Date: 20021018
Docket: IMM-5814-01
Neutral citation: 2002 FCT 1093
VANCOUVER, BRITISH COLUMBIA, THIS 18th DAY OF OCTOBER, 2002
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
NYOK SING WONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of the visa officer in Buffalo, New York, dated December 10, 2001, wherein he determined that the applicant did not accumulate enough units of assessment to warrant an interview pursuant to subparagraph 11.1(a)(i) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations") and subsection 9(4) of the Immigration Act, R.S.C. (1985), c. I-2 (the "Act"), and therefore, denied the applicant's application for permanent residence received on April 9, 2001.
[2] The applicant is a citizen of Malaysia who applied for permanent residence on April 9, 2001, under the independent category of Technical Sales Specialist. This occupation is coded in the National Occupational Classification (the "NOC"), as NOC 6221.0.
[3] The applicant also included his wife and child in the application. They had been living in Vancouver, BC, since January 2000, where the applicant has been working for Affordable Auto Parts Ltd. ("Affordable") since 1999.
[4] The visa officer rendered his decision by letter dated December 10, 2001. After reviewing the material before him, he concluded that the applicant did not fulfill the necessary requirements to be asked to attend an interview. The applicant only accumulated 47 of the 60 units necessary under subparagraph 11.1(a)(i) of the Regulations.
[5] The visa officer found that the applicant could not be awarded any units of assessment for the arranged employment or designated occupation factor as he did not possess a permanent job validation issued by Human Resources and Development Canada, nor was his occupation designated.
[6] The main issue raised in the case at bar is to determine whether the visa officer should have exercised his discretion under subsection 11(3) of the Regulations. It is clear that the applicant is far short of obtaining the required 60 units (subparagraph 11.1(a)(i) of the Regulations) to warrant an interview, or of the 70 units to be granted a visa for permanent residence in Canada. In such a case, subsection 11(3) of the Regulations provides that "a visa officer may 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" grant or deny the issuance of an immigrant visa to an immigrant who does or does not meet the requirements of the Act and Regulations.
[7] Rothstein J. in Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 stated as follows at para. 5:
Notwithstanding that he obtained zero units in the occupational factor and was therefore not entitled to the issuance of an immigrant visa under s. 11(2) of the Immigration Regulations, 1978 SOR/78-172 as amended, the applicant says that the visa officer erred in not exercising her discretion under s. 11(3) of the Regulations [See Note 1 below]. Section 11(3) does not specify what is required to engage the visa officer's exercise of discretion under it. Nothing precludes the visa officer, on his or her own motion, from proceeding under s. 11(3) if he or she considers that it is warranted to do so. However, if an applicant wishes the visa officer to exercise discretion under s. 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]
[8] Furthermore, as pointed out in L. Waldman, Immigration Law and Practice, loose-leaf (Butterworths, 1994) at para. 13.223:
The applicant can request that the visa officer convoke the applicant for an interview, even if the applicant receives fewer than 60 points. This is based upon the fact that s. 11(3) of the Immigration Regulations, 1978 provides that the visa officer has a discretion and can opt to issue an immigrant visa to a person who has obtained fewer than the required points. The applicant should make this request to the visa officer in writing. However, the visa officer is under no obligation to grant an interview in such circumstances, and the visa officer's decision is entirely discretionary.
[9] In his examination for discovery of his affidavit, the visa officer stated that he did not believe he was asked to exercise his discretion under subsection 11(3) of the Regulations (Examination of Hal Watson, page 12, question 40). However, the applicant's counsel strenuously argued that there was indeed an implied request in the letter dated April 1, 2001, which the applicant's Consultant had addressed to the Consulate.
[10] The letter reads as follows:
We are the consultants for the said Mr. Wong has a highly auto working experience over 10 years. He has been working with affordable Auto Parts Ltd in Burnaby, BC Canada since 1999. As a Parts Purchaser and Examiner, Mr. Wong has been responsible for parts purchases from Canada, and he has been assigned to fly between Malaysia and Canada since 1996 he was working in A.G. parts Trading Ltd in Malaysia which has been a business with Affordable many years. His companies considers he is a highly and carefully examinations and supervisions. Please see the attached reference letter for further details.
In addition to his employment successes Mr. Wong made the sales volume of Affordable as at April 1998 (when he was sent by his A.G. Malaysia company) was $1,470,188 that was a decrease of about $300,000 from the previous year and was increasing each year.
He has been working for more than one year in Canada. He has Canadian working experience more than two years that can be proved by the Canada Employment Authorization. He has been living in Canada with his wife and son for over years. He is getting used to live in Canadian. Therefore, he can find a job in Canada easily, also Affordable would like to hire him if he gets his landing document in Canada.
