Date: 20040429
Docket: IMM-3376-02
Citation: 2004 FC 634
Ottawa, Ontario, this 29th day of April, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ABDULRAHEEM YAHIA BAHRO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of a visa officer at the Canadian High Commission in London, England, dated May 7, 2002 wherein the visa officer refused to grant permanent resident status to the applicant in the independent category of dental technician.
[2] The applicant seeks:
1. an order allowing this application;
2. an order for a writ of certiorari quashing the decision of the visa officer that refused the applicant permanent resident status in Canada;
3. an order for a writ of mandamus directing that the respondent grant permanent resident status to the applicant; and
4. such other relief as this Honourable Court may deem just and equitable in the circumstances.
Background
[3] The applicant is a citizen of Syria, who has a diploma in and work experience as a dental technician. The applicant's wife and one of his daughters are Canadian citizens. The applicant seeks permanent resident status for himself and his eldest daughter.
[4] The applicant's visa application was received at the Canadian High Commission in London, England on January 2, 2001. The applicant was interviewed by a visa officer at the Canadian Embassy in Riyadh, Saudi Arabia on March 2, 2002. The visa officer informed the applicant during his interview and by letter dated May 7, 2002 that his application was refused.
[5] The applicant was assessed under the Immigration Regulations, 1978, S.O.R./78-172 (the "Regulations") based on the occupation of Dental Technician, National Occupational Classification (NOC) 3223.0. The applicant received the following units of assessment:
|
Age |
10 |
|
Occupational Factor |
01 |
|
Specific Vocational Preparation/ Education and Training Factor |
15 |
|
Experience |
06 |
|
Arranged Employment |
00 |
|
Demographic Factor |
08 |
|
Education |
13 |
|
English |
06 |
|
French |
00 |
|
Bonus (Close Relative in Canada) |
00 |
|
Personal Suitability |
05 |
|
TOTAL |
64 |
[6] The visa officer's refusal letter stated:
You have obtained insufficient units of assessment in this occupation to qualify for immigration to Canada. I was unable to award you any Bonus Points for your relative in Canada because your Uncle is currently residing and working in Saudi Arabia.
. . . You do not meet the requirements of the Act and regulations, as stated above and your application is therefore refused.
[7] This is the judicial review of the visa officer's decision.
Applicant's Submissions
[8] The applicant disputes the assessment points awarded by the visa officer on two grounds. First, he submits that he is an "assisted relative" entitled to the kinship bonus of five points on the basis that his uncle, Badreldin Bahrou, is a Canadian citizen resident in Canada. Second, the applicant submits that the visa officer did not take into account all the relevant factors when assigning him only five out of a possible ten assessment points for personal suitability.
[9] The applicant submits that the visa officer erred in fact and law by refusing to award him the kinship bonus. The applicant recalls that during his interview, the visa officer asked him whether he had any friends or relatives in Canada. The applicant states that he told the visa officer he had friends in Canada and an uncle, Badreldin Bahrou, who is a resident of Canada engaged in a dental service and supply business. The applicant recalls telling the visa officer that his uncle sometimes travels to Saudi Arabia on business trips but is based and resident in Canada. The applicant states that the visa officer asked no further questions about his uncle, and that the interview only lasted a total of ten to fifteen minutes.
[10] The applicant relies on the affidavit of his uncle, Badreldin Bahrou, wherein he confirms his residence in Canada since landing as a permanent resident in 1994. He obtained Canadian citizenship in 1998. Badreldin Bahrou states that although his dental business and educational studies require him to travel to France and Saudi Arabia, he has never given up his home or residence in Canada or his intention to reside in Canada.
[11] The applicant submits that the visa officer did not explore the situation of the applicant's uncle in sufficient depth to make a determination as to whether or not he had at any time ceased to reside in Canada.
[12] The applicant further submits that the visa officer fettered his discretion by concluding on the basis of the applicant's brief statements about his uncle's travels and activities that the applicant's uncle did not reside in Canada. This determination, argues the applicant, was made in a cursory and arbitrary manner without sufficient information and without allowing the applicant the opportunity to provide sufficient additional relevant information.
[13] The applicant submits that the visa officer erred by failing to explore the factual situation of the applicant's uncle any further, or to discuss with the applicant the meaning of residence within the definition of "assisted relative" in subsection 2(1) of the Regulations.
[14] In relation to the units of assessment awarded for personal suitability, the applicant submits that the visa officer erred in not awarding at least the one additional point which would have allowed his application to succeed.
[15] The applicant submits that although the visa officer, in his affidavit, lists the factors to be taken into account when assessing personal suitability, he did not properly assess all of the criteria in relation to the applicant. The applicant submits that it was unfair for the visa officer to focus only on whether the applicant had made employment inquiries and contacts in Canada and ignore the applicant's specialized education/ experience, that his Canadian uncle is engaged in a related business, that he has friends in Canada, and that his wife and one of his daughters are Canadian citizens. These factors, in the applicant's view, warrant a personal suitability score of at least six out of ten assessment units.
[16] Finally, the applicant submits that in all the circumstances, the visa officer should have exercised his positive discretion to allow the application pursuant to subsection 11(3) of the Immigration Act, R.S.C. 1985, c. I-2.
Respondent's Submissions
[17] The respondent submits that the visa officer did not make a reviewable error in rejecting the applicant's permanent residence application.
[18] The affidavit of the visa officer, upon which the respondent relies, contradicts the applicant's account of the March 2, 2002 interview. According to the visa officer and his computer-assisted immigration processing system ("CAIPS") notes, the applicant stated that his uncle was residing and working as a dentist in Saudi Arabia and that he had no relatives in Canada. The visa officer states he explained to the applicant that he did not quality for the assisted relative bonus assessment units.
[19] The respondent contends that the onus was on the applicant to put his "best foot forward" by placing before the visa officer all the information necessary to demonstrate that he satisfies the legislation's selection criteria. This, the respondent submits, the applicant failed to do. None of the documents pertaining to the applicant's uncle, which were submitted to this Court as exhibits to the affidavit of Badreldin Bahrou, were part of the applicant's application for permanent residence or presented to the visa officer at the March 2, 2002 interview.
[20] Relying on Sadeghi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 337 (C.A.), the respondent argues that if more or better evidence was available to establish that the applicant's uncle resided in Canada, then the onus was on the applicant to produce it to the visa officer.
[21] The respondent submits that the visa officer did not make a perverse or capricious determination or fail to consider the evidence before him in assigning five points for the applicant's personal suitability. Relying on Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1080 (T.D.) (QL) and Zhang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 130 (T.D.) (QL), the respondent submits that the assessment of personal suitability is a discretionary decision entirely within the visa officer's scope of expertise which is entitled to significant deference.
[22] As outlined in Schedule I to the Regulations, personal suitability takes into account factors such as motivation, adaptability, resourcefulness, initiative and other similar qualities.
[23] The respondent submits that the factors pointed to by the applicant are not relevant to the personal suitability category. Regardless of the applicant's specialized work experience, he had not contacted prospective employers or dental associations in Canada, the applicant's uncle was in Saudi Arabia so could not be a positive factor, and the applicant offers no clear explanation how the Canadian citizenship of his wife and one of his daughters warrants more than five units of assessment in this category. The respondent submits that the applicant has not established any basis to overturn the visa officer's assessment of personal suitability.
[24] Finally, relying on Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316, the respondent argues the visa officer was under no obligation to exercise his positive discretion under subsection 11(3) of the Regulations, which allows an application to be approved irrespective of the units of assessment determination. Since the applicant made no application for a determination under subsection 11(3), the respondent submits the visa officer did not err in not making a subsection 11(3) determination.
[25] The respondent requests that this application for judicial review be dismissed with costs.
Issues
[26] The issues are:
1. Did the visa officer err by refusing to award the applicant the assisted relative bonus?
2. Did the visa officer err in his duties of fairness by awarding the applicant only five points for the personal suitability factor?
3. Did the visa officer err by failing or refusing to exercise his discretion pursuant to subsection 11(3) of the Immigration Regulations, 1978, supra, to allow the applicant to immigrate notwithstanding the units of assessment determination?
Relevant Statutory Provisions and Regulations
[27] The Immigration Act, R.S.C. 1985, c. I-2 states:
|
6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations.
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure.
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
[28] The Immigration Regulations, 1978, S.O.R./78-172 provide:
|
2(1) In these Regulations,
. . .
"assisted relative" means a relative, other than a member of the family class, who is an immigrant and is an uncle or aunt, a brother or sister, a son or daughter, a nephew or niece or a grandson or granddaughter of a Canadian citizen or permanent resident who is at least 19 years of age and who resides in Canada;
8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant |
2. (1) Dans le présent règlement,
. . .
"parent aidé" Immigrant, autre qu'un parent, qui est soit l'oncle ou la tante, le frère ou la soeur, le fils ou la fille, le neveu ou la nièce ou le petit-fils ou la petite-fille d'un citoyen canadien ou d'un résident permanent âgé d'au moins 19 ans qui réside au Canada.
8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint:
|
|
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
. . .
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in Column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor.
9. (1) Subject to subsection (1.01) and section 11, where an immigrant, other than a member of the family class, an assisted relative, or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
(b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8, |
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
. . .
(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à-vis de ce facteur.
9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si:
a) l'immigrant et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; et
b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8:
|
|
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment,
. . .
10. (1) Subject to subsections (1.1) and (1.2) and section 11, where an assisted relative makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the assisted relative and accompanying dependants of the assisted relative if
. . .
(b) in the case of an assisted relative who intends to reside in a place other than the Province of Quebec, on the basis of an assessment made in accordance with section 8, the assisted relative is awarded at least 65 units of assessment; and . . .
11.(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
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 dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer. |
(i) dans le cas d'un immigrant, autre qu'un entrepreneur, un investisseur, ou un candidat d'une province, il obtient au moins 70 points d'appréciation,
. . .
10. (1) Sous réserve des paragraphes (1.1) et (1.2) et de l'article 11, lorsqu'un parent aidé présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'aux personnes à sa charge qui l'accompagnent si les conditions suivantes sont réunies:
. . .
b) dans le cas du parent aidé qui entend résider au Canada ailleurs qu'au Québec, sur la base de l'appréciation visée à l'article 8, le parent aidé obtient au moins 65 points d'appréciation; . . .
11.(3) L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier. |
Analysis and Decision
[29] Issue 1
Did the visa officer err by refusing to award the applicant the assisted relative bonus?
The applicant's uncle, a dentist, is a Canadian citizen. At the interview, the visa officer's CAIPS notes state that the applicant told him that his uncle was then in Saudi Arabia working as a dentist and that he did not have any relatives in Canada. On this judicial review application, both the applicant and his uncle filed affidavits. His uncle stated that his trips to Saudi Arabia and France were temporary and that he had not given up his Canadian citizenship or his intention to be a resident of Canada. The applicant in his affidavit, stated that he told the visa officer that he had an uncle in Canada and many friends. He stated that he also told the visa officer that his uncle's dental business takes him to Saudi Arabia on business trips.
[30] Both the applicant's affidavit and the affidavit of his uncle contain facts that were not before the visa officer. Facts contained in the affidavits that were not before the visa officer cannot be considered on this application (see: Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713 (T.D.) (QL) and Lemiecha et al v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R. 49).
[31] To the extent that the facts in the affidavits conflict with the CAIPS notes, I would prefer the CAIPS notes as they were made at the time of the interview. Consequently, I cannot find that the visa officer was in error in not awarding the applicant bonus points for the assisted relative category.
[32] Issue 2
Did the visa officer err in his duties of fairness by awarding the applicant only five points for the personal suitability factor?
The visa officer awarded the applicant five units of assessment for the personal suitability category. The visa officer stated that the applicant had not done much to prepare for his move to Canada in that he had not contacted any prospective employers or dental associations in Canada. The applicant states that he told the visa officer that he initially planned to find employment in a dental laboratory for experience and then eventually open his own dental laboratory.
[33] The jurisprudence is clear that the assessment of personal suitability is entirely within a visa officer's scope of expertise. This Court should not interfere with the conclusion unless it is perverse or capricious or unless the visa officer made an error of law (see Ali, supra). I am of the view that the visa officer's allotment of five units of assessment for personal suitability was a reasonable conclusion and the visa officer did not make a reviewable error in this respect.
[34] Issue 3
Did the visa officer err by failing or refusing to exercise his discretion pursuant to subsection 11(3) of the Immigration Regulations, 1978, supra, to allow the applicant to immigrate notwithstanding the units of assessment determination?
The applicant submits that the visa officer should have exercised his positive discretion to
allow the application pursuant to subsection 11(3) of the Regulations. A review of the law (see Lam, supra), establishes that should an applicant wish to avail himself or herself of subsection 11(3) of the Regulations, the applicant should ask for a determination under subsection 11(3), setting forth relevant reasons. There is no obligation on a visa officer to exercise their discretion under subsection 11(3).
[35] Since there is no evidence that the applicant requested a subsection 11(3) determination be made, I find that the visa officer did not make an error in this respect.
[36] The applicant's application for judicial review is therefore denied.
[37] Neither party wished to submit a serious question of general importance for my consideration for certification.
[38] There shall be no order as to costs.
ORDER
[39] IT IS ORDERED that:
1. The application for judicial review is dismissed.
2. There shall be no order as to costs.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
April 29, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3376-02
STYLE OF CAUSE: ABDULRAHEEM YAHIA BAHRO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 8, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Ms. Winnie Lee
FOR APPLICANT
Ms. Mielka Visnic
FOR RESPONDENT
SOLICITORS OF RECORD:
Baker & Associates
North York, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT