Federal Court Decisions

     IMM-1132-96

BETWEEN:

     SUGOOR KHAN,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

RICHARD J.

     This is an application under s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, seeking the following:

(a)      an order in the nature of certiorari to quash a decision of the visa office at the Commission for Canada, Hong Kong, refusing to issue an immigrant visa to the applicant as an assisted relative, which decision was set out in a letter dated February 6, 1996, and signed by Second Secretary, Don Solomon, and communicated to the applicant on or about February 28, 1996; and

(b)      an order in the nature of mandamus ordering the respondent to reassess the applicant under subsection 11(3) of the Immigration Regulations and to process the Application for Permanent Residence in accordance with the Immigration Act and the Regulations; and

     (c)      such further order as the Court may allow; and

(d)      costs on a solicitor and client basis.

BACKGROUND

     The applicant is a citizen of Hong Kong born on January 9, 1939. In 1991, the applicant was included, together with her sister, Hafiza Khan, as an accompanying dependent in the family class sponsored Application for Permanent Residence submitted by her 93 year old mother. This application was refused in 1995 due to the mother's medical condition. After retaining the services of an immigration consultant, the applicant submitted an Application for Permanent Residence in the assisted relative category to the Commission for Canada in Hong Kong on or about September 7, 1995. The consultant specifically requested in his letter accompanying the Application that the Commission exercise positive discretion on the basis that the selection criteria do not accurately reflect the likelihood that the applicant would be able to successfully establish herself in Canada.

     The Application was initially rejected by the Visa Officer, without the benefit of an interview, on the basis that the applicant, who was assessed as an executive secretary, received only 54 of the 55 units of assessment necessary to be called for an interview. The Visa Officer's reasons for refusal were set out in a letter received by the applicant on or about December 8, 1995. No reference was made in the refusal letter to the consideration of positive discretion.

     Pursuant to instructions received on or about December 11, 1995 from the Operations Manager, the Visa Officer re-opened the file and scheduled an interview of the applicant for January 23, 1996 for the purpose of determining whether the application of positive discretion or humanitarian and compassionate grounds was justified.

     The applicant advanced the following facts. The applicant's mother died in January 1996. The applicant's only relative in Hong Kong is her sister, Hafiza Khan, who also submitted an Application for Permanent Residence to Canada, which was being considered by another officer at the Commission for Canada during this time. Both the applicant and her sister, Hafiza, are spinsters. Four of their brothers and sisters are permanent residents in Canada. The applicant is employed as an executive secretary with The Chief Secretary's Office of the Hong Kong Government earning the equivalent of CDN $44,178.00 per year. She has assets of CDN $865,865.00 and a transferable annual pension entitlement equivalent to CDN $14,700.00. She had an offer of employment as a secretary with her niece's public relations company in Toronto and with respect to her knowledge of English, the Visa Officer noted that she "speaks flawlessly".

     The applicant was interviewed by the Visa Officer on January 23, 1996, and by letter dated February 6, 1996, the officer refused to exercise positive discretion stating as follows:

In view of your first-hand familiarity with Canada, your personal net worth of C$500,000, the fact that many of your relatives are permanent residents of Canada and, the possibility that your niece could employ you in Toronto, I have considered recommending the application of positive discretion to enable you to be issued an immigrant visa, despite your failure to earn the minimum required number of units of assessment. However, I believe that the units of assessment which you have been awarded are an accurate reflection of your ability to successfully establish in Canada. You are now well beyond the age considered optimal for settlement in Canada. You have worked for the same employer since 1960, you have been employed at the same level since 1974 and, you have not demonstrated an effort to improve your occupational skills since becoming employed.

     When, on cross-examination, it was put to the Visa Officer that the applicant had a personal net worth of $865,000.00 rather than $500,000.00, he responsed:

I would note however that any amount in excess of the first CAD$100,000 would have little effect on the applicant's ability to become established in the labour force, which is what the independent selection criteria are designed to assess. Consequently, the difference between the CAD$500,00 net worth figure and the CAD$865,000 net worth figure would have no effect on the points I allocated to the applicant or on my decision not to exercise positive discretion under s.11(3) of the Immigration Regulations.

     The Visa Officer further indicated why he discounted the job offer, in his affidavit sworn June 4, 1996:

... I do recall seeing an offer of employment from the applicant's niece who operates a consulting firm in Toronto and I did consider this offer in my assessment. I did not accord this offer much weight, as it was a non-binding offer from a relative of the applicant running a small business.

     The Visa Officer, in cross-examination, agreed that the job offer was bona fide but added:

I accepted, without evidence, that the job offer was bona fide, although I also understood that there was no guarantee that this job would be available, as with any informal job offer.

     When asked whether he requested the applicant to provide a letter from her employer, he answered as follows:

A. I could not have asked her to provide me with any guarantee that this job would in fact be available to her when she arrived in Canada because she has no control, and for that matter the person operating the company only has limited control over how long a particularly job remains available, or a company remains viable.

Q. Taking that test, no job offer to any applicant could ever be guaranteed to you, isn't that correct?

         A. That is perfectly right.

RELEVANT STATUTORY AND REGULATORY PROVISIONS

     Subsection 6(1) of the Immigration Act requires a visa officer to assess an immigrant in accordance with the Regulations in order to determine whether the immigrant will be able to become "successfully established" in Canada. Subsection 6(1) states as follows:

6.(1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependents, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations.

     Subsection 8(1) of the Regulations sets out the criteria to be applied by a visa officer in determining whether the immigrant will become successfully established in Canada and states as follows:

Subject to section 11.1, for the purpose of determining whether an immigrant ... will be able to become successfully established in Canada, a visa officer shall assess that immigrant ...

(a) in the case of an immigrant ... on the basis of each of the factors listed in column I of Schedule I;

     Column I of Schedule I sets out the nine factors which a visa officer must assess comprising education, specific vocational preparation, experience, occupational demand, arranged employment or designated employment, demographic factor, age, knowledge of English or French, and personal suitability.

     Subsection 10(1) of the Regulations gives the visa officer the discretion to issue a visa to an immigrant applying in the assisted relative category under the following terms:

Subject to subsections (1.1) and (1.2) and section 11, where an assisted relative makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the assisted relative ... if

(a) he and his dependents ... are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;

(b) in the case of an assisted relative ..., on the basis of an assessment made in accordance with section 8, the assisted relative is awarded at least 65 units of assessment; and

         ...

     Subsection 11(3) of the Regulations gives the Visa officer a particular discretion to issue a visa notwithstanding an award of less than 65 units in the following situation:

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 ...

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 dependents of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.

     The Act adds an additional requirement for the selection of immigrants by requiring that an independent immigrant must have the ability to be self-supporting. This requirement is found in paragraph 19(1)(b) of the Act.

     Section 8 of the Regulations clearly indicates that the purpose of the selection criteria is to properly assess whether the person will be able to become "successfully established in Canada". The discretion under subsection 11(3) can be exercised by the officer if there are "... good reasons why the number of units of assessment awarded do not reflect the chance of the particular immigrant ... of becoming successfully established in Canada...". The inclusion of this discretion in subsection 11(3) is clearly for the purposes of covering situations where the selection criteria fail to properly assess what they are designed to assess, as both sections refer to the ability of the applicant to become "successfully established in Canada". In considering the intent of the legislation as it relates to the scope of discretion under subsection 11(3) and specifically the meaning of "successfully established in Canada", it is proper to look at the factors set out in the selection criteria to determine what they are designed to assess.

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JURISPRUDENCE

     In Chen¹ and Mangat,² the Court found that the officer erred when exercising the discretion under subsection 11(3) by taking into account the individuals' criminal or dishonest conduct.

     As stated in the dissent of Robertson, J.A. in the Federal Court of Appeal:³

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 specifically address that type of concern...

     The dissenting opinion of Mr. Justice Robertson was later adopted by the Supreme Court of Canada.⁴

     In Covrig⁵ Mr. Justice Muldoon made the following statements concerning the Chen decision:

It is difficult to interpret what the Chen suggests for the instant case. Although Strayer J., and Robertson, J.A., caution against the use of ss. 11(3) so as to overlap with other provision of the Act, the provision which these honourable judges were contemplating would seem to have been the criminality exclusions under s. 19 and not the enumerated selection criteria in Schedule I of the Immigration Regulations. Indeed, it would seem that Mr. Justice Strayer was guided by the enumerated selection criteria including that only economic factors relating to successful establishment could be grounds for refusal under s. 11(3). This would almost necessarily contemplate consideration of some of the same criteria under the points system. Although this reading of s. 11(3) appears to overlap with s. 19(1)(b) of the Immigration Act, "successfully established", even if interpreted in the purely economic sense, is not synonymous with ability and willingness to support oneself and one's dependents as contemplated in s. 19(1)(b). Although the latter is grounds for mandatory exclusion, the former implies a higher level of success and the failure to be perceived as having the potential to reach this level may be grounds for discretionary refusal of the particular individuals attempting to enter Canada as independent immigrants.

     In Mangat,⁶ Mr Justice Strayer expressed the view that "the discretion which may be exercised under s. 11(3) must be based on the chances the applicant has of becoming successfully established in Canada. It is not a general discretion at large conveyed on the visa officer to reject would-be-immigrants simply because the visa officer thinks such persons are unlikely to be good residents of Canada."

     In Savin v. Canada (M.C.I.)⁷ Cullen J. agreed with Strayer J. in Chen with respect to the importance of economic reasons in determining the discretion under subsection 11(3). He was of the view that, provided 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.

CONCLUSION

     While the discretion conferred on the visa officer under s. 11(3) is a broad one, it is not an unrestricted discretion at large, either to reject or to grant an application for permanent residence. It must be exercised in good faith and for the purpose it was given. It cannot be based on irrelevant considerations or ignore relevant considerations. There is no allegation of bad faith here. However, the Visa Officer clearly discounted the applicant's bona fide job offer to the point where he considered that it was not available. This was not a question of assigning weight to the job offer but amounted to completely ignoring a relevant consideration.

     In the circumstances of this case, the Visa Officer did not exercise his discretion under s.11(3) according to law and, as a result, his decision must be set aside. I direct that the applicant's application for a positive discretion under s. 11(3) be considered and determined, as soon as practicable, by a different visa officer.

     __________________________

     Judge

Ottawa, Ontario

March 12, 1997

__________________

¹      Chen v. M.E.I. (1991), 45 F.T.R. 97.

²      Mangat v. M.E.I. (1991), 45 F.T.R. 128.

³      Chen v. M.E.I., [1994] 1 F.C. 639 at 650 (F.C.A.).

⁴      [1995] 1 S.C.R. 725.

⁵      Covrig v. M.C.I. (1995), 104 F.T.R. 41.

⁶      Supra, note 2 at p. 132.

⁷      IMM-4712-94, October 11, 1995 (F.C.T.D.) unreported.