Date: 19990416
Docket: IMM-2225-98
BETWEEN:
HANQING CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
| A. INTRODUCTION |
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 [as amended] in which Hanqing Chen ("the applicant") requests the Court to review and, among other things, set aside a decision of a Foreign Service Officer ("the visa officer") dated March 26, 1998 refusing to issue to him a visa for permanent residence in Canada.
| B. FACTUAL BACKGROUND |
[2] The applicant is a 34 year old man and a citizen of the People"s Republic of China, where he lived until 1991. He obtained a secondary school diploma in 1983, and in 1984 successfully completed a one-year vocational program at the Fuzhou Civic Cook General School. He then worked in restaurants in China until 1990, and since 1991 he has been a chef - a term that I use here without any technical connotation - in Chinese restaurants in the United States.
[3] In April 1997 Mr. Chen filed an application for a visa to be admitted to Canada as an independent immigrant. He stated that his intended occupation in Canada was head chef. The application was received by the Regional Program Centre ("RPC"), which in August 1997 advised the applicant that the "paper screening" stage of the process would be completed in twelve weeks" time: that is, a determination would be made within that period to grant or refuse a visa, or to refer the file on so that the applicant could be interviewed by a visa officer.
[4] The RPC is an administrative unit located in the Canadian Consulate General in Buffalo, and acts as the clearing house for visa applications that are to be processed by Canadian visa officers in the United States. If it is decided that a final decision cannot be made until the applicant has been interviewed, the file is sent to a visa post and, whenever possible, to the post at which the applicant has expressed a preference to be interviewed. Mr. Chen had designated Detroit as his preferred processing post.
[5] When the application was referred to the visa officer in October 1997 it was assessed by reference to the intended occupation of chef and specialist chef as described in the National Occupational Classification ("the NOC"). The application was refused in a letter dated March 4, 1998.
[6] However, Mr. Leahy, counsel for the applicant, pointed out to the visa officer that since the visa application had been filed before May 1, 1997 it should have been assessed first by reference to the Canadian Classification and Dictionary of Occupations ("the CCDO"), where the relevant category of intended occupation was head chef. Accordingly, the visa officer reassessed the application as requested. But since she awarded Mr. Chen a total of only 49 units of assessment, she refused his application without an interview. This refusal is the subject of the application for judicial review.
| C. ISSUES AND ANALYSIS |
| Issue 1: Did the visa officer have jurisdiction to determine the applicant"s visa application? |
[7] Counsel for the applicant advanced two arguments to support his contention that the refusal of the visa should be quashed because it was not within the visa officer"s jurisdiction. First, the visa officer exceeded her jurisdiction by determining the application more than twelve weeks after it was filed, contrary to the advice given to the applicant in the standard-form acknowledgement of receipt of his application for permanent residence in Canada that was sent out by the RPC in Buffalo.
[8] In my view, even if soundly based on the facts, which I do not need to decide, this argument has no merit in law. In the absence of prejudice to the person concerned, failure to observe a statutory time limit within which a decision must be made does not usually invalidate a decision made outside that period: see, for example, Metropolitan Toronto Board of Police Commissioners v. Metropolitan Toronto Police Association (Unit B) (1973), 37 D.L.R. (3d) 487 (Ont. Div. Ct.). In view of this, it would be highly anomalous if a visa officer's failure to comply with a non-statutory time period were to invalidate the refusal to issue the visa.
[9] Nor does the doctrine of legitimate expectation strengthen the applicant"s case. It has been held that the only function of this doctrine in Canada is to create a right to a hearing which the duty of fairness might otherwise not have conferred, or to increase the procedural rights to which an individual is entitled, over and beyond those that the duty of fairness would otherwise have provided: see, for example, Reference re Canada Assistance Plan, [1991] 2 S.C.R. 525; Old St. Boniface Residents Association Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, 1204.
[10] The applicant"s second jurisdictional argument was that the creation of the RPC was unsupported by any legal authority, and that the applicant was entitled to have his application determined at the post that he designated when he filed his visa application. I find this argument equally without merit because it assumes that every administrative action requires discrete legal authorization. This is not true of administrative action that has no legal consequences for individuals, nor adversely affects their legal rights or interests. The internal arrangements made for the processing of visa applications are within the discretion of the Minister. Moreover, as Mr. Leahy observed, subsection 115(b ) of the Immigration Act, R.S.C. 1985, c. I-2 [as amended] empowers the Minister by order to designate immigration stations for the purpose of the Act.
