of his arrival, he secured a job as a chef. Three years later he left the restaurant to become a head chef at another restaurant.
[3] He applied for permanent residence in Canada as "head chef". His counsel by letter dated February 2, 1998 admitted that the applicant did not meet the selection criteria but asked the visa officer to exercise discretion provided under subsection 11 (3) of the Immigration Regulations .
DECISION OF VISA OFFICER
[4] The visa officer assessed the application and accepted the applicant"s training and experience in the occupation of a head chef. However, she determined that the applicant did not obtain the sufficient points to immigrate to Canada. The applicant was given 52 units of assessments.
[5] The visa officer then considered whether positive discretion should be exercised pursuant to subsection 11 (3) of the Immigration Regulations. She decided that there is no ground to warrant the positive discretion. No unit of assessment were awarded for personal suitability as the visa officer concluded even with the 10 maximum points provided for this factor, the applicant would still not reach the minimum units required.
The visa officer refused the applicant"s application for permanent residence by letter dated May 8, 1998.
Units of Assessment
| Your Score Maximum |
| Age 10 10 |
| Occupational Factor 10 10 |
| Educational Training Factor 7 18 |
| Experience 4 8 |
| Arranged Employment 0 10 |
| Demographic Factor 8 8 |
| Education 13 16 |
| Knowledge of English/French 0 15 |
| Assisted Relative Bonus 0 5 |
| Total 52 |
THE APPLICANT"S ARGUMENTS
[6] The applicant suggests that the visa officer under assessed ETF and thus experience. The applicant suggests that the applicant should have been awarded 15 units for that.
[7] The applicant also suggests that the visa officer fettered her discretion in purporting to make a subsection 11 (3) review. The applicant insisted that the visa officer did not give reasons why she refused to exercise her discretion pursuant to subsection 11(3) and particularly why the visa officer did not consider the success of the applicant in establishing temporarily in the United States as a chef.
[8] The applicant suggested that the visa officer should have applied reasonable standard in the assessment of the applicant. The applicant finally suggests that costs should be awarded because the visa officer"s cursory refusal in the face of the evidence of successful establishment and particularly because the decision is "prima facie" improper.
RESPONDENT"S ARGUMENTS
[9] The respondent suggests that the applicant"s application is not supported by a proper affidavit.
[10] The respondent suggests that the applicant has not demonstrated that the visa officer committed a reviewable error. The applicant did not satisfy the visa officer that he was admissible to Canada.
[11] The respondent suggests that the visa officer correctly assessed the applicant"s intended occupation and also properly exercised her discretion under subsection 11 (3).
[12] Finally, the respondent suggests that there is no requirement in the Federal Court Rules,1998 for the respondent to submit an affidavit and the onus remains on the applicant to demonstrate the basis for the Court to intervene and both parties submit the evidence they wish to submit. Counsel for the respondent suggests that the CAIPS notes are properly before the Court and should be considered in the review of the visa officer"s decision.
ANALYSIS
[13] The Court has to respond to a preliminary question. Is the applicant"s application supported by proper affidavits? Pursuant to Rule 306, within 30 days of a notice of application, an applicant shall serve and file its supporting affidavits and documentary exhibits. In Brychka v. Canada (A.G.) (1998) 141 F.T.R. 258, the Court held that it can consider only the evidence that was before the administrative decision-maker and not new evidence.
[14] In Nelson v. Commr. Of Corrections (Can) (1996), 206 N.R. 180, the Federal Court of Appeal held that persons other than the applicant can be the deponent of an affidavit in support of an application for judicial review. The affidavits must be based on matters of personal knowledge.
[15] In Mui v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 378, Justice Reed concluded :
| With respect to the affidavit of Priscilla Lee, portions of that affidavit are irrelevant, some of it would have been better coming directly from Mr. Mui, as within his personal knowledge, and there is a great deal of hearsay in the affidavit. I am not, however, treating it as having been struck from the record. Nor am I going to go through it and identify those paragraphs that should be struck and those that can remain. I note only that, to the extent I have relied upon it (which is hardly at all), I have kept in mind and applied the relevant rules of evidence. |
[16] The affidavit provided by Ms. Priscilla Lee in the case at bar, contains mostly information irrelevant to this case with the exception of two paragraphs out of twenty-six. Consequently, I doubt that this affidavit would be useful. This affidavit is weak. So, I will not reject the application because the affidavit is weak, but I cannot give it more importance.
[17] The Court will now consider whether the visa officer erred in law in under assessing the applicant.
[18] The visa officer followed the General Occupation List which indicates that the ETF for chefs is seven units. There is no reason to conclude to under assessment.
