IMM-1980-96
BETWEEN:
MOHAMMAD RAFIQUE CHANNA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent.
REASONS FOR ORDER
SIMPSON, J.
Let the attached transcript of my Reasons for Order delivered orally from the Bench in Toronto, Ontario, the 19th day of December, 1996, now edited, be filed to comply with section 51 of the Federal Court Act.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
February 12, 1997
FEDERAL COURT OF CANADA
(TRIAL DIVISION)
IMM-1980-96
B E T W E E N:
MOHAMMAD RAFIQUE CHANNA,
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
---------
Before the Honourable Madame Justice Simpson
Federal Court of Canada, Courtroom No. 7
330 University Avenue, Toronto, Ontario
Thursday, December 19, 1996.
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ORAL REASONS FOR JUDGMENT
APPEARANCES:
Joseph Farkas, Esq. for the Applicant
James Brender, Esq. for the Respondent
This is an application by Mohammad Rafique Channa ("the Applicant") for judicial review of a decision of a visa officer ("the Officer") at the Canadian Consulate General in Buffalo, New York. In her decision, the Officer refused the Applicant's application for permanent residence.
THE FACTS:
The Applicant, a Pakistani national, was born on August 9, 1960, and he is married with three dependent children. He has a Bachelor of Commerce degree from a university in Pakistan. From 1984 to May of 1991, he was employed by Dai Ichi Motors, an automobile dealership in Karachi, as a sales person and later as the sales manager. From June of 1991 to December of 1993, the Applicant worked as the managing director of an import/export firm in Karachi. In 1994 he moved to Texas, and since March of 1994, has been employed as a sales person and then sales manager at a company named Califf Warehouse Inc.
The Applicant applied for permanent residence in Canada on or about April 22, 1996, in the CCDO occupational category of "Salesman-Motor Vehicles". In the pre-interview screening phase, the Officer awarded the Applicant 59 units of assessment. She awarded the Applicant six units for work experience, which is the maximum number of units available for that occupational category.
Included with the Applicant's application was a letter dated January 31, 1996, from Downtown Fine Cars Inc. of Toronto. The Applicant referred to the letter as a job offer ("the Offer"). The Officer considered the Offer but did not award the Applicant any units for arranged employment on the grounds that, as conceded by counsel for the Applicant, the Offer was not validated by a Canada Employment Centre, as required.
The Officer decided that, on the basis of the Applicant's score of 59 units at the pre-interview stage, an interview was not necessary. Even if the Officer interviewed the Applicant and awarded him the maximum 10 units for personal suitability allowed by Schedule 1, Factor 9 of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations"), the Applicant would fall short of the 70 units required for permanent residence status. The Applicant was informed of the refusal of his application by letter dated May 22, 1996.
The Applicant's Memorandum of Argument was not prepared by counsel who appeared before me. Counsel was only retained approximately four weeks ago. The Memorandum of Argument stated that insufficient points were awarded for the Applicant's work experience. However, counsel for the Applicant acknowledged before me that the Officer's calculation was correct.
As well, the Memorandum of Argument suggested that, had an interview been granted, the Applicant would have been able to secure permanent residence. However, with 59 points at the pre-interview stage, even a perfect score for personal suitability would not have assured the Applicant of the required number of units. Counsel conceded that, at best, the Applicant might have become a candidate for the exercise of positive discretion under ss. 11(3)(a) of the Regulations, if he had scored well in personal suitability and/or if some of his self-assessments, such as his language ability, had been upgraded as a result of the interview.
For these reasons, counsel for the Applicant did not advance the arguments made in his Memorandum of Argument.
THE ISSUES:
The Applicant's counsel advanced fresh arguments which were not in the Memorandum of Argument. He took the position that the Officer erred in law when she failed to provide reasons for her failure to grant an interview in what Applicant's counsel characterized as a "border-line" case. This characterization was made because the pre-interview screening resulted in a score of 59 units and, pursuant to ss. 11.1(a)(i) of the Regulations, 60 units are needed for the interview. Applicant's counsel argued that, even though section 11(3) of the Regulations applies only to cases where the issuance of an immigrant visa is being considered, and even though reasons are required only when the discretion provided by section 11(3) is actually exercised, I should conclude by analogy from section 11(3) that a decision not to grant an interview should also require written reasons.
As his second submission, Applicant's counsel asked me to conclude that the decision of an officer not to exercise positive discretion under ss. 11(3)(a) requires reasons.
I will deal with each matter in turn.
| 1. Are reasons required when an interview is denied? |
If an interview is not granted under section 11.1 of the Regulations, it is because it is not "required". An interview is not required if an applicant fails to achieve a specific number of units of assessment (the "Threshold"). However, the word "required" leaves open the possibility that an applicant who falls short of the Threshold could be granted an interview even though it is not required.
Section 11.1 makes no provision for the preparation of reasons to explain why an officer does not conduct an interview for a candidate who fails to meet the Threshold. In spite of the lack of any requirement for reasons in section 11.1, I was asked to "read in" such a requirement by drawing an analogy from section 11(3). This I am not prepared to do, because I have concluded that the sections are not analogous.
In my view, section 11.1 is one of a number of provisions in the Regulations which provide visa officers with administrative and procedural guidelines when assessing immigrant visa applications. In contrast, section 11(3) of the Regulations provides an important and substantive discretion to a visa officer, enabling the officer to consider factors and issues relevant to a visa application which may be outside the strict unit assessment regime provided by the Act and the Regulations. The officer must provide reasons under section 11(3) because a senior immigration officer must review and approve the officer's exercise of discretion.
Not only are sections 11.1 and 11(3) of the Regulations not analogous, but to allow the Applicant's argument would impose an unnecessary and unduly onerous burden on visa officers, requiring them -- for every application that fails to meet the Threshold -- to provide an explanation about why special circumstances did not exist to warrant an interview. Accordingly, in the absence of a specific statutory provision, I am not prepared to say that reasons are required when an interview is denied.
| 2. Are reasons required when positive discretion is not exercised under s. 11(3)(a) of the Immigration Regulations? |
Paragraph 13 of the Officer's affidavit for this judicial review application indicates that she considered the exercise of positive discretion under ss. 11(3)(a). Her affidavit simply states that the exercise of positive discretion was unwarranted. No reasons were given at any time.
The Applicant's counsel states that, given the Applicant's long work experience and the Offer, the Officer should have exercised her positive discretion under ss. 11(3)(a) or at least should have given reasons for her refusal to exercise her discretion. Section 11(3) of the Regulations requires that written reasons be prepared and approved by a senior immigration officer when the discretion provided in the section is invoked, but the section does not require reasons when discretion is not implemented.
In circumstances where the statute only requires reasons when discretion is used, I am not prepared to conclude that reasons are also required when that discretion is not exercised. If that result had been intended, it would have been expressed in the statute.
For all these reasons, the application for judicial review is dismissed.
COSTS:
Counsel for the Applicant acknowledged that, before this hearing, he received more than one telephone call from the Respondent's counsel pointing out that the arguments in the Applicant's Memorandum of Argument were without merit and asking him what he intended to argue. Counsel for the Applicant also acknowledged that he did not respond to the calls and never advised the Respondent's counsel of his intention to argue the two new issues discussed above. These arguments came as a total surprise to the Respondent's counsel and to the Court at the hearing today.
I have explained to counsel for the Applicant that, in this Court, he is not entitled to proceed without notice and that, whether he was asked or not, he should have advised Respondent's counsel that he was abandoning the Applicant's Memorandum of Argument and planning to present new arguments. This he failed to do.
Counsel for the Respondent has asked for party and party costs against the Applicant. There are, in my view, no special reasons under Rule 1618 which justify a costs award against the Applicant. It is the solicitor's conduct which brought this case forward without proper notice. Accordingly, I will order that counsel for the Applicant is to personally pay to the Respondent within 90 days the sum of $100.00 for costs.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: MOHAMMAD RAFIQUE CHANNA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-1980-96
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 19, 1996
REASONS FOR ORDER: SIMPSON, J.
Delivered from the Bench on: December 19, 1996
DATED: February 12, 1997
APPEARANCES:
Mr. Joseph S. Farkas for Applicant
Mr. James Brender for Respondent
SOLICITORS OF RECORD:
Joseph S. Farkas for Applicant
Barrister & Solicitor
North York, Ontario
George Thomson for Respondent
Deputy Attorney General
of Canada