Federal Court Decisions

Date: 20020425

Docket: IMM-513-01

Neutral citation: 2002 FCT 464

BETWEEN:

                                                                       TRI HUU DO,

                                                                                                                                                      Applicant,

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                                                                                                                                  Respondent.

                                                            REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1]                 Tri Huu Do, in his application for judicial review, requests that the December 12, 2000 decision of a visa officer at the Canadian High Commission in Singapore, denying his application for permanent residence in Canada, be quashed and that the application be referred back to the Canadian High Commission for consideration before the same visa officer.

[2]                 The applicant, a dry cleaner in Ho Chi Minh City, is a Vietnamese citizen. He has a sister, Minh Thu Do, and a brother-in-law, Thanh Le, who own and operate Riverside Alterations and Cleaners in Ottawa, Ontario. In 1998, Ms. Do and Mr. Le extended an Offer of Employment to the applicant. In November of that year, Ms. Do and Mr. Le submitted an application to Citizenship and Immigration Canada (CIC) in Ottawa for approval of the Offer of Employment. The approval was granted on February 9, 1999. The applicant applied for permanent residence in Canada in the assisted relative category on October 26, 1999 at the Canadian High Commission in Singapore. His application included his wife and two children as dependants. Item 9b of his application listed his intended occupation in Canada as dry cleaner, National Occupation Classification (NOC) code 6681.1. On December 8, 2000, the applicant was interviewed by the visa officer whose notes of the interview are contained in the Computer Assisted Immigration Processing System (CAIPS) notes and form part of the Tribunal Record. By letter dated December 12, 2000, Mr. Do's application was denied landing on the basis that, having been awarded 40 units of assessment rather than the minimum requirement of 65 for persons in the assisted relative category, he failed to qualify for immigration.

[3]                 The applicant attacks the decision of the visa officer on two grounds. The first is that irrelevant considerations were taken into account and relevant considerations were ignored by the visa officer in conducting the assessments awarded for the personal suitability (04), age (08) and language (00) factors. The second ground is that the visa officer breached the duty of fairness and failed to observe a principle of natural justice in not applying positive discretion under subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172, as amended.

[4]                 At the hearing of the application for judicial review, counsel did not press the argument with respect to the units of assessment evaluation and submitted that the true issue was that of subsection 11(3). It was prudent for counsel to take such an approach. If the applicant had been awarded full assessment points for the aforementioned categories, he would still not have reached the requisite 65 units. Thus, even if the visa officer had erred, the error would have been immaterial. An error that is not material to the outcome, will not result in relief being granted: Patel v. Canada (Minister of Citizenship and Immigration), 2002 FCA 55, [2002] F.C.J. No. 178; Ahluwalia v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 125 (T.D.) and Syed v. Canada (Attorney General), [1999] F.C.J. No. 451 (T.D.).

[5]                 With respect to the second ground, the applicant cites Chen v. Canada (Minister of Employment and Immigration), [1995] 1 S.C.R. 725, as authority for the proposition that an assessment must be from an economic perspective. Because he has an offer of employment in Canada, which has been determined to be bona fide by CIC, because he has the experience necessary for the job, because the visa officer has noted him to be self-supporting and to have significant assets, the applicant says that he should be granted a visa. He relies on Savvateev v. Canada (Minister of Citizenship and Immigration) (1999), 170 F.T.R. 317 to negate any obligation, on his part, to request consideration under subsection 11(3). The applicant submits that it was incumbent on the visa officer, in the circumstances, to exercise positive discretion and that his failure to do so was unreasonable.

[6]                 Subsection 11(3) of the Immigration Regulations provides the visa officer with discretion to either issue or deny a visa in circumstances where the officer concludes, for reasons subject to written submission to, and approval by, a senior immigration officer, that the number of units of assessment awarded do not reflect the chances of the applicant becoming successfully established in Canada.

[7]                 In Chen v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 78, Evans J. (as he then was) stated at page 83:

. . . it is not a function of this court to determine whether the visa officer has given sufficient weight to this consideration. This is a matter for the exercise of the statutory discretion entrusted to the visa officer in light of the complete file, including how close the applicant is to obtaining the normally required number of units. Only if the visa officer's exercise of discretion can be characterized as arbitrary or capricious or otherwise unreasonable should the court intervene. . . .

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 [the required] units of assessment. (Emphasis added)

[8]                 Chen has been applied in several cases: Zeng v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1486 (T.D.); Lin v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1272, [2001] F.C.J. No. 1738 and Gao v. Canada (Minister of Citizenship and Immigration), 2002 FCT 43, [2002] F.C.J. No. 48.

[9]                 The units of assessment is the conventional manner in which visa officers determine visa eligibility. The discretion provided for in subsection 11(3) is exceptional and an applicant must request that the visa officer exercise discretion where the application fails under the units of assessment determination: Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316. There may, however, be facts evident on the face of the application that reveal unusual circumstances, which should prompt the visa officer to consider whether to exercise discretion under subsection 11(3): Savvateev, supra.

[10]            Savvateev did not require that a visa officer exercise positive discretion, as submitted by the applicant.    Rather, Justice McGillis concluded that ". . . the visa officer ought to have considered whether to exercise her discretion to issue a visa to the applicant under ss. 11(3) of the Regulations, given the facts revealed in the application for permanent residence . . ." . (Emphasis added)

[11]            That is not the situation here. In his affidavit, the visa officer states that the applicant did not request that he exercise discretion pursuant to subsection 11(3) of the Immigration Regulations at the interview or at any other time. The officer goes on to state that he is of the view that the number of units of assessment awarded to the applicant accurately reflect his chances of becoming successfully established in Canada. Additionally, the CAIPS notes state:

Has not seen sponsor since her emigration and no apparent grounds for special consideration.

[12]            Thus, the visa officer did consider the issue of the exercise of discretion. The comments of Mr. Justice MacKay in Sandhar that ". . . the CAIPS notes of the officer made at the time of the applicant's interview, indicate clearly . . . that the visa officer implicitly concluded this was not a case for the exercise of special discretion" apply in this case.

[13]            I do not find that the decision of the visa officer was unreasonable. As in Sandhar, no ground is established that would warrant intervention of the Court. The application for judicial review is therefore dismissed.

[14]            Counsel did not suggest a serious question of general importance therefore no question is certified under subsection 83(1) of the Immigration Act.

_________________________________

   Judge

Ottawa, Ontario

April 25, 2002