Date: 20020212
Docket: IMM-3028-00
Neutral reference: 2002 FCT 157
Ottawa, Ontario, February 12, 2002
BEFORE: EDMOND P. BLANCHARD
BETWEEN:
TRANSITO CARDENAS PLATA
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1] The Court has before it an application for judicial review from a decision by Nathalie Smolynec, visa officer, on April 26, 2000.
STATEMENT OF FACTS
[2] The plaintiff, a citizen of Colombia, filed her application to immigrate to Canada in October 1998 in the independent class based on her occupation of social worker (CCDO#4152.0).
[3] In February 2000 the plaintiff had an interview at the Canadian Embassy in Colombia.
[4] On April 26, 2000, the visa officer dismissed the application, awarding 64 merit units, specifying the units awarded for the following factors:
Factor Units
Education 15
Specific vocational preparation 17
Experience 08
Occupational demand 05
Arranged employment or designated occupation 00
Demographic factor 08
Age 00
Knowledge of English and French language 06
Personal suitability 05
Total: 64
[5] The plaintiff submitted that the visa officer infringed the rule of natural justice by expressing an opinion on the outcome of the application before the interview. By acting in this way the visa officer allegedly demonstrated bias and so exceeded her jurisdiction. The plaintiff also maintained that the visa officer showed bad faith since she had already prepared her letter of rejection on March 15, 2000, several weeks before the date of the decision on April 26, 2000. In the plaintiff's submission, factors of a humanitarian nature and factors relating to her personal situation were only explained to the visa officer in a letter dated March 10, 2000. Accordingly, it follows that the visa officer did not consider all the evidence.
[6] I cannot accept these arguments. The plaintiff based her arguments on two passages from e-mail transcripts found in the record of the tribunal, which I set out below:
JOYCE - PLS PREPARE REFUSAL LETTER AND GET ROLF REFUND
NS 15-MAR-2000
This was a case where the applicant had an unvalidated job offer from a Canadian group. We awarded no points for that invalidated job offer. The JR application seems to take issue with that. I was the deciding officer (just what I need less than 2 weeks prior to departure!!!). This was a pretty weak application all around. The points were so low that I did not even really get into her qualifications of experience (since was not passing with or without them). I also made the mistake of leaving the language points at 6 (even thought the subject's language was quite poor), again, because it seemed moot to the final decision.
These documents must be considered in light of all the evidence, specifically the visa officer's affidavit (see para. 13, tribunal's record) which very clearly states that her negative decision was not finalized before April 26, 2000. That affidavit maintains that the visa officer gave the plaintiff every opportunity to show that her offer of employment was in accordance with the Regulations. I can only conclude that the visa officer acted in good faith.
[7] As to the e-mail of June 15, 2000, I note of course that this was written over six weeks after the decision. In that e-mail the visa officer noted, after her decision, that the case was pretty weak and that she might have erred in the plaintiff's favour in awarding the units for the latter's language ability. In my opinion, this e-mail does not indicate any prejudice on the part of the visa officer.
[8] The plaintiff further argued that the officer erred in failing to consider the humanitarian factors set out in the letter of March 10, 2000.
[9] The defendant maintained that there was no evidence and no allegation of persecution before the visa officer. The defendant argued that this was not an application under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, nor an application for refugee status.
[10] In Umeda v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1603, on line: Q.L., at paras. 2-3, Rothstein J. said:
(2) The applicant says the visa officer found there were no humanitarian and compassionate factors that would warrant special consideration in her case. However, she says the visa officer ignored her relationship with her boyfriend. The boyfriend was mentioned in the interview, but the applicant says the visa officer did not delve into in the relationship and their future plans.
This is not a question of ignoring evidence. There was no evidence before the visa officer on this matter. The applicant's real complaint is that the visa officer did not ask questions to elicit information that might have assisted her. There is no such obligation on the visa officer. In Hajariwala v. Canada (Minister of Employment and Immigration) et al. (1988), 6 Imm.L.R. (2d) 222 at 227 Jerome A.C.J. states:
It is clearly, therefore, the responsibility of the applicant to produce all relevant information which may assist his application. The extent to which immigration officers may wish to offer assistance, counselling or advice may be a matter of individual preference or even a matter of departmental policy from time to time, but it is not an obligation that is imposed upon the officers by the Act or the Regulations.
In Ludwig v. Canada (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 271, at 282-283, paras. 43-44, Nadon J. noted:
In a judicial review application, I can only determine whether or not the visa officer's decision was reasonable at the time the decision was made to refuse the application. Since the applicant had not indicated his marital status had changed and since he was applying as an independent applicant, the respondent contends that the decision was reasonable in that there was no unusual evidence before him to warrant humanitarian and compassionate consideration. ...
... It is clear from the face of the applicant's permanent residence application and from the visa officer's evidence that the applicant indicated no humanitarian and compassionate grounds that the visa officer could consider. The applicant's engagement was not made known to the Minister. Further, there is nothing preventing the applicant from reapplying for permanent residence and stating that he is engaged to Ms. Mickleborough. As Mr. Justice Cullen noted in Ismaili, it is "trite law that only evidence that was before the decision-maker can be considered on judicial review".
[11] In my view, the letter of March 10 cannot be regarded as an unambiguous application by the plaintiff pursuant to subsection 114(2) of the Immigration Act nor an application for refugee status. I accept the defendant's arguments: there was no evidence before the visa officer that would cause her to so regard it.
[12] The plaintiff further argued that the visa officer erred in giving no reason for not exercising her discretion under subsection 11(3) of the Immigration Regulations, 1978.
[13] The defendant alleged that the visa officer explained why she could not exercise her discretionary authority, namely, she was not convinced that the points awarded did not accurately reflect the plaintiff's prospects of becoming successfully established in Canada.
[14] In fact, in her letter the visa officer explained:
I have also considered the exercise of discretion under section 11(3) of the Immigration Regulations, 1978, which requires me to examine whether there are good reasons why the number of units of assessment awarded to you do not reflect your chances of becoming successfully established in Canada. I have concluded that the units of assessment in this case accurately reflect your prospects of becoming successfully established in Canada and, for this reason, I cannot approve your application. [My emphasis.]
[15] In Arora v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 845, on line: QL, at p. 2, para. 8, Dawson J. said:
In Hao v. Canada (The Minister of Citizenship and Immigration), [2000] F.C.J. No. 296, Reed J. of this Court reviewed jurisprudence from this Court with respect to the standard of review applicable to the review of a visa officer's decision. She adopted the standard of reasonableness simpliciter. I endorse Justice Reed's analysis and adopt the reasonableness simpliciter standard.
[16] Further, in Bonilla v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 29, on line: QL, at pp. 8 and 9, para. 28, O'Keefe J. noted:
The visa officer's determination of the law must be correct while her decisions relating to the application of the facts to the law, which is a question of mixed fact and law, must be assessed on the standard of reasonableness simpliciter.
[17] I have considered the plaintiff's written arguments and the submissions of her counsel on the question of the assessment by the visa officer of the various factors and the units awarded for those factors. To these facts I have applied the standard of "reasonableness simpliciter". I find that the visa officer's conclusion was reasonable and I can find no ground to justify this Court's intervention.
[18] For these reasons, the application for judicial review will be dismissed.
[19] Neither counsel suggested certification of a serious question of general importance resulting from the application for judicial review. No question will be certified.
ORDER
THE COURT ORDERS that:
1. The application for judicial review of the visa officer's decision, rendered on April 26, 2000, is dismissed.
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"Edmond P. Blanchard"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-3028-00
STYLE OF CAUSE: Transito Cardenas Plata v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 20, 2001
REASONS FOR ORDER AND ORDER BY: BLANCHARD J.
DATED: February 12, 2002
APPEARANCES:
Joan Manafa FOR THE APPLICANT
David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joan Manfa FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada