Date: 20020813
Docket: IMM-4678-00
Neutral citation: 2002 FCT 857
BETWEEN:
SOON JA KIM
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] In this judicial review, the issue is whether the visa officer failed to take into account relevant considerations in exercising her discretion against the applicant under subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172.
[2] The applicant applied for permanent residence as an assisted relative with a family business job offer. She received forty units of assessment, insufficient to qualify for immigration to Canada. The visa officer considered the applicant's request for an exercise of positive discretion under subsection 11(3) but found that the points awarded accurately reflected the applicant's chances of successful establishment in Canada.
[3] The applicant says that in exercising her discretion, the visa officer failed to take into account her family business job offer, her close relatives in Canada and the fact she was able to invest in the family business in Canada.
[4] The points awarded took into account the arranged employment and the close relatives in Canada. The visa officer indicates in the CAIPS notes the funds available by the applicant. The visa officer did not ignore the considerations the applicant alleges she should have taken into account.
[5] In Chen v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 78, Evans J. (as he then was) expressed the view, at paragraph 23 of his reasons, that the visa officer's residual discretion provided under subsection 11(3) "should be decisive only in cases that present unusual facts, or where the applicant has come close to obtaining 70 units of assessment". I agree with this view. The applicant's arranged employment and close relatives in Canada were accounted for in her assessment. However, she still received only 40 units. This is not a case where the applicant has come close to 70 units or where there are any special factors that were ignored by the visa officer.
[6] The applicant says that because she was prepared to invest in the family business, she might have applied under the entrepreneur category and would have received 70 units had she done so. It is not for the Court to make that assessment. In any event, I cannot say that the visa officer erred in not assessing her as an entrepreneur when she did not apply in that category. Counsel indicated that she could make a new application in the entrepreneur category if she chose to do so.
[7] Finding no reviewable error in the decision of the visa officer, I would dismiss this judicial review.
"Marshall Rothstein"
Judge
Toronto, Ontario
August 13, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4678-00
STYLE OF CAUSE: SOON JA KIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, AUGUST 8, 2002
REASONS FOR ORDER BY: ROTHSTEIN J.A.
DATED: TUESDAY, AUGUST 13, 2002
APPEARANCES BY: Mr. Jegan N. Mohan
For the Applicant
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Mohan & Mohan
Barristers & Solicitors
3300 McNicoll Ave.
Suite 225
Scarborough, Ontario
M1V 5J6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20020813
Docket: IMM-4678-00
BETWEEN:
SOON JA KIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER