Date: 19980831
Docket: IMM-4104-97
BETWEEN:
YIN SHAN, HO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Wednesday, August 26, 1998 as edited)
ROTHSTEIN, J.:
[1] The Visa Officer was asked to exercise her discretion and issue an immigrant visa to the applicant under subsection 11(3) of the Immigration Regulations, 1978 SOR/78-122 as amended1. One consideration she took into account in exercising her discretion against the applicant was that the applicant's intended occupation of graphic artist was not in demand in Canada.
[2] Both parties agree that this was an error and that there was a demand, according to the "Detailed General Occupations List" dated August 23rd, 1993 for such occupation (called Commercial Artist on the List).
[3] The respondent's argument appears to be that while demand for the applicant's occupation was a relevant consideration, a correct approach by the Visa Officer would not have made any difference to the outcome. In particular, respondent's counsel points out that in the assessment of units, a correct determination on this point by the Visa Officer would have given the applicant only three (3) more units, still insufficient for the issuance of an immigrant visa under subsection 11(2).
[4] However, this case does not concern subsection 11(2). The applicant apparently conceded she would not qualify under subsection 11(2) and asked for consideration under subsection 11(3).
[5] This is not a case where the Visa Officer's error is trivial. The exercise of discretion under subsection 11(3) is directed to the economic sustainability of an applicant. Whether there is demand for the job that the applicant is qualified for and is prepared to follow in Canada is certainly an important factor to be considered. With respect to the exercise of discretion under subsection 11(3), it is not for the Court to substitute its discretion based on correct facts for that of the Visa Officer who's discretionary decision was based on incorrect facts.
[6] The judicial review is allowed and the matter is remitted to a different Visa Officer for redetermination.
"Marshall Rothstein"
Judge
Toronto, Ontario
August 31, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4104-97
| STYLE OF CAUSE: YIN SHAN, HO |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, AUGUST 26, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: MONDAY, AUGUST 31, 1998
APPEARANCES:
Mr. David Bruner
For the Applicant
Ms. Bridget O'Leary
For the Respondent
SOLICITORS OF RECORD: Hoppe, Bruner
| Barristers & Solicitors |
| 1st Canadian Place, Exchange Tower |
| Suite 910 |
| P.O. Box 177 |
| Stn 1st Canadian Place |
| Toronto, Ontario |
| M5X 1C7 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980831
Docket: IMM-4104-97
Between:
| YING SHAN, HO |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 The Regulations referred to in these reasons are:
11(2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless (a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of column I of Schedule I;
(b) the immigrant has arranged employment in Canada; or
(c) the immigrant is prepared to engage in employment in a designated occupation.
11(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment require 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 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 changes 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.