Date: 19980917
Docket: IMM-4246-97
BETWEEN:
VALENTINA MILEVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.:
[1] The applicant seeks to set aside a decision of Visa Officer Halina Roznawski of the Canadian Consulate General in Detroit, Michigan. By her decision dated September 5, 1997, the Visa Officer denied the applicant"s application for permanent residence in Canada.
[2] The applicant is a citizen of Bulgaria. She arrived in Canada on September 5, 1993 with her husband and one of her daughters. Upon arrival, the applicant and her family claimed refugee status in Canada. The applicant"s second daughter arrived in Canada in July 1994 and also claimed refugee status. On June 3, 1996, the Convention Refugee Division of the Immigration and Refugee Board dismissed their claims to refugee status.
[3] On July 24, 1996, the applicant and her family left Canada and entered the United States where they established a residence in the City of Chicago. In the United States, the applicant and her family did not have status.
[4] At the end of 1996, the applicant submitted an application for permanent residence in Canada. Her application, in the assisted relative class, was referred to the Visa Officer in February 1997.
[5] The applicant and her husband were interviewed by the Visa Officer on June 5, 1997. On June 19, 1997, the applicant provided to the Visa Officer further documents in support of her application.
[6] On September 5, 1997, the Visa Officer sent a letter to the applicant informing her that her application had been refused. In her letter, the Visa Officer sets out the reasons for her denial of the applicant"s application:
| This refers to your application for permanent residence in Canada. I have now completed the assessment of your application and I regret to inform you that you do not meet the requirements for immigration to Canada. |
| Pursuant to section 8(1) and 10(1) of the Immigration Regulations, 1978, immigrants in the Assisted Relative category shall be 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, on the basis of an interview, personal suitability. You were assessed based on the requirements for the occupation of electrical repairman and you were awarded the following units of assessment using the NOC system which came into effect on May 01, 1997. |
| Age 10 |
| Occupational Demand 05 |
| Specific Vocational Preparation 15 |
| Experience 06 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 13 |
| English 08 |
| French 00 |
| Personal Suitability 02 |
| TOTAL 67 |
| In order to be selected as an Assisted Relative, you must earn 65 units of assessment. This figure has been reduced from the usual level of 70 to reflect a 5 unit bonus for Assisted Relatives. |
| Although you meet this total, I believe that the assessment does not accurately reflect your chances of becoming successfully established in Canada. You have not proven to me that you possess any motivation to financially provide for yourself and your family. While in Canada for three years awaiting the outcome of your refugee claim, you and your spouse were both granted open employment authorizations and instead of becoming self-supporting, you chose to be dependent on the Canadian social system. Since your arrival in the USA, you are being wholly supported by funds provided by your mother and an elderly uncle in Canada. I do not believe that you are adaptable. You have resided outside of your home country for four years and have not provided any evidence that you possess resourcefulness and initiative. While you were in Canada, you managed to obtain a second passport issued in Bulgaria which you used for entry to the USA. However, I noted that your entry into the USA is undocumented. When I questioned you, you replied that a driver"s license is sufficient for entry purposes to the USA and made light of the situation. This undermines your credibility. For these reasons, I could not assign more than two points for personal suitability. You have not satisfied me that you would be able to become successfully established in Canada. |
| In view of the above factors, and notwithstanding that you have been awarded the number of assessment units required by Paragraph 9(1)(b) of the regulations, I have, pursuant to Paragraph 11(3)(b) recommended refusal of your application. Paragraph 11(3)(b) states: |
| A visa office [sic] may 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 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. |
| The recommendation to refuse has been approved by a senior immigration officer. |
Since your application has been refused, you are entitled to a refund to the Right of Landing Fee that you paid when you submitted your application. Please be informed that we are currently processing a refund which should be received within two months.
[7] In attacking the Visa Officer"s decision, the applicant submits that she made two "significant misstatements" of fact in reaching her conclusion:
| 1. That the applicant and her spouse were granted "open employment authorizations" for the three years they waited for a decision on their refugee claims; and |
| 2. That the applicant and her husband chose to be dependant on the Canadian welfare system. |
[8] These findings, according to the applicant, are perverse. The applicant submits that there is no evidence whatsoever to support these findings.
[9] As appears clearly from the Visa Officer"s letter of September 5, 1997, she was of the view that the applicant"s chances of becoming successfully established in Canada were not good. Consequently, notwithstanding that the applicant had earned 67 units of assessment, that is 2 units more than the minimum of 65, the Visa Officer, pursuant to Paragraph 11(3)(b ) of the Immigration Regulations, SOR/78-172, denied the application. Paragraph 11(3)(b) of the Regulations provides as follows:
| (3) A visa officer may ... |
(3) L'agent des visas peut ... |
| (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, |
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 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. |
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. |
[10] The standard review of such a decision was set out by the Federal Court of Appeal in Chiu Chee To, (May 22, 1996), Toronto A-172-93 (F.C.A.), where Mr. Justice Stone, for the Court, stated:
| Here, the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court: |
| It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, were required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
In our view, these requirements, to the extent that they apply, have been met in this case. Accordingly, no basis has been shown for interfering with the decision of the Trial Division.
[11] The thrust of the applicants challenge is that the Visa Officer erred in finding that she and her husband had chosen to be dependent on the Canadian social system. Specifically, the applicant criticizes the Visa Officer for having found that, although she and her husband had open employment authorizations, they nonetheless did not work for three years.
