Date: 19981130
Docket: IMM-811-98
BETWEEN:
NASSER SADEGHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] The applicant is asking for an order in the nature of certiorari to quash a decision of a visa officer dated January 5, 1998.
[2] The application to quash the decision is based on the following grounds:
| 1. The visa officer erred in law in ignoring or misinterpreting evidence; |
| 2. The visa officer erred in law in taking into account irrelevant considerations; |
| 3. The visa officer erred in law in reaching an unreasonable conclusion; |
| 4. The visa officer failed to comply with the duty of fairness. |
[3] The applicant"s counsel is questioning particularly the fact that in his decision of January 5, 1998, the visa officer wrote:
| ...your limited practical experience, your lack of professional contacts in Canada, your lack of preparedness to go the Canada which did not substantiate your motivation for immigrating to that country, it is my opinion, concurred in by a senior immigration officer in accordance with Section 11.(3)(b) of the Immigration Regulations, that the points awarded do not accurately reflect your ability to successfully establish in Canada. You have no arranged employment either to overcome these difficulties. Your application has therefore been refused. |
[4] The applicant"s counsel raised the point that the visa officer came to these conclusions without having asking any question on the lack of professional contacts in Canada or on the lack of preparedness to come to Canada.
[5] The applicant"s counsel also suggested that the comment made by the visa officer, again on page 2 of the decision of January 5, 1998, mentioning "your limited practical experience" constitutes a "double counting" and all that together brings to the conclusion that the visa officer has not complied with the duty of fairness towards the application for landing of the applicant.
[6] The applicant"s counsel mentioned that this duty of fairness includes an obligation to advise the person of the concerns of the visa officer, if such concerns ought to be taken into account in the decision reached.
[7] The decision that the Court was referred to in Muliadi v. M.E.I.1, is not applicable here, because it was a decision made on the definition on an "entrepreneur" where the visa officer had made a decision on a letter received from the Government of Ontario, without any knowledge by the applicant of the real reason for the decision.
[8] The exercise of discretion by the visa officer was not involved in Muliadi, mentioned at page 254:
Further, counsel did not attempt to support the decision on the basis that it was an exercise of discretion by the visa officer. Indeed, such a position was expressly disclaimed in argument before us. The position taken was that the appellant did not qualify as an "entrepreneur" within the meaning of the definition and that was what the letter of refusal meant.
[9] In the case before the Court, the appellant had been assessed by the visa officer and in a decision of October 30, 1997, the application was denied because the applicant failed to meet the minimum of points required.
[10] After the intervention of his counsel and his own affidavit proving that the applicant"s wife"s sister and her husband were permanent residents in Canada and that the applicant should be credited five supplementary points, the visa officer finally reviewed that file and reassessed the applicant and gave him five more points.
[11] With those five additional points, as an independent applicant, the applicant met the criteria of section 9 of the Immigration Regulations.
[12] But under section 11(3)(b) of the Immigration Regulations, the visa officer has the discretion to refuse to issue an immigrant visa:
11(3) A visa officer may
(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 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.
[13] The applicant"s counsel submitted many cases and as the defendant"s counsel suggested, many of them applied to decisions made on section 9 and not on section 11(3), but if you look at the Chen2 case, it seems obvious that the decision made in that case was made particularly on the fact that when the applicant was asked for an interview he was not told at the time that the visa officer wanted to question on the bribe in which the applicant was involved in sending $500 with a letter, a few weeks before:
The refusal involved a denial of fairness in that S did not tell C at the outset of the December 1988 interview that the real purpose of the interview was to delve into the matter of the alleged bribe. The results of the meeting were potentially very important for C, and it was incumbent upon S to state his concerns and to give C every opportunity to explain his conduct.
[14] We should also refer to page 182 of the Chen decision:
The discretionary power in subs. 11(3) is an extraordinary one which, it has been held, must be exercised in strict conformity with the requirement of submitting written reasons to a senior immigration officer and getting his approval.2 I have no doubt this means that the reasons for such exercise of discretion must be the real reasons, and must be lawful reasons, which these were not.
| 2 Zeng v. Canada (Minister of Employment & Immigration) (1991), 12 Imm. L.R. (2d) 167, 121 N.R. 252 (Fed. C.A.); Uy v. Canada (Minister of Employment & Immigration) (1991), 12 Imm. L.R. (2d) 172, 121 N.R. 248, 40 F.T.R. 80 (note) (C.A.). |
[15] I also reviewed the case of Zeng3, this case could not really apply to the case before the Court because the Federal Court of Appeal had considered that the visa officer had made errors in law:
It seems, from the visa officer"s affidavit, that he was under the impression that he could, himself, have refused the visa even if he had awarded the appellant 70 or more units of assessment. That misapprehension of the discretion has been dealt with in the reasons for judgment of another appeal heard serially with this.1 The learned trial Judge erred in concluding that the visa officer had properly exercised a discretion under s. 11(3). He had not even purported to do so and, if he had, he could not have done so alone; the concurrence of a senior immigration officer would have been required.
| 2 Uy v. Canada (Minister of Employment & Immigration) (1991), 12 Imm. L.R. (2d) 172 (Fed. C.A.). |
[16] This is obviously not the case here.
[17] The applicant"s counsel submitted many decisions: Rudnitsky4, Mou5, Hua6, Chatrova7 and B"Ghiel8, all those decisions refer to "double counting" and should not really apply here because we all agree that the applicant has met the criteria of points credited but the decision was made under section 11(3).
[18] The point raised by the applicant"s counsel was whether or not, referring to "your limited practical experience" in the decision of January 5, 1998, by the visa officer, constituted a "double counting" because the experience was already assessed under section 9.
[19] The respondent"s counsel suggests that there is no error whatsoever in the decision made by the visa officer because he has mentioned clearly that the applicant has met the "numbers" criteria but that his application was refused because "he would not, at this time, be able to successfully establish in Canada".
[20] The respondent"s counsel has referred to the decision in Savin9 where Justice Cullen said:
The central issue in this case is whether the visa officer improperly exercised negative discretion, pursuant to s. 11(3) of the Immigration Regulations, 1978, SOR/78-172, as amended ("the Regulations").
The applicant submits that the visa officer erred in two ways. First, the visa officer exercised discretion arbitrarily and, in so doing, erred in law. Second, the visa officer failed to alert the applicant of his concerns regarding her application and breached the requirements of procedural fairness. Each of these submissions is addressed in turn.
Justice Cullen quoted Justice Strayer in his decision in Chen10:
More specifically, the basic question is -- on what grounds can the visa officer exercise his discretion in forming the opinion that there are "good reasons" why the number of units awarded do not reflect adequately the chances of an immigrant becoming "successfully established" in Canada? It is inconceivable that this was intended to give a visa officer an unlimited mandate to decide whether a particular immigrant is generally suitable or not as a future member of Canadian society, given the existence of other, extensive, provisions in the Act for identifying those who are suitable or unsuitable.
Justice Cullen continued:
Given that the selection criteria had an economic emphasis, Strayer J. concluded, at p. 361, that a visa officer"s discretion should be exercised in the same "economic spirit":
Given this emphasis on economic factors as identified by both Parliament and the Governor-in-Council for determining whether an immigrant can become "successfully established" in Canada, it is difficult to read the discretionary power granted to a visa officer by s. 11(3) of the Regulations as allowing him to ignore the number of units of assessment and to determine, for essentially noneconomic reasons, that an immigrant does not have a chance of becoming successfully established in Canada. While the subsection only requires that the visa officer have good reasons", those reasons must be such as lead him to believe that the immigrant cannot become successfully established in the economic sense.
I agree with Strayer, J., with respect to the importance of economic reasons in determining the discretion under s. 11(3). Provided that the visa officer had good reasons for believing that the applicant would have difficulty in making a living in Canada, the visa officer properly exercised his discretion.
[...]
...the case at bar is distinguishable from the situation which faced the court in Chen. In that case, the decision of the visa officer dealt only with personal suitability; in the case at bar, the visa officer was making an assessment which ought to mesh personal suitability and low occupational demand. In both of these categories, the applicant received a below-average score, albeit not a zero. However, the visa officer must be given some discretion to determine that, for a combination of reasons, an applicant would not become economically self-sufficient in Canada. The visa officer"s decision, in my view, is not in error.
(Emphasis is mine.)
[21] The respondent"s counsel referred the Court to the Mao11 case, where Justice Pinard said:
Provided that the reasons invoked by the visa officer for exercising negative discretion are relevant to the applicant"s chance of becoming successfully established economically in Canada, and not to some other measure of success, he or she may properly base his or her decision on any number of factors, including those found in Schedule I of the Regulations (see Covrig v. Canada (M.C.I.) v. Canada (M.C.I.), [1995] 104 F.T.R. 41 (F.C.T.D.); and Savin v. Canada (M.C.I.) [1995] 102 F.T.R. 67 (F.C.T.D.) at p. 71).
[22] The visa officer has particularly considered that commencing a career in a new country at sixty-two years of age is not something which is amenable to change. I also review the CAIPS notes by the visa officer and I understand from those notes that the visa officer has discussed with the applicant of all elements he should rely on to make a fair decision.
[23] From the evidence I had before me and from the documents I have read, I must reject the argument of the appellant"s counsel that the visa officer had not comply with a duty of fairness towards the application for landing of the applicant; in my view, the visa officer has complied with the duty of fairness.
[24] The applicant has not convince the Court that the visa officer erred in law in refusing the applicant"s application for permanent residence in Canada.
[25] For these reasons, the application for judicial review is dismissed.
[26] The following question, suggested to the Court by the applicant"s counsel, is certified with modifications:
| Is it an error of law for a visa officer to award full points for experience under Factor 3 of Schedule 1 to the Immigration Regulations and to consider this same experience as "limited practical experience" under section 11(3)(b) of the Immigration Regulations ? |
Pierre Blais
Judge
OTTAWA, ONTARIO
November 30, 1998
__________________1 Muliadi v. M.E.I. (1986), 18 Admin. L.R. 243 (F.C.A.).
2 Chen v. M.E.I. (1995) 1 S.C.R. 725; (1991), 13 Imm. L.R. (2d) 174 (F.C.T.D.).
3 Zeng v. M.E.I. (1991), 12 Imm. L.R. (2d) 167 (F.C.A.).
4 Rudnitsky v. M.C.I., [1997] F.C.J. No. 633 (T.D.).
5 Mou v. M.C.I., [1997] F.C.J. No. 108 (T.D.).
6 Hua v. M.C.I., [1998] A.C.F. No 1291 (T.D.).
7 Chatrova v. M.C.I. [1996] F.C.J. No. 443 (T.D.).
8 B "Ghiel v. M.C.I., [1998] F.C.J. No. 1023 (T.D.).
9 Savin v. Canada (Minister of Citizenship and Immigration) (1995), 102 F.T.R. 67.
10 Chen v. Minister of Employment and Immigration, [1991] 3 F.C. 350; 45 F.T.R. 96 (T.D.).
11 Mao v. Canada (Minister of citizenship and Immigration) (January 16, 1997) IMM-844-96, F.C.T.D.