We have taken the liberty of assessing the applicant under the heading of Information Technical Sales Specialist (NOC 6411) in the General Occupations List.
We assess of the applicant's points as following:
|
Age |
10 |
|
Education |
5 |
|
Training Factory- ETF (6221.0) |
15 |
|
Occupation |
10 |
|
Arranged employment |
10 |
|
Work experience |
6 |
|
Language ability (English) |
3 |
|
Demographic |
8 |
|
TOTAL |
67 |
We have enclosed the completed application and all necessary documents for your review and look forward to your early reply.
[reproduced with errors and omissions]
[11] Having carefully read this letter, I am unable to find in it any express or implied request that the visa officer should exercise his discretion under subsection 11(3) of the Regulations. On the contrary, the Consultant provides his own assessment of how many points the applicant should receive, which should, in their opinion, add up to 67 points. This shows that the latter felt confident of the applicant's chances, pursuant to subparagraph 11.1(a)(i) of the Regulations, of obtaining the necessary units of assessment to warrant an interview (60 points). Unfortunately, the Consultant was wrong, but absent any evidence of bad faith on the part of the visa officer, the Consultant's assessment cannot constitute a proper reason to overturn the visa officer's decision.
[12] The applicant's contentions that the visa officer was "wilfully blind", or that his decision is otherwise patently unreasonable, are also totally unsupported by the evidence and the facts of the present case. Again, the following comments in Lam, supra, at para. 4, are pertinent:
A visa officer may inquire further if he or she considers a further enquiry is warranted. Obviously, a visa officer cannot be wilfully blind in assessing an application and must act in good faith. However, there is no general obligation on a visa officer to make further inquiries when an application is ambiguous. The onus is on an applicant to file a clear application together with such supporting documentation as he or she considers advisable. The onus does not shift to the visa officer and there is no entitlement to a personal interview if the application is ambiguous or supporting material is not included.
[emphasis added]
[13] With great respect, I cannot agree with the applicant's counsel's proposition that, because the applicant has brought economic benefit to Canada, this constitutes an unusual fact which would have warranted the visa officer to exercise his discretion under subsection 11(3) of the Regulations.
[14] I share the view expressed by Evans J. in Chen v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 78, at paras. 23-24:
... Without trespassing on the discretion conferred upon visa officers by s. 11(3), I would have thought that the discretion in question is residual in nature, and should be decisive only in cases that present unusual facts, or where the applicant has come close to obtaining 70 units of assessment.
The primary tool for determining the issue of visas to independent immigrants is an evaluation of the factors listed in Schedule I, which s. 8(1) of the Regulations requires visa officers to use in determining whether an applicant is likely to become successfully established in Canada. One of the objectives of the statutory scheme established for assessing visa applications is to encourage consistency in decision-making and to reduce the exercise of unstructured and potentially arbitrary discretion by visa officers that would likely result if officers were permitted, without more specific statutory regulation, to base decisions on their own assessment of an applicant's chances of successful establishment.
[15] In the case at bar, the visa officer found that the applicant could not be awarded any units of assessment for the arranged employment or designated occupation factor as he did not possess a permanent job validation issued by Human Resources and Development Canada, nor was his occupation designated. In the visa officer's opinion, the applicant's temporary validation does not meet the conditions set out in Schedule 1, factor 5. Having examined the record, I find that it was reasonably open to the visa officer to come to this conclusion based on the evidence before him. Therefore, the applicant could not receive the maximum units available under this category and the visa officer's assessment was not unreasonable.
[16] Before I conclude, I am also mindful of the following comments made by Reed J. in Liu v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 251 at para. 23:
This applicant might make a good immigrant but, as noted, he falls far short of the points required. The screening out of people who might in fact make good immigrants is the price a society pays for adopting legal rules that are designed to constrain the exercise of discretion by government officials, and that try to establish a framework to treat all individuals as equally as possible. This drawing of lines that may on occasion lead to inappropriate results is a feature of not only immigration legislation, but of all legal prescriptions.
[17] In conclusion, I find that the visa officer has not fettered his discretion, acted in bad faith, or otherwise committed an error of law which would warrant the Court to intervene in the present case.
ORDER
The application for judicial review is dismissed.
(Sgd.) "Luc Martineau"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5814-01
STYLE OF CAUSE: Nyok Sing Wong v. Minister of Citizenship
and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 16, 2002
REASONS FOR ORDER
AND ORDER: Martineau, J.
DATED: October 18, 2002
APPEARANCES:
Mr. Kenneth Specht FOR APPLICANT
Mr. Keith Reimer FOR RESPONDENT
SOLICITORS OF RECORD:
Barrister & Solicitor FOR APPLICANT
Vancouver, British Columbia
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada