Date: 20000719
Docket: IMM-5077-99
Toronto, Ontario, Wednesday, the 19th day of July, 2000
PRESENT: The Honourable Madam Justice Reed
BETWEEN:
WING KI AU YEUNG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON hearing the application for judicial review in Toronto, Ontario, on Monday, July 17, 2000;
AND for the reasons for order issued this day.
IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"B. Reed"
Judge
Date: 20000719
Docket: IMM-5077-99
BETWEEN:
WING KI AU YEUNG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to the judicial review of a visa officer's decision, dated October 5, 1999, refusing the applicant's application for permanent residence in Canada.
[2] The applicant indicated that the occupation he intended to pursue in Canada was that of police constable. He had followed that occupation in Hong Kong for twenty-two years.
[3] At the paper-screening stage, the applicant was assessed 58 points; in-person interviews are usually only granted when a potential immigrant has obtained 60 points of assessment at the paper-screening stage; after the interview he was awarded 62 points; 70 points are usually required for the issuance of a visa.
[4] In this case, the applicant was granted an in-person interview even though he had only been assessed 58 points on paper-screening, because there was evidence that the applicant had applied to the Toronto Police Force for a job. There was evidence that the Toronto Police Force was recruiting Chinese speaking applicants for employment as police officers.
[5] Thus, while the occupational demand for police constables was zero, and this would normally preclude an applicant being granted a visa (Immigration Regulation 11(2) so requires), the visa officer decided that fairness to the applicant required that an interview be granted in order to ascertain the status of the applicant's employment application, and whether positive discretion pursuant to Regulation 11(3) should be exercised. The CAIPs notes at the paper-screening stage read:
| Overall, I am inclined to refuse this application. PI has applied in an occupation for which there is no demand. Though he has made application for employment with the Toronto police force, there is no evidence in appln form or in supporting docs that a PFWR is even a possibility. |
| In the interest of fairness however, will send this file to interview to allow PI an opportunity to present his case. Interview to determine if the use of 11(3) is appropriate. |
| Perhaps PI will have had a response form Toronto police by that time and request for a PFWR will be in order. |
[6] Regulation 11(3) allows a visa officer to grant a visa to an applicant even when he or she does not obtain 70 units of assessment, when the visa officer is of the opinion that there are "good reasons" to conclude that the units of assessment awarded do not reflect the chances of the particular immigrant ... becoming successfully established in Canada".
[7] At the in-person interview, the visa officer recorded in her CAIPs notes:
| . . . |
| ASKED SUBJ IF HE REC'D ANY RESPONSE FROM THE TORONTO POLICE DEPARTMENT REGARDING APPLICATION HE SUBMITTED. SUBJ SAID YES AND PROVDED [SIC] THE LTR. LTR FROM METROPOLITAN TORONTO POLICE DATED 11SEPT98. STATES "...HAVE DETERMINED THAT YOU DO NOT MEET ONE OF THE MINIMUM REQUIREMENTS FOR THIS POSITION WHICH IS, BE A CANADIAN CITIZEN OR PERMANENT RESIDENT OF CANADA..." CONTINUES BY STATING, IF CANADIAN LANDED IMMIGRANT OR CDN CITZ IN FUTURE, CONTACT THE RECRUITING OFFICE. |
| THIS LTR DOES NOT/NOT INDICATED THAT IF HE BECOMES LANDED IMMIGRANT HE WOULD BY HIRED, IT MERELE [SIC] STATES HE IS ELEGIBLE [SIC] TO CONTACT RECRUITING DEPT AND IS ABLE TO MAKE APPLICATION. NO STATEMENT INDICATING HE WOULD BE HIRED OR THAT HIS PROBABILITY OF BEING HIRED IS ASSURED. |
. . .
[8] The letter in question reads in full:
| We have reviewed your application for the position of police constable and have determined that you do not meet one of the minimum requirements for this position which is, be a Canadian citizen or permanent resident of Canada. This requirement is highlighted in green, on page two of the enclosed information package titled, Policing in Ontario Application Resource Sheet, under the section, "What it takes to become a Police Constable". |
| If you obtain Canadian Landed Immigrant or Canadian Citizenship status in the near future, please do not hesitate to contact our recruiting police constable Fernando Ham-chi, badge #431, at telephone number (416) 808-7163. |
| Thank you for your interest in the Toronto Police Service. |
[9] The visa officer's CAIPs notes indicate that she then explained to the applicant that there was no demand for police constables, that he did not have arranged employment, and therefore, she was unable to award him sufficient units of assessment to lead to the granting of a visa. The visa officer's CAIPs notes and her affidavit both indicate that the applicant, then, asked the visa officer to exercise positive discretion pursuant to Regulation 11(3). In response to the visa officer's question as to the basis of the applicant's request for an exercise of positive discretion, the visa officer recorded that the applicant stated that he wanted a new life for his family, in a safe place, and he had heard that the Canadian government requires Chinese speaking police constables to help with crime investigations.
[10] In his affidavit, the applicant described the information he gave to the visa officer concerning the demand in Canada for Chinese speaking police officers (in both Toronto and York). He states that he told the visa officer he had received a long distance telephone call in Hong Kong, from Constable Fernando of the Metropolitan Toronto Police, in relation to his application. He states that he had been informed by his counsel, Mr. Mak, that the police normally do not make such international telephone calls unless they are extremely interested in an applicant. The visa officer denies that any statement was made to her describing a telephone call from a Constable Fernando.
[11] The visa officer issued a refusal letter. It reads in part:
| You have obtained insufficient units of assessment to qualify for immigration to Canada. In addition, should you have obtained sufficient units, there is no demand for police constables in Canada at the present time and your application must also be refused because of 00 demand. You requested positive discretion for you application, but based on the documents and information provided there appeared to be no basis for such discretionary action. |
[12] There is no reason to doubt the visa officer's assertion that no information was provided to her concerning an alleged telephone call, and in any event, even if it had been provided, it seems unlikely that it would have been sufficient to lead to a different decision. If the applicant wished to rely on any such communication, it would have been reasonable for him to have obtained a confirmation of the Toronto Police Force's interest, in writing.
[13] Counsel for the applicant argues that the visa officer fettered her discretion because she gave too much weight to the fact that the occupational demand for police constables led to an award of zero points, and to the fact that the applicant did not have a firm job offer. He argues that the applicant was treated unfairly because the visa officer did not inquire as to whether there was an actual demand for Chinese speaking officers.
[14] I am not persuaded that the visa officer's decision was unreasonable. The emphasis on whether or not the applicant had a firm job offer is reasonable in the light of Regulation 11(2). If the applicant had had a firm job offer, which was classified as "arranged employment", that would annul the effect of the zero points assessment for occupational demand. Also, the burden is on the applicant to provide the visa officer with "good reasons" for concluding that he and his family's chances of becoming successfully established in Canada were greater than as reflected by the units of assessment he had been awarded. The evidence presented with respect to his employment opportunities was inchoate and speculative.
[15] If one is seeking an exercise of positive discretion pursuant to Regulation 11(3), on the ground that one's chances of successfully establishing in Canada are greater than reflected in the points assessment, and this is because one's chances of obtaining employment are greater than that assessment indicates, it is not unreasonable to expect some written communication from potential employers in Canada supporting that contention. That is, in this case, it is not unreasonable to expect to find some written communication, from one or other of the relevant police forces, indicating that the only reason a firm job offer was not being made to the applicant was because the applicant was not a Canadian citizen or a landed immigrant, or at the least, indicating that if he had such status he would likely be given employment. As noted, the letter he received was little more than an acknowledgement letter, and his assertions that he had been telephoned were not supported by any written communication.
[16] It is the applicant's responsibility to make his case to the visa officer as to why discretion should be exercised. The visa officer has no obligation to investigate the job market for him. As Mr. Justice Rothstein said in Lam v. Minister of Citizenship and Immigration (IMM-4458-97, August 25, 1998), "subsection 11(3) is exceptional". This does not mean that an applicant is required to present "extraordinary" evidence; all that is required are "good reasons", see Kwong v. Minister of Citizenship and Immigration (IMM-4955-98, September 7, 1999.
[17] The exercise of discretion is nonetheless exceptional in the sense described by Mr. Justice Evans in Chen v. Canada (Minister of Citizenship and Immigration) (IMM-2225-98, April 16, 1999) and Lu v. Canada (Minister of Citizenship and Immigration) (IMM-643-98, April 16, 1999). It is residual in nature, to be exercised in cases that present unusual facts, on where the applicant has come close to obtaining 70 units of assessment.
[18] As noted in the Chen and Lu cases, the purpose of the points assessment selection system is to reduce potentially arbitrary and inconsistent exercises of discretion by visa officers. It is designed to create a system that attempts to treat applicants with some semblance of equality. Paragraph 24 of the Chen decision reads:
| The primary tool for determining the issue of visas to independent immigrants is an evaluation of the factors listed in Schedule I, which subsection 8(1) of the Regulations requires visa officers to use in determining whether an applicant is likely to become successfully established in Canada. One of the objectives of the statutory scheme established for assessing visa applications is to encourage consistency in decision-making and to reduce the exercise of unstructured and potentially arbitrary discretion by visa officers that would likely result if officers were permitted, without more specific statutory regulation, to base decisions on their own assessment of an applicant"s chances of successful establishment. |
[19] Regulation 11(3) discretion, then, is exceptional in the sense that it allows the issuance of a visa to a person who has not obtained the normal number of units of assessment. An applicant who seeks the exercise of such discretion has the burden of demonstrating that there are good reasons to support that exercise.
[20] The visa officer"s decision that the applicant had not done so in this case was a reasonable decision.
[21] For the reasons given this application for judicial review will be dismissed.
"B. Reed"
J.F.C.C.
Toronto, Ontario
July 19, 2000