Date: 20010411
Docket: IMM-2349-00
Neutral citation: 2001 FCT 316
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Despite the cogent argument of counsel for the applicant, I have concluded that the visa officer did not commit any reviewable error when she refused Mr. Chiu's application for permanent residence in Canada.
[2] In view of the express statement in chapter 5 of the Overseas Processing Manual that the chapter is effective from May 1, 1997, I cannot conclude that the visa officer applied an incorrect version of Appendix B relating to Family Business applicants.
[3] Nor can I conclude that the visa officer committed a reviewable error in failing to have regard to Mr. Chiu's aptitudes. The CAIPS notes set forth the visa officer's conclusion in this regard as follows:
ALTHOUGH IT APPEARS REASONABLE THAT PIS SISTER WOULD WANT TO HIRE A FAMILY MEMBER TO ASSIST IN HER BUSINESS, I AM NOT SATISFIED THAT PI HAS THE WORK EXPERIENCE AND SUFFICIENT ABILITIES TO INDICATE THAT HE COULD SUCCESSFULLY FILL THE POSITION OFFERED IN THE LETTER. PI STATED THAT HE HAS NEVER DONE ANY WORK RELATED TO CASH CONTROL, ACCOUNTING, PAYROLL, BANKING OR INVENTORY CONTROL, ALL RESPONSIBILITIES EXPECTED BY THE NEW POSITION OFFERED FROM THE BAKERY. I AM NOT SATISFIED THAT WITH PIS EDUCATION, ENGLISH ABILITIES AND WORK EXPERIENCE IN SALES AND CONSTRUCTION, HE WOULD BE ABLE TO UNDERTAKE THE DUTIES WHICH ARE STATED IN THE OFFER OF EMPLOYMENT FROM RED HOUSE BAKERY.
[4] While one may argue that an experienced sales representative such as Mr. Chiu would have aptitudes in respect of some or most of the duties required at the Red House Bakery, the onus was on Mr. Chiu to persuade the visa office of this. The visa officer does not appear to have ignored evidence or relied upon irrelevant considerations and I find that it was reasonably open to the visa officer to assess Mr. Chiu's experience and aptitudes as she did.
[5] I find no denial of procedural fairness. The CAIPS notes, which according to the visa officer's affidavit were recorded in the computer on the day of the interview, indicate that the visa officer advised the applicant of her "conclusion and reasons therefore". This is not contradicted by the applicant in his affidavit. Thus, I find that Mr. Chiu was provided with an opportunity to respond to the visa officer's concerns.
[6] Finally, I have not been satisfied that the visa officer committed a reviewable error by failing to consider the exercise of positive discretion under subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172. In Savvateev v. Canada (Minister of Citizenship and Immigration), (1999), 2 Imm. L.R. (3d) 207 (T.D.), McGillis J. distinguished the decision of Rothstein J., as he then was, in Lam v. Canada (Minister of Citizenship and Immigration), (1998), 152 F.T.R. 316 (T.D.) on the ground that in Lam there was nothing in the record to suggest "some good reasons why a units of assessment determination would not reflect the chances of successful establishment in Canada by the Applicant".
[7] In the present case, I am not satisfied that the record compelled the visa officer to consider the exercise of positive discretion. A number of factors pointed to by the applicant, including the fact that his wife died tragically in an automobile accident and that he is the only sibling of seven not in Canada, are not factors directly relevant to a determination of whether the number of units of assessment awarded properly reflects the chances of successful establishment in Canada.
[8] In the result, the application for judicial review will be dismissed.
[9] The applicant posed certification of the following question:
Other than the Minister's reliance on their own statement found at 1.4 of OP-5 which indicates that "This manual chapter is effective May 1, 1997, the day of the implementation of the amended regulations changing to the use of the National Occupational Classification (The NOC)" what authority does the Minister have to apply policy guidelines referred to in Appendix B - Family Business Applicants retroactively?
[10] The respondent opposed certification of the question.
[11] The proposed question does not raise an issue of broad and significant application, nor am I satisfied that policy guidelines were applied retroactively. No serious question is certified.
JUDGMENT
[12] IT IS HEREBY ORDERED AND ADJUDGED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
J.F.C.C.
Toronto, Ontario
April 11, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2349-00
STYLE OF CAUSE: Chiu Man Wah
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, MARCH 19, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
AND JUDGMENT BY: DAWSON J.
DATED: WEDNESDAY, APRIL 11, 2001
APPEARANCES BY: Ms. Mary Lam
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Mary Lam
Barrister & Solicitor
808-255 Duncan Mills Rd.
Don Mills, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010411
Docket: IMM-2349-00
Between:
Chiu Man Wah
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT