Date: 19990608
Docket: IMM-4457-97
BETWEEN:
YEVGENI SAVVATEEV,
Applicant,
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto,
Ontario, Tuesday, June 8th, 1999)
McGILLIS J.
[1] The applicant has applied for judicial review of the decision of a visa officer dated September 16, 1997, in which she denied his application for permanent residence without granting him a personal interview.
[2] The visa officer awarded the applicant 59 points on the paper screening, one point short of the 60 points required for a personal interview. In assessing the various factors listed in Column I of Schedule I of the Immigration Regulations, 1978, SOR/78-172, as amended ("Regulations"), the visa officer awarded no points for Factor 5 "Arranged Employment or Designated Occupation", on the basis that the applicant "...did not have an offer of permanent employment validated by a Canada Employment Centre...". As a result, she "...did not award him any points for the factor of arranged employment".
[3] In his application for permanent residence, the applicant had included a letter of a bona fide job offer from a Canadian company in his intended occupation as an electronic equipment repairer. The application for permanent residence was forwarded to the visa office with a letter from the applicant's counsel in which he confirmed, among other things, that the applicant had a "bona fide job offer".
[4] In making her decision to reject the applicant's application for permanent residence, the visa officer did not exercise her discretion under subsection 11(3) of the Regulations.
[5] Counsel for applicant submitted, among other things, that the visa officer erred by failing to exercise her discretion under subsection 11(3) of the Act.
[6] Section 9 of the Regulations, under which the visa officer assessed the application for permanent residence, is subject to the provisions of section 11. As a result, in circumstances where an applicant fails to meet the requirements outlined in section 9, subsection 11(3) permits a visa officer to determine whether a visa should nevertheless issue "...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...". [See Shum v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm.L.R. (2d) 233 (F.C.T.D.)]
[7] In Shum v. Canada (Minister of Citizenship and Immigration), supra, McKeown J. dealt with a situation in which, as in the present case, an applicant was refused an interview on the basis that he had less than 60 points at his prescreening, as required by paragraph 11.1(a)(i) of the Regulations. In that case, McKeown J. held that it was not necessary for an interview to be conducted in order for a visa officer to exercise his or her discretion under subsection 11(3) of the Regulations. He therefore allowed the application for judicial review and remitted the matter to another visa officer for redetermination. McKeown J. certified a question of general importance, but his decision was not appealed.
| [8] In Lam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239 (T.D.), Rothstein J. (as he then was) considered the discretionary power accorded to a visa officer under subsection 11(3) of the Regulations. In that case, the application for permanent residence was denied without a personal interview. The applicant had applied for permanent residence in the category of Chef-Cook, but he had no experience in that occupation. In considering the circumstances giving rise to the exercise of the discretionary power under subsection 11(3) of the Regulations, Rothstein J. stated as follows:Subsection 11(3) does not specify what is required to engage the visa officer's exercise of discretion under it. Nothing precludes the visa officer, on his or her own motion, from proceeding under subsection 11(3) if he or she considers that it is warranted to do so. However, if an applicant wishes the visa officer to exercise discretion under subsection 11(3), it would seem that some form of application would be required. While there is no prescribed wording to which an application must adhere, I would think the application would at least have to indicate some good reasons why a units of assessment determination would not reflect the chances of successful establishment in Canada by the applicant. There was no such application here. |
| 6 The applicant says he would not know that he must make an application to request subsection 11(3) consideration until he is told his application fails under the units of assessment determination, and this is a reason for a personal interview. However, this argument is misplaced. The visa officer is not required to provide a piecemeal ongoing determination and advise the applicant at each stage, even if a personal interview is conducted. The units of assessment award is the conventional way in which visa officers determine whether an immigrant visa may be issued. Subsection 11(3) is exceptional. Where an applicant has reason to believe that he or she may be established in Canada, irrespective of the units of assessment determination, he or she should apply for a determination under subsection 11(3) setting forth relevant reasons. Otherwise, while the visa officer may do so on his or her own volition, there is no obligation on the visa officer to exercise a discretion under subsection 11(3). As indicated, there was no application by the applicant for the exercise of discretion by the visa officer under subsection 11(3) in this case. |
[9] Although I am in general agreement with the comments made by Rothstein J., his requirement that "some form of application" is required where an applicant wishes a visa officer to exercise his or her discretion under subsection 11(3) must be read in the context of the facts before him, in which the applicant had no experience whatever in his intended occupation. In particular, there was nothing on the face of the application to suggest that there were "some good reasons why a units of assessment determination would not reflect the chances of successful establishment in Canada by the applicant". The facts considered by Rothstein J. in Lam v. Canada (Minister of Citizenship and Immigration), supra, are therefore distinguishable from those in the present case, in which the applicant was not only qualified in his intended occupation as an electronic equipment repairer, but he also had a bona fide job offer in his field with a Canadian company.
[10] Having considered the submissions of counsel and the jurisprudence, I am of the opinion that the visa officer ought to have considered whether to exercise her discretion to issue a visa to the applicant under subsection 11(3) of the Regulations, given the facts revealed in the application for permanent residence.
[11] The application for judicial review is allowed. The decision of the visa officer dated September 16, 1997 is quashed and the matter is remitted to a different visa officer for redetermination.
[12] Counsel for the respondent requested to have an opportunity to consult with his client prior to making submissions as to whether the case raises a serious question of general importance. Counsel for both parties have agreed to make their submissions on the question of certification in writing, if such becomes necessary. Counsel for the respondent shall serve and file, on or before June 11, 1999, his submissions, if any, on the question of certification. In the event that counsel for the respondent decides to propose a question for certification, counsel for the applicant shall serve and file his submissions on or before June 18, 1999.
[13] Counsel for the applicant made submissions for an award of costs. I have not been persuaded that there are special reasons to justify an award of costs. There will therefore be no order as to costs.
"D. McGillis"
J.F.C.C.
Toronto, Ontario
June 8, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-4457-97 |
| STYLE OF CAUSE: YEVGENI SAVVATEEV, |
Applicant,
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
Respondent.
| DATE OF HEARING: TUESDAY, JUNE 8, 1999 |
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McGILLIS J.
DATED: TUESDAY, JUNE 8, 1999
| APPEARANCES: Mr. Timothy E. Leahy |
For the Applicant
| Mr. Toby J. Hoffmann |
For the Respondent
SOLICITORS OF RECORD: Timothy E. Leahy
| Barrister & Solicitor |
| 5075 Yonge Street, Suite 408 |
| Toronto (North York), Ontario |
| M2N 6C6 |
For the Applicant
| Morris Rosenberg |
| Deputy Attorney General of Canada |
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990608
Docket: IMM-4457-97
Between:
| YEVGENI SAVVATEEV, |
Applicant,
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
Respondent,
REASONS FOR JUDGMENT