Date: 20031029
Docket: IMM-5360-01
Citation: 2003 FC 1261
OTTAWA, ONTARIO, THE 29TH DAY OF OCTOBER 2003
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
NGOC-TRANG THI TRUONG
(Also known as TRUONG THI NGOC TRANG)
Applicant
and
MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ngoc-Trang Thi Truong (the "applicant"), launched this judicial review application challenging the August 16, 2001 decision of Visa Officer Mick Chong (the "visa officer") of the Canadian High Commission in Singapore who denied her application for permanent residence in Canada notwithstanding the presence of a close relative in this country and an approved job offer under the Family Business Job Offer to Relatives Guidelines.
[2] The applicant was born in Vietnam and was 18 years old at the time of her application for permanent residence in Canada as an assisted relative in the category of dressmaker.
[3] Her aunt operates a fabric business in Ontario. On August 29, 2000, subject to the approval of Citizenship and Immigration Canada ("CIC"), she offered her niece employment as a seamstress at her business.
[4] In the approval under the family business program, in answer to the question "[A]spects of job offer which make a relative a logical & common sense choice (i.e. trust, close relationship, travelling, long working hours, responsibility) CIC writes:
Business owner states that Trust is important - since this business is presently located in her home - also minimum wages & tedious low paying job - also long hours due to overtime often required - Owner is planning on expanding her business if her nieces are successful & then the business will be located in a commercial building which she plans to lease.
[5] The visa officer, pursuant to subsections 8(1) and 10(1) of the now repealed Immigration Regulations, 1978, (the "Regulations") assessed the applicant on the basis of the factors outlined in schedule I of those Regulations, namely, the factors of age, occupational demand, education and training, experience, arranged employment, demographics, education, knowledge of French and English, and personal suitability. He awarded her 34 points, the minimum requirement being 65 units. In the 34 points awarded, 10 were on account of the arranged employment criteria.
[6] The visa officer added the following paragraph to his refusal letter:
Your application was considered on the basis of a Family Business Job Offer (FBJO) approved by the Canada Immigration Centre in Hamilton, Ontario, on 05 February 2001. Under the provisions of the FBJO program, a visa officer is required to assess whether "the prospective immigrant has in his work experience and aptitudes sufficient abilities to indicate he could successfully fulfil the position being offered". Despite having been awarded full experience points, you were unable to meet the minimum 65 units required.
[7] During the hearing of the application, it became clear counsel for the applicant was not challenging the visa officer's units award nor was he arguing the Family Business Job Offer to Relatives Guidelines overrode or trumped the points system prescribed in the Regulations.
[8] Rather, the thrust of his argument was the visa officer did not consider or take into account the several factors present in the applicant's case and background as well as in the job offer which, if those factors had been weighed, would have led to a positive exercise of his discretion to approve the applicant's application for permanent residence notwithstanding she did not meet the minimum number of units stipulated in the Regulations.
[9] In this context, the central issue in this case is whether, in rejecting the applicant's application for permanent residence to Canada, the visa officer exercised his discretion under subsection 11(3) of the former Regulations and, if he did not exercise that discretion, was he obliged to do so.
[10] Subsection 11(3) of the repealed Regulations stipulates a visa officer may issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required [by the Regulations] 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.
[11] I have no hesitation in concluding, from my reading of the visa officer's decision and his affidavit filed in this proceeding, he did not exercise the discretion conferred upon him pursuant to subsection 11(3) of the former Regulations.
[12] As to whether the visa officer was obliged to consider exercising his discretion, the jurisprudence of this Court is clear he was not obligated to do so because he was never asked by the applicant or her sponsor to do so and did not provide the visa officer any reasons why the number of units assessed did not reflect the applicant's chances of becoming successfully established in Canada.
[13] I rely upon the decision of Justice Rothstein, then of the Trial Division, in Lam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239, where he said this at paragraph 6 of his reasons for judgment:
Where an applicant has reason to believe that he or she may be successfully established in Canada, irrespective of the units of assessment determination, he or she should apply for a determination under subsection 11(3) setting forth relevant reasons. Otherwise, while the visa officer may do so on his or her own volition, there is no obligation on the visa officer to exercise a discretion under subsection 11(3). As indicated, there was no application by the applicant for the exercise of discretion by the visa officer under subsection 11(3) in this case.
[14] Furthermore, I rely upon Justice Martineau's recent decision in Ataullah v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1193, where he stated:
¶ 18 It is incumbent on the applicant to apply for determination under subsection 11(3). In so doing, the applicant should provide reasons why the units of assessment would not reflect his or her chances of successful establishment in Canada.
[15] In the case before me, there is no indication in the record the applicant, or her aunt, applied to the visa officer for the exercise of his subsection 11(3) discretion. Counsel for the applicant suggested I could infer such a request from the underlying facts about the applicant and what her aunt had written to obtain approval from CIC. I am not prepared to make any such inference because such an inference would not reasonably be supported by the evidence.
[16] Furthermore, I agree with counsel for the respondent the applicant's reliance on Siddiqui v. Canada (M.C.I.), [1997] F.C.J. No. 1236, is misplaced. Siddiqui, supra, was not decided under section 11(3) but under 11(1)(a) which involves different considerations.
[17] In the circumstances, I conclude the visa officer was under no obligation to exercise his positive discretion.
ORDER
This judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
J U D G E
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5360-01
STYLE OF CAUSE: NGOC-TRANG THI TRUONG v. MCI
PLACE OF HEARING: Toronto, Ontraio
DATE OF HEARING: October 23, 2003
REASONS FOR ORDER: Lemieux J.
DATED: October 29, 2003
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor |
FOR THE APPLICANT |
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Toronto, Ontario |
FOR THE RESPONDENT |