[11] Visa applicants have no statutory right to have their application processed at any particular post. Naturally, efforts will be made to ensure that applicants are interviewed at the post most convenient for them, so they do not have to travel further than is necessary. The fact that applicants are asked on the application form to designate the post at which they would prefer their application to be processed, and that a fee is charged for processing visa applications, do not create any contractual right in an applicant to have the application processed at the designated post.
| Issue 2: Did the visa officer err in law in failing to consider the exercise of discretion conferred by subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172 [as amended] ("the Regulations")? |
[12] Subsection 11(3) provides that a visa officer may issue an immigrant visa to an applicant, even though she or he has not been awarded the statutorily required units of assessment
| 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. |
| 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. |
[13] It is clear from the notes that the visa officer entered into the computer system that she did consider whether to exercise her discretion pursuant to subsection 11(3) in favour of Mr. Chen. However, she obviously concluded that the facts did not justify deviating from the negative decision indicated by the award to the applicant of only 49 units of assessment on the basis of the Factors contained in Schedule I of the Regulations, to which visa officers are bound by statute to have resort when evaluating applications: subsection 8(1) of the Regulations. 60 units of assessment are normally required before a person who is applying in the same category as Mr. Chen is referred for an interview, and 70 for the issue of a visa: paragraphs 11.1(a)(i), and 9(1)(a).
[14] The applicant"s contention is that it was unreasonable for the officer not to have exercised her statutory discretion in favour of the applicant in view of the clear evidence in the material before her of his ability to become successfully established in Canada in the sense of being economically self-sufficient. In particular, counsel noted that the applicant had been employed in the United States since 1991 in his intended occupation, that he is earning an annual salary of $49,000, has accumulated savings of $31,000 and owns a property in China worth $52,000.
[15] Mr. Leahy acknowledged that evidence of self-sufficiency in an applicant"s country of origin will not in itself trigger the exercise of positive discretion under subsection 11(3). However, he maintained, when applicants have left their country of origin, and demonstrated that they can be economically self-sufficient pursuing their intended occupation in an economic and social environment similar to that of Canada, this should weigh heavily in favour of the issue of a visa to applicants whose units of assessment would not otherwise result in a favourable decision.
[16] To support his argument counsel relied on three cases in which it was held that a visa officer"s assessment of applicants' personal suitability was unreasonable because insufficient weight had been given to the fact that they had been established in Canada for several years prior to the refusal of a visa: So v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 153 (F.C.T.D.); Chand v. Canada (Minister of Citizenship and Immigration) (1998), 41 Imm. L.R. (2d) 165 (F.C.T.D.); Mui v. Canada (Minister of Citizenship and Immigration), (1998) 146 F.T.R. 51 (F.C.T.D.).
[17] Three points should be made about these cases, which in my opinion reduce their relevance to the case before me. First, in these cases the applicants had all lived in Canada for several years; in contrast, Mr. Chen has been living in the United States. Despite the broad similarities between the economic and social circumstances of Canada and the United States, it does not necessarily follow that the applicant will be as successful in Canada as he appears to have been in the United States.
[18] Second, these cases concerned the assessment of the applicants" personal suitability, one of the factors listed in the Schedule I of the Regulations that must be assessed at an interview. In the present case, however, the applicant did not get as far as an interview, but is invoking the residual and much less structured discretion conferred by subsection 11(3).
[19] Third, since statutory discretion must be exercised in light of the particular facts of a given case, and there are invariably significant factual differences among cases, it is difficult to infer from the way that discretion was exercised in one case that as a matter of law it should be exercised in the same way in another.
[20] In my opinion, the fact that the applicant has been economically self-sufficient in the United States while working at the occupation that he intends to pursue in Canada is a relevant factor that a visa officer ought to take into account when considering whether an applicant"s ability to become successfully established in Canada is adequately reflected by the units of assessment awarded on the basis of the factors listed in Schedule I.
[21] However, it is not a function of this Court to determine whether the visa officer has given sufficient weight to this consideration. This is a matter for the exercise of the statutory discretion entrusted to the visa officer in light of the complete file, including how close the applicant is to obtaining the normally required number of units of assessment. Only if the visa officer's exercise of discretion can be characterized as arbitrary or capricious or otherwise unreasonable should the Court intervene.
[22] The applicant"s contention that the officer gave unreasonably little weight to the evidence of the applicant"s self-sufficiency depended upon a view that the selection of independent immigrants is ultimately a question of determining whether they will be self-sufficient in Canada. Therefore, a history of self-sufficiency in the United States should be given a great deal of weight so as to make such applicants prima facie entitled to a visa, or at least to an interview.
[23] I do not agree. Without trespassing on the discretion conferred upon visa officers by subsection 11(3), I would have thought that the discretion in question is residual in nature, and should be decisive only in cases that present unusual facts, or where the applicant has come close to obtaining 70 units of assessment.
[24] 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.
[25] To return to the facts of the case at bar, Mr. Chen fell a long way short of obtaining the number of units of assessment required for an interview, let alone the issue of a visa. On the evidence before me, I am not persuaded that the visa officer"s decision not to exercise a positive discretion under subsection 11(3) was unreasonable.
| Issue 3: Did the visa officer err in law when she awarded only 10 units of assessment, rather than 13, for the Education Factor in Schedule I? |
[26] The Education Factor contained in Schedule I of the Regulations provides that 10 units of assessment are to be awarded to an applicant who has graduated from a secondary school with a diploma that might lead to entrance to a university. An applicant who has also successfully completed a vocational program for which this type of high school diploma is a pre-requisite is awarded an additional 3 units of assessment.
[27] The applicant submitted his secondary school and cooking school diplomas as required by the checklist contained in the visa application package sent out by Immigration Canada. The visa officer stated that, although the applicant had not provided evidence that his secondary school graduation diploma made him eligible to be admitted to a university, she would give him the benefit of the doubt. Consequently, she awarded him 10 units of assessment. However, since he had not provided evidence that admission to the one year program at the Fuzhou cooking school required the possession of such a diploma, she did not award him the additional 3 units of assessment.
[28] Although applicants have the burden of establishing that they are qualified to be issued with a visa, I agree with Mr. Leahy that it was unfair to refuse to award the extra 3 units of assessment for the applicant"s successful completion of the cooking school program simply because Mr. Chen had not provided documentation that was not included in the checklist. Before denying him the additional units of assessment on this ground, the visa officer should first have advised the applicant of her concern, and invited him to provide the evidence required.
[29] It is unreasonable to expect applicants to be so familiar with the intricacies of the statutory framework governing immigration that they should provide information about their education, over and above that specified in the checklist. Accordingly, on the facts of this case, the failure of the visa officer to alert the applicant to the nature of her concerns, and afford him an opportunity to supply the additional information, was a breach of the duty of fairness.
[30] However, this procedural deficiency does not justify the quashing of the refusal to issue the visa because it could have made no difference to the decision. An extra 3 units of assessment still leave the applicant a long way short of the 60 points needed to obtain even an interview.
| Issue 4: Did the visa officer err in law in refusing to assess the applicant"s work experience because he did not have the formal training for the occupation of head chef prescribed for the Special Vocational Preparation ("SVP") Factor in Schedule I? |
[31] When assessing the applicant under the CCDO, the visa officer concluded that Mr. Chen did not satisfy the training requirements prescribed for the occupation of head chef. She treated this factor as a threshold that applicants must cross before their experience in the intended occupation in Canada can be assessed. She found that Mr. Chen had not had the four years of formal training required for an occupation, such as head chef, to which 18 SVP units are to be awarded, nor had he provided evidence of on-the-job training.
[32] The argument advanced by counsel for the applicant was that the officer had, in effect, put the cart before the horse. That is, she should first have assessed the experience that Mr. Chen had had as a head chef, and if satisfied that he had the requisite experience, she should automatically have awarded him the 18 units of assessment for SVP assigned to the occupation of head chef by the CCDO. In other words, he argued, units awarded for SVP are simply a function of the occupation in which the applicant has experience, and not an evaluation of the vocational preparation of the particular applicant.
[33] Mr. Leahy relied on Lee v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm. L.R. (2d) 222 (F.C.T.D.), in which it was stated that the visa officer in that case had attached too much weight to the applicant"s lack of formal training for the job of legal secretary when in fact she had been working as a legal secretary in Canada for several years. Counsel"s argument was that the SVP may be important when the individual has no or little experience in the occupation, but should be accorded much less significance when the applicant has experience in the intended occupation in Canada, or a country with comparable social and economic conditions.
[34] In my view, the visa officer did not err in law in her approach to the assessment of the SVP. The rationale for evaluating applicants under this Factor is to enable an assessment to be made of whether they have the kind of qualifications that are normally regarded by employers in Canada as necessary for the occupation in question. A person with these qualifications is less likely to be rejected by prospective employers on the ground of no "Canadian experience or its equivalent". And, as Mr. Leahy has already argued in this case, the statutory provisions should be interpreted with a view to assessing the likelihood of an applicant"s becoming successfully established in Canada.
[35] Moreover, the case of Lee, supra is distinguishable, because in that case the Court found that the visa officer had no legal authority to impose the formal training requirements in question. The Court stated (at 222):
| There is nothing in the guidelines of the Canadian Classification and Dictionary of Occupations (CCDO) with respect to legal secretaries which contemplates any such training requirements. |
This is not the position with respect to the occupation of head chef.
| Issue 5: Did the visa officer err in law in calculating the units of assessment to be awarded to the applicant under the Education and Training Factor ("ETF") in the NOC by basing her decision on computer generated data? |
[36] After finding that the applicant had insufficient units when assessed under the CCDO, the visa officer then considered Mr. Chen's application by reference to the NOC in the category of chef and specialist chef. The ETF is the equivalent in the NOC of the SVP Factor under the CCDO. The officer calculated the units to be awarded under this Factor by looking at the Education and Training Index ("ETI") in the NOC for the relevant occupation, and then converting the ETI value into ETF units of assessment by using computer generated data.
[37] It is important to note here that, like the CCDO, the NOC was not designed for the purpose of assessing applicants for immigrant visas, but was primarily intended to provide career information for people in Canada. The value assigned by the ETI for chefs and specialist chefs is "4+". The computer generated data used by visas officers to translate ETI values into ETF units of assessment assigns 7 ETF units to a "4" on the ETI, and 15 ETF units to a "5" on the ETI. The computer generated data assigned 7 units of assessment under the ETF to an ETI value of "4+".
[38] The argument advanced by counsel for the applicant was that, in relying on the computer generated data to calculate the ETF units of assessment, the visa officer unlawfully fettered her discretion. He argued that, since "4+" was obviously more than a "4", but less than a "5" which would have resulted in the award of 15 units of assessment under the ETF, the officer ought to have assessed the actual education and training of the applicant in order to award an appropriate number. This should have been somewhere between the 7 ETF units that are awarded to an ETI value of "4" and the 15 ETF units that are awarded to an ETI value of "5".
[39] I am not satisfied that the visa officer erred in law in following the methodology established by Immigration Canada for enabling visa officers to make these calculations. As Mr. Lunney, counsel for the respondent, pointed out, there is no evidence to indicate what "4+" means. Converting ETI values into ETF units of assessment is an exercise of a technical nature and, in the absence of evidence of bad faith or an abuse of discretion, involves no questions of law.
[40] For these reasons, the application for judicial review is dismissed. Since I was not satisfied that either of the questions proposed by Mr. Leahy met the statutory criteria under subsection 83(1) of the Immigration Act of being "a serious question of general importance", I have not certified a question for appeal.
TORONTO, ONTARIO "John M. Evans"
April16, 1999. J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2225-98 |
| STYLE OF CAUSE: HANQING CHEN |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: THURSDAY, JANUARY 28, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| DRAFT REASONS FOR ORDER BY: EVANS J. |
DATED: FRIDAY, APRIL 16, 1999
APPEARANCES: Mr. Timothy Leahy
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD: Timothy Leahy
Barrister & Solicitor
408-5075 Yonge Street
Toronto, Ontario
M2N 6C6
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990416
Docket: IMM-2225-98
Between:
| HANQING CHEN |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER