Date: 20010207
Docket: IMM-2604-00
2001 FCT 40
Between:
MARY BERNADETTE RANDOLPH
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
NADON J.
[1] The plaintiff is challenging the decision by Kwee Luan Tan, a visa officer, on April 18, 2000 rejecting her application for permanent residence in the independent category (assisted relatives).
[2] The plaintiff obtained 56 points, 9 points less than the 65 points required under s. 10(1)(d) of the Immigration Regulations, 1978 ("the Regulations"). The visa officer's decision was communicated to the plaintiff by a letter dated April 18, 2000, which read as follows:
This refers to your application for permanent residence in Canada and your interview held on 18 April 2000 at the Canadian High Commission in Singapore. I have now completed the assessment of your application and have determined that you do not meet the requirements for immigration to Canada.
Unfortunately, you failed to achieve sufficient units of assessment to qualify for immigration to Canada. For this reason, you are a member of the inadmissible class as described in 19(2)(d) of the Immigration Act, 1976. You are a person "who cannot or do(es) not fulfil or comply with any of the conditions or requirements of the Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations."
Pursuant to section 10(1) of the Immigration Regulations, 1978 as amended, prospective immigrants in the Assisted Relative category are assessed on the basis of each of the factors listed in column I of Schedule I of the Regulations. These factors are: education, education/training factor (ETF), experience, occupational demand, arranged employment or designated occupation, demographic factor, age, knowledge of the English and French languages and, on the basis of an interview, personal suitability. Sections 10 (1) and 11 (1) and (2) of the Regulations require that an assisted relative applicant obtain at least one unit of assessment in each of the factors of experience and occupational demand, and a minimum of 65 units of assessment, to qualify for admission to Canada.
Your occupational skills and qualifications were assessed with reference to the National Occupational Classification (NOC). The NOC is a reference text which outlines and describes in the Canadian context the duties, responsibilities and minimum qualifications necessary for various occupations undertaken in Canada. The NOC has been in effect since 01 May 1997 and all applications received at this office after this date are assessed under NOC criteria.
You were assessed based on the requirements for the following occupation:
Secretary NOC: 1241.0
You were awarded the following units of assessment:
|
NOC |
|
|
AGE (45) |
10 |
|
OCCUPATIONAL DEMAND |
05 |
|
EDUCATION/TRAINING FACTOR |
07 |
|
EXPERIENCE |
4 |
|
ARRANGED EMPLOYMENT |
0 |
|
DEMOGRAPHIC FACTOR |
8 |
|
EDUCATION |
10 |
|
ENGLISH |
6 |
|
FRENCH |
0 |
|
PERSONAL SUITABILITY |
6 |
|
TOTAL |
56 |
You have obtained insufficient units of assessment to qualify for immigration to Canada in your intended occupation.
Based on my evaluation of your ability to speak English, and upon my assessment of the results of the tests I administered during the course of your interview to gauge your ability to read and write English, you have demonstrated that you read, speak and write English "well". Accordingly, pursuant to Factor 8 of Schedule I of the Immigration Regulations, I have awarded you 6 units of assessment with respect to your ability in this regard.
According to Factor 9 of Schedule [sic] to the Immigration Regulations, "Units of assessment shall be awarded [to a maximum of 10] on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities". I have awarded units of assessment in this regard based on the information provided with your application and your answers to my questions at interview. Among the factors I have taken into account in determining your personal suitability award are: the extent of the preparations you have undertaken to inform yourself about general living conditions in Canada and about labour market conditions in your particular intended occupation, efforts you have made to keep current with regard to developments in your occupational field, the transferability of your skills to the Canadian labour market, assets readily available for establishment in Canada, and the number and ages of your dependants and their capability of contributing at this time to your successful establishment in Canada.
I consider the total units of assessment which you have been awarded to be an accurate reflection of your ability to successfully establish in Canada.
Although this decision is unfavourable to you, the interest you have shown in Canada is appreciated.
[3] Section 11(3) of the Regulations authorizes a visa officer to issue or deny a visa regardless of the number of points by an immigrant. The section reads as follows:
| 11 (3) A visa officer may (a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or (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. |
11 (3) L'agent des visas peut a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10, 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. |
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[4] It appeared from the visa officer's letter that she considered that the points obtained by the plaintiff were an exact assessment of her chances of succeeding in her move to Canada. In my opinion, in concluding as she did the visa officer made an error that justifies intervention by this Court.
[5] In Chen v. Canada, [1994] 1 F.C. 639 (F.C.A.) and [1991] 3 F.C. 350 (T.D.), this Court had occasion to consider the scope of the discretion which a visa officer has under s. 11 (3)(b) of the Regulations. This is what Robertson J.A. of the Federal Court of Appeal, whose dissent was upheld by the Supreme Court of Canada, said at 649-651:[1]
ROBERTSON J.A. (dissenting): With respect, I am unable to agree.
While I cannot condone the actions of the respondent, neither can I accept that subsection 11(3) of the Immigration Regulations, 1978 was intended to vest visa officers with a broad residual discretion when deciding whether to grant or deny visas. I am in agreement with the learned Trial Judge when he stated (at page 359):
More specifically, the basic question is – on what grounds can 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. It may first be observed that subsection 11(3) cannot be taken to overlap the grounds of mandatory exclusion set out in the description of the "inadmissible classes" found in section 19.
In short, I am of the view that when deciding persons' ability to successfully establish themselves in Canada the determination criteria must be restricted to matters relating to their ability to make a living. That determination cannot and should not be influenced by conduct which suggests moral turpitude. Sections 9 and 19 of the Immigration Act, 1976 specifically addressed that type of concern by excluding those persons who have committed acts which Parliament has identified as warranting exclusion. In the case at bar, it has been conceded by the Minister that neither subsection 9(3) nor paragraph 19(2)(d) of the Act, as it then read, can be invoked to exclude the respondent and his family. On this point, the decision of this Court in Kang v. Minister of Employment and Immigration, [1981] 2 F.C. 807, is binding. That being so, I do not think it is open to this Court to invoke subsection 11(3) with the effect of reaching a result which cannot otherwise be achieved.
On the facts before us, the visa officer invoked the respondent's conduct as the basis for overriding an assessment which at all times remained favourable. I fail to understand how the "alleged bribe" can be viewed as either a relevant or overriding factor when evaluating whether the respondent will be able to successfully establish himself in Canada. I am also troubled by the prospect of giving judicial recognition to a criterion which hinges on notions of "good reasons" and "social success". To be precise, my colleagues have expressed this view as follows (at page 646):
[The Regulations] also refer to social success, that is to say to an immigrant's ability or chances of successfully establishing himself or herself socially in Canada.
Undoubtedly, there are those who will view the disposition of this appeal in terms of achieving a just result. My concerns are also rooted in the prospect of being called upon to evaluate the objective merit of visa officers' subjective assessments.
For the above reasons, I would dismiss the appeal with costs.
[6] Accordingly, to decide whether an immigrant is capable of successfully establishing himself or herself in Canada, a visa officer should take into account only the factors affecting the immigrant's ability to earn a living. In other words, as Strayer J.A. said in Chen, supra, at 361, the visa officer in exercising the discretion under 11(3)(b) of the Regulations should consider only the economic factors mentioned by Parliament and the Governor in Council.
[7] In response to the plaintiff's affidavit, Ms. Tan filed an affidavit dated August 2, 2000. In particular, at para. 15 of her affidavit the visa officer responded to para. 13 of the plaintiff's affidavit. Paragraph 13 of the plaintiff's affidavit reads as follows:
13. That Mrs. Tan did not take into consideration that fact that my husband and I hold job offers in Canada. A job offer letter from Mr. Anthony Persaud, CAN_US [sic] International Consolidators Inc., is attached hereto and marked as Exhibit-H.
The job offer from CAN-US International Consolidators Inc. referred to by the plaintiff is a letter of March 24, 2000, signed by Anthony B. Persaud, executive vice-president. The letter reads as follows:
I would like to acknowledge that I have known Bernadette Randolph and her husband Cedric Randolph for several years, and we have spent some memorable times together in Bangladesh, where they were most hospitable in making my stays truly enjoyable.
I have also been involved with a number of business deals with Cedric Randolph, in the Freight Forwarding industry, which continues today.
Given my knowledge of both of their good character and extensive relevant work experience, I would be more than willing to offer Bernadette Randolph a full-time position with our company as an Executive Secretary, and for Cedric Randolph, a full-time position as an Associate Overseas Freight Coordinator.
I trust this information is helpful to you, and should you wish to contact me at any time, please don't hesitate to do so at your convenience.
[8] Paragraph 15 of Ms. Tan's affidavit reads as follows:
15. In response to paragraph 13 of the Applicant's affidavit, I did consider the job offers submitted by the Applicant but did not give them much weight as they were not validated by a Canada Employment Centre.
[9] At para. 15 of her affidavit Ms. Tan explained that she did not attach much weight to the job offers because they had not been validated. For all practical purposes, Ms. Tan did not consider the job offers made to the plaintiff and her husband. Mr. Moreau, the plaintiff's counsel, explained to the Court that a validated offer was relevant in terms of factor 5 of Appendix I to the Regulations, which reads as follows:
| 5. Arranged Employment or Designated Occupation Ten points shall be awarded if, in the opinion of the visa officer, (a) the person has arranged employment in Canada that, based on the information provided by the National Employment Service, offers reasonable prospects of continuity and wages and working conditions sufficient to attract and retain in employment Canadian citizens or permanent residents, (b) based on information provided by the National Employment Service, employment of the person in Canada will not adversely affect employment opportunities for Canadian citizens or permanent residents in Canada, and (c) the person will likely be able to meet all federal, provincial and other applicable licensing and regulatory requirements related to the employment, or if, in the opinion of the visa officer, (d) the person is qualified for and is prepared to engage in employment in a designated occupation, (e) based on information provided by the National Employment Service, employment in the designated occupation offers reasonable prospects of continuity and wages and working conditions sufficient to attract and retain in employment Canadian citizens or permanent residents, and (f) the person will likely be able to meet all federal, provincial and other applicable licensing or regulatory requirements related to employment in the designated occupation. |
5. Emploi réservé ou profession désignée Dix points d'appréciation sont attribués si, de l'avis de l'agent des visas, a) le requérant a, au Canada un emploi réservé qui, d'après les renseignements fournis par le service national de placement, offre des perspectives de durée raisonnablement bonnes et des conditions de travail et un salaire de nature à attirer des citoyens canadiens ou des résidents permanents pour qu'ils exercent et continuent d'exercer l'emploi en question, b) d'après les renseignements fournis par le service national de placement, le fait d'employer le requérant au Canada ne nuira pas aux possibilités d'emploi des citoyens canadiens ni des résidents permanents résidant au Canada, et c) le requérant pourra probablement obtenir, des autorités fédérales, provinciales et autres, l'autorisation nécessaire pour l'emploi en question, ou si, de l'avis de l'agent des visas, d) le requérant possède les compétences voulues pour exercer un emploi dans une profession désignée et est disposé à le faire, e) d'après les renseignements fournis par le service national de placement, l'emploi dans cette profession désignée offre des perspectives de durée raisonnablement bonnes et des conditions de travail et un salaire de nature à attirer des citoyens canadiens ou des résidents permanents pour qu'ils exercent et continuent d'exercer l'emploi en question, et f) le requérant pourra probablement obtenir des autorités fédérales, provinciales et autres, l'autorisation nécessaire pour exercer un emploi dans cette profession désignée. |
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Factor 5 provides that a number of points will be awarded to an immigrant if his or her job offer is validated. As the job offers in the case at bar were not validated the visa officer, in my opinion correctly, awarded no points to the plaintiff.
[10] However, the validation of the plaintiff's job offer has no bearing on her chances of successfully establishing herself in Canada. There can be no question that the job offers are relevant to exercise of the discretionary power under s. 11(3)(b) of the Regulations and so Ms. Tan should have considered them. Ms. Tan did not refuse to consider the job offers because she did not think they were genuine, but because they had not been validated. In my view, this is an error such that the case must be referred back to another visa officer for reconsideration.
[11] The application for judicial review will accordingly be allowed and the case referred back to another visa officer to be reconsidered in light of my reasons.
|
Marc Nadon Judge |
OTTAWA, Ontario
February 7, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-2604-00
STYLE OF CAUSE: Mary Bernadette Randolph v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 24, 2001
REASONS FOR ORDER BY: NADON J.
DATED: February 7, 2001
APPEARANCES:
Albert Bellemare PLAINTIFF
Marie-Nicole Moreau DEFENDANT
SOLICITORS OF RECORD:
Albert Bellemare PLAINTIFF
Montréal, Quebec
Morris Rosenberg DEFENDANT
Deputy Attorney General of Canada