BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] These reasons follow the hearing on the 13th of February, 2007 of an application for judicial review of a decision of an Officer at the High Commission of Canada in New Delhi, India wherein the Officer denied the Applicant’s application for permanent residence in Canada. The decision under review is dated the 29th of September, 2005. The Applicant alleges that the decision was only received by his immigration consultant on or about the 20th of October, 2005.
BACKGROUND
[2] The Applicant is a citizen of India. On his behalf, an immigration consultant filed an application for permanent residence in Canada as a member of the economic class. The Applicant requested that he be assessed in the occupation of “purchasing officer”.
[3] The Applicant’s application came forward for assessment in the transition period between the application of the former Immigration Act and the application of the Immigration and Refugee Protection Act. In the result, his application was assessed under both legal regimes. Under the Immigration Act and related Regulations, the Applicant received sixty-six (66) units of assessment when seventy (70) units of assessment were required to qualify for immigration to Canada. Under the Immigration and Refugee Protection Act and Regulations regime, the Applicant received sixty-six (66) units of assessment when sixty-seven (67) units of assessment were required to qualify. In the result, without any indication on the tribunal record that consideration was given to exercising positive discretion or positive substituted evaluation in the Applicant’s favour, his application was rejected.
[4] The Applicant’s application for permanent residence, as filed by an immigration consultant on his behalf, concluded with the following penultimate paragraph:
Although not anticipated, if Mr. Deepak Nayyar scores less than 70 units of assessment, it is respectfully submitted that such a score would not reflect Mr. Deepak Nayyar’s prospects of becoming successfully established in Canada. We therefore request that you exercise positive discretion under s. 11(3) of the Immigration Regulations, 1978 if Mr. Deepak Nayyar scores less than 70 units of assessment.
The reference in the quoted paragraph to the Immigration Regulations, 1978 and to subsection 11(3) of those Regulations is to the legal regime that applied at the time the former Act and related Regulations were in force. The Immigration and Refugee and Protection Act and related Regulations only became effective almost two (2) years after the application was filed.
THE ISSUES
[5] Only two issues were before the Court on this application for judicial review: first, whether the Applicant’s application for judicial review is moot because it was filed out of time and leave to file late was not granted by the Court at the time leave to proceed with the application for judicial review was granted, notwithstanding that the application for leave and for judicial review included a request for extension of time to file; and second, whether the Officer whose decision is under review erred in a reviewable manner in failing to consider, or to record her consideration of, the Applicant’s request for the exercise of positive discretion or positive substituted evaluation.
ANALYSIS
Extension of time to file
[6] In Khalife v. Canada (Minister of Citizenship and Immigration)[1], my colleague Justice Mosley dealt with the issue of extension of time to file in paragraphs 12 to 16 of his reasons. He wrote:
But whether the applicant was aware of the decision and made a timely decision to seek judicial review was now moot, counsel argued, as a judge of this Court had granted leave for the application for judicial review to be heard. While the order granting leave is silent on the question of delay, the applicant submits that the court hearing the application should assume that the judge who granted leave also granted an extension of time for the application to be filed, pursuant to paragraph 72(2)(c) of the Act, as that is what is required by the rules.
Subsection 6(2)…of the Federal Court Immigration and Refugee Protection Rules…(The Rules) provides that a request for an extension of time shall be determined at the same time, and on the same materials, as the application for leave. Moreover, the applicant submits, the respondent's memorandum of fact and law submitted in response to the leave application, had expressly objected to the late filing. The judge granting leave must be presumed to have directed his or her mind to that objection and decided not to accept it, or so it is argued.
While this argument is inventive, I cannot agree that the question is moot in this case. Subsection 6(1)…of the Rules requires that a request for an extension of time shall be made in the application for leave in accordance with Form IR-1 set out in the Schedule…to the Rules. No such request was made by the applicant in his application for leave. In my view, even if leave has been granted, delay in bringing the application remains a live issue to be dealt with by the judge hearing the matter and may be dispositive of the application. There will be circumstances in which a decision as to whether an extension should be granted can only be determined at a hearing. The limited amount of time available to a judge considering whether to grant or deny leave does not permit a thorough examination of the reasons why an extension may be justified. I am not prepared to conclude that silence on the matter in the leave order should be taken as acquiescence to an extension, particularly where the applicant has not made the request in his application.
In any event, the Court retains the discretion throughout the consideration of an application to grant an extension of time where it deems it necessary in order to do justice between the parties:… .
In the particular circumstances of this case, I do not consider that it would do justice to the application to dispose of it without consideration of the merits. Accordingly, I will grant the extension the applicant should have requested and treat the application as having been made within the time limit.
[citations omitted, emphasis added]
[7] In this matter, a request for an extension of time to file was included in the application for leave and judicial review. It was not dealt with in the order granting leave. I adopt Justice Mosley’s conclusion that this Court retains discretion throughout the consideration of an application for judicial review to grant an extension of time where it deems it necessary in order to do justice between the parties. Like Justice Mosley, I am satisfied that, in the particular circumstances of this case, it would not do justice to the application to dispose of it without consideration on the merits. Once again like Justice Mosley, I will grant an extension of time to file to the date of actual filing. Neither counsel before me took exception to this course of action.
Standard of Review
[8] In Singh v. The Minister of Citizenship and Immigration[2], my colleague Justice Blais noted at paragraph 8 of his reasons that it is well established in law that the decision of a Visa Officer whether or not to grant a permanent resident visa is a discretionary decision based essentially on a factual assessment. He goes on, however, at paragraph 10 of his reasons, to note:
However, where concerns are raised over an alleged breach of procedural fairness, the proper standard of review is correctness. If this Court determines a breach of procedural fairness occurred, it must return the decision to the first instance decision-maker for a re-determination… .
[citation omitted]
I am satisfied that the allegation here that the Officer failed to consider the exercise of positive discretion or substituted evaluation when specifically requested to do so in the Applicant’s application for permanent residence is an allegation of a breach of procedural fairness. I will therefore review that allegation on a standard of review of correctness.
Failure to Consider the Exercise of Positive Discretion or Substituted Evaluation
[9] I have earlier quoted the paragraph from the application filed on behalf of the Applicant in which the exercise of positive discretion is requested in the event that the Applicant is not successful in his application on the basis of the units of assessment awarded in his favour. It was not in dispute before the Court that: first, there is nothing on the face of the Officer’s decision or of the CAIPS notes supporting that decision that the Officer considered the exercise of positive discretion or substituted evaluation notwithstanding the fact that the Applicant was within one (1) unit of assessment from a successful score under the Immigration and Refugee Protection Act and related Regulations assessment; second, there is absolutely no evidence before the Court that the Applicant reiterated his request for an exercise of positive discretion or substituted evaluation during his interview with the Officer before the decision under review was arrived at; and third, notwithstanding the fact that a request for reconsideration of the decision under review was made, that request made no reference to the question of exercise of positive discretion or substituted evaluation.
[10] In Yan v. Canada (Minister of Citizenship and Immigration)[3], my colleague Justice Gauthier wrote at paragraphs 16 to 18 of her reasons:
[The Applicant] relies on the decision of this Court in Gangadeen v. Canada (M.C.I.)… where McKeown J. held following the decision of McGillis J. in Savvatee v. M.C.I…. that once a specific request to consider subsection 11(3) [the positive discretion provision of Regulations under the former Immigration Act] is made, the visa officer cannot ignore it, and this even if the reasons given by the applicant to justify the exercise of the discretion are not very clear.
Furthermore, the applicant submits that such a breach of procedural fairness is a reviewable error entitling this Court to quash the decision whether or not it is material to the outcome.
The Court agrees with the respondent that the visa officer is not obliged to justify in her reasons [for] her decision not to exercise her discretion under subsection 11(3) of the Regulations, but that does not mean that she need not consider the specific request made by [the applicant].
[citations omitted]
[11] On the facts of this matter, counsel for the Respondent urged that the Applicant gave no reasons to justify the exercise of positive discretion or substituted evaluation in his favour but rather simply made a bald request for the exercise of such discretion or evaluation. By reference to the foregoing quote, on the facts of this matter, counsel urged, it was not a case where the reasons given were not very clear, rather they were non-existent. This, counsel urged, failed to fulfil the criteria specified by Justice Rothstein, then of this Court, in Lam v. Canada (Minister of Citizenship and Immigration)[4] where he wrote at paragraph 5 of his reasons:
…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 applicant 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.
[emphasis added]
Counsel for the Respondent urged that this matter is on all fours with the situation that was before Justice Rothstein.
[12] I disagree. In the application for a permanent resident visa filed on behalf of the Applicant, the Applicant’s immigration consultant sets out at some length the Applicant’s personal background and an assessment of the units of assessment that the consultant thinks are justified for the Applicant, and provides a rationale for the units of assessment that he urges in respect of the education and training factor, the work experience factor, the knowledge of English and other languages factor and the personal suitability factor. He then goes on in the paragraph immediately preceding the request for exercise of positive discretion to conclude:
It is our respectful opinion that since Mr. Deepak Nayyar meets the requirements outlined in s. 9(1)(a) and s. 9(1)(b)(i) of the Immigration Regulations 1978, he should be issued an immigrant visa… .
[13] By reference to the words of Justice Rothstein quoted above, I am satisfied that the immigration consultant’s presentation constitutes the “some good reasons” why a units of assessment determination made by the Officer that did not reach the threshold justifying the issuance of a permanent resident visa would not reflect the chances of successful establishment in Canada by the Applicant and would therefore justify the exercise of positive discretion or positive substituted evaluation.
CONCLUSION
[14] Based on the foregoing brief analysis, I am satisfied that the decision here under review was made in breach of procedural fairness and must therefore be set aside. This application for judicial review will be allowed and the Applicant’s application for permanent residence in Canada will be referred back to the Respondent for consideration of the exercise of positive discretion under the former Immigration Act and Regulations or the exercise of positive substituted evaluation under the Immigration and Refugee Protection Act and Regulations by a different Officer.
CERTIFICATION OF A QUESTION
[15] At the close of the hearing on this application for judicial review, counsel were advised of the Court’s conclusion. Neither counsel recommended certification of a question. The Court itself
is satisfied that no serious question of general importance arises on this matter that would be determinative on an appeal from the decision herein. No question will be certified.
Ottawa, Ontario.
February 23, 2007
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-57-06
STYLE OF CAUSE: DEEPAK NAYYAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 13, 2007
APPEARANCES:
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Wennie Lee
|
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|
Jamie Todd
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SOLICITORS OF RECORD:
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Lee and Company Toronto |
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John H. Sims, Q.C. Deputy Attorney General of Canada Toronto |
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