[19] The Court has now to consider whether the visa fettered her discretion under subsection 11(3).
| 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), or b) refuse to issue an immigrant visa to an immigrant who is not 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. |
(3) 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. |
[20] In the present case, not only the visa officer thought the number of units of assessment awarded reflects the chances of the applicant to establish himself in Canada, she was convinced of it. According to the wording of subsection 11(3), it is sufficient reason to refuse the exercise of subsection 11(3) decision.
[21] Under subsection 11.1, the visa officer was not required to ask the applicant for an interview and the suggestion by counsel for the applicant that the visa officer should have given reasons why she was not assessing the fact that the applicant has succeeded well in establishing as a chef in the United States has to be rejected; the visa officer was not obliged in any way pursuant to the rule to assess those elements under subsection 11 (3).
| 11.1 For the purpose of determining whether an immigrant and the immigrant's dependants will be able to become successfully established in Canada, a visa officer is not required to conduct an interview unless, based on a review of the visa application and the documents submitted in support thereof, a) the immigrant is an immigrant described in paragraph 8(1)a) and is awarded, for the factors set out in column I of items 1 to 8 of Schedule I, including, where required by these Regulations, at least one unit of assessment for each of the factors set out in column I item 3 and 4 of that Schedule, i) at least 60 units of assessment, where the immigrant is not an assisted relative. |
11.1 Afin de déterminer si un immigrant et lespersonnes à sa charge pourront réussir leur installation au Canada, l'agent des visas n'est pas obligé de tenir une entrevue, sauf si l'immigrant, d'après l'étude de sa demande de visa et des documents à l'appui : a) soit est visé à l'alinéa 8(1)a) et se voit accorder au moins le nombre suivant de points d'appréciation pour les facteurs mentionnés à la colonne I des articles 1 à 8 de l'annexe I, y compris, dans les cas où le présent règlementl'exige, au moins un point d'appréciation pour chacun des facteurs mentionnés à la colonne I des articles 3 et 4 de cette annexe : (i) 60 points d'appréciation, dans le cas d'un immigrant qui n'est pas un parent aidé. |
[22] In Shum v. M.C.I., [1995] F.C.J. no 1108, Justice McKeown said :
| I do not see anywhere in subsection 11(3) a requirement that an interview be conducted before discretion can be exercised. |
[23] In Chen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 528, Justice Evans stated :
| In my opinion, the fact that the applicant has been economically self-sufficient in the United States while working at the occupation that he intends to pursue in Canada is a relevant factor that a visa officer ought to take into account when considering whether an applicant's ability to become successfully established in Canada is adequately reflected by the units of assessment awarded on the basis of the factors listed in Schedule I. |
| However, it is not a function of this Court to determine whether the visa officer has given sufficient weight to this consideration. This is a matter for the exercise of the statutory discretion entrusted to the visa officer in light of the complete file, including how close the applicant is to obtaining the normally required number of units of assessment. Only if the visa officer's exercise of discretion can be characterized as arbitrary or capricious or otherwise unreasonable should the Court intervene. |
[24] In Khan v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 286, Justice Richard concluded :
| While the discretion conferred on the visa officer under s. 11(3) is a broad one, it is not an unrestricted discretion at large, either to reject or to grant an application for permanent residence. It must be exercised in good faith and for the purpose it was given. It cannot be based on irrelevant considerations or ignore relevant considerations. |
[25] There is no evidence that the visa officer used her discretion in bad faith or in an arbitrary way. She assessed the applicant"s chance of successful establishment in Canada and was convinced that she should not exercise her discretion. The Court should not intervene.
[26] Concerning the standard of review, in my view, it was not unreasonable for the visa officer to conclude as she did.
[27] Concerning costs, I have received representations from both parties but I am not convinced that I should allow costs in this particular case. The applicant"s counsel failed to demonstrate that the visa officer made her decision in bad faith, the special reasons raised by counsel have no grounds.
[28] In my view the applicant failed to convince this Court that it should intervene. I am not convinced that the visa officer has made a reviewable error.
CONCLUSION
[29] For those reasons this application for judicial review is dismissed.
[30] The parties have not submitted any serious question at the hearing. The applicant was allowed seven days from the hearing until September 15, 1999 to suggest any serious questions to certify, and counsel for the respondent was allowed seven days from the reception of that or those suggested serious questions by the applicant, to respond.
[31] Counsel for the applicant decided to submit 10 questions after the delay allowed. Counsel for the respondent has submitted that the suggested questions were not filed within the time prescribed by the Court, and should be rejected.
[32] Given that the applicant has not complied with the delay prescribed, no questions will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 28, 1999