[12] The applicant submits that the Visa Officer made an error because the applicant and her husband"s work authorizations were only valid for 9 months. After the expiry of 9 months, according to the applicant, she and her husband could only obtain renewals "at the discretion of an immigration officer". Consequently, the applicant submits that she could not have worked for a period exceeding 9 months. This argument must fail. A reading of paragraphs 6 and 7 of the Visa Officer"s affidavit is sufficient, in my view, to dispose of this issue. In paragraphs 6 and 7 of her affidavit, the Visa Officer states:
| 6. I then turned to the areas of concern identified in paragraph 4 above. I asked the Applicant how she supported herself and her family after they arrived in Canada in September1993. The Applicant indicated that as refugee claimants, they were entitled to collect social assistance. I advised the Applicant that the information in our computer records indicated that on August 16, 1994, both she and her spouse received employment authorizations which allowed them to work in Canada while their refugee claims were being processed. I asked the Applicant and her spouse if they had ever worked after obtaining their employment authorizations. The Applicant and her spouse replied, "no". When I asked why, the Applicant said that she and her spouse searched for jobs but that employers were unwilling to hire them with a social insurance number beginning with a "9". She stated that employers were afraid that they would not stay in their employ for very long. The Applicant, however, also stated that she had to stay home to care for her daughters. Neither the Applicant nor her spouse made any mention during the interview of ever having attempted unsuccessfully to renew their employment authorizations; rather, the Applicant essentially indicated that she and her spouse gave up trying to find work after their initial attempts were unsuccessful. In addition, as stated above, the Applicant indicated that she had to stay home to look after her daughters. |
7. I told the Applicant that I found it strange that for almost three years she relied on social assistance in Canada, but was able to find employment for one month at Atlas Plastic immediately after her refugee claim was denied and shortly before she and her family left Canada for the United States. I gave the Applicant an opportunity to respond. She did not respond directly to my concern but merely repeated that employers were unwilling to hire her.
[13] It becomes apparent, upon reading paragraphs 6 and 7 of the Visa Officer"s affidavit, that she was aware that the employment authorizations were issued for limited periods. That is why she states, at paragraph 6, that neither the applicant nor her husband indicated to her during the interview that they had attempted to renew their employment authorizations. The impression left upon the Visa Officer, following the interview of June 5, 1997, was that the applicant and her husband had not made serious attempts to find work. In reaching that conclusion, the Visa Officer noted that the applicant was able to find employment immediately after her refugee claim was denied by the Refugee Board. In other words, as soon as welfare payments stopped, the applicant was able to find a job. This, in my view, was a fact which the Visa Officer was entitled to consider in making her decision.
[14] At page 58 of her memorandum, the applicant, in referring to paragraph 19.2(2) of the Immigration Regulations, submits that she "did not have the right to have the employment authorization extended beyond a nine month period". I have difficulty understanding this submission since the paragraph clearly provides that the employment authorizations may be extended by an immigration officer, "where the Minister or the Refugee Division is responsible for any significant delay in the hearing or determination of the claim". I understand this to mean that, upon application by a refugee claimant, an immigration officer may extend the employment authorizations if the delay in processing the refugee claims is not imputable to the refugee claimant.
[15] The history of the applicant"s refugee claim is set out in the affidavit of Howard C. Gilbert, the solicitor who handled the applicant"s refugee claim. At paragraph 12 of his affidavit, Mr. Gilbert states that the applicant "pursued her claim to convention refugee status in an expeditious matter". Notwithstanding that the applicant"s personal information form was filed with the Refugee Board in December 1993, a decision regarding her claim was rendered only on June 3, 1996, i.e. 2 " years after the filing of her personal information form and 3 years after she initially claimed refugee status in Canada.
[16] At paragraph 14 of his affidavit, Mr. Gilbert states that "I do not believe that the applicant had the legal right to have her work permit renewed beyond the initial nine month period". I have difficulty with this statement of opinion since the regulation clearly provides that a work permit may be extended by an immigration officer. It goes without saying that the work permit will only be extended if a refugee claimant makes an application to that effect. There is no evidence before me, nor was there any evidence before the Visa Officer, that the applicant had ever made an application to extend her work permit. Consequently, the Visa Officer is quite right when she states at paragraph 6 of her affidavit that "neither the applicant nor her spouse made any mention during the interview of ever having attempted unsuccessfully to renew their employment authorizations; ...".
[17] The Visa Officer also considered the fact that the applicant and her husband had not worked in the United States since their entry in July 1996. It should be noted that during the interview, the applicant and her husband informed the Visa Officer that they were not employed in the United States. They further informed the Visa Officer that they were receiving financial support from the applicant"s mother and uncle. In her affidavit in support of this application for judicial review, the applicant states that she did not inform the Visa Officer that she and her husband were in fact working in the United States. Perhaps, if that information had been disclosed to the Visa Officer, she might have taken a different view of the matter. However, the Visa Officer was not so informed and was entitled to consider, in assessing the applicant"s suitability, the fact that she was not working.
[18] In her letter of refusal, the Visa Officer referred to the applicant"s story concerning her entry into the United States. The Visa Officer was of the view that the story related by the applicant could not possibly be true and, as a result, indicated in her letter that she had problems with the applicant"s credibility. That, in itself, would not have been sufficient to justify a refusal of the application but the issue of credibility, in conjunction with the Visa Officer"s findings regarding the applicant"s failure to work in Canada and in the United States, were sufficient to justify her overall conclusion.
[19] One last point. The applicant submits that the Visa Officer breached the provisions of paragraph 11(3)(b) of the Immigration Regulations in that she did not outline her reasons in a fair and accurate manner for consideration of the Senior Immigration Officer. This argument is, in my view, without substance.
[20] For these reasons, this application for judicial review shall be dismissed.
Ottawa, Ontario "MARC NADON"
September 17, 1998 JUDGE