Date: 19990730
Docket: IMM-3766-98
BETWEEN:
| SONG ZHAO |
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant is a citizen of China. Since 1996, he has worked in Mississauga, Ontario, under an employment authorization, for the Canadian subsidiary of a Chinese corporation. Both companies are engaged in the development of real estate and in the international trade of agricultural products. The applicant is the senior financial manager of the Canadian subsidiary, which was incorporated in late 1995. The parent company is the largest shareholder in the China Zhengshou Commodity Exchange, for whom the applicant worked from 1994 until his transfer to Canada.
[2] In August 1997, the applicant applied for permanent residence as an independent immigrant under the intended occupation of Financial Manager (NOC 0111). His application was processed from the Canadian consulate in Buffalo, New York.
[3] In his letter of March 1998, the visa officer expressed to the applicant his serious concern that he did not have the experience required for Financial Manager. As requested, the applicant submitted further letters of reference from his Canadian employer, from a former employer in China and from a Chinese institute where he had been an instructor.
[4] While the CAIPS notes suggest that the visa officer had some ongoing concerns with respect to the real nature of the applicant"s employment and the true extent of his employer"s activities in Canada, he nonetheless assessed his application under Financial Manager (NOC 0111). The parties agree that the applicant was properly awarded 59 units.
[5] From the outset, however, counsel for the applicant acknowledged that the units of assessment would not reflect his client"s chances to become successfully established in Canada. Accordingly, he requested that the visa officer"s discretion be exercised positively pursuant to subsection 11(3) of the Immigration Regulations, 1978 , principally in view of his ongoing employment in Canada in his intended occupation.
[6] The visa officer"s refusal letter was expressed in these terms:
| The letter of reference from Weilai Canada Enterprises Ltd. describes your duties just as listed under the National Occupational Classification description of the duties and abilities of a financial manager, without an omission or an addition. Nevertheless I have decided to give you the benefit of the doubt. Notwithstanding the above, you have obtained insufficient units of assessment to qualify for immigration to Canada. |
| ... |
| I have also determined that relief pursuant to subsection 11(3) of the Regulations is not warranted as, in my opinion, the units of assessment awarded to you are an accurate reflection of your chances of becoming successfully established in Canada. |
[7] In his affidavit, the visa officer further explained his refusal to exercise his discretion, under subsection 11(3) of the Regulations, in favour of the applicant as follows:
| The issues of person[a]l address, home number and the wording of the letter of reference did not negatively affect the Application. Full number of units of assessment had been given for education and experience. There was nothing in the Application nor documents provided thereof which impressed me as being "good reasons" for exercise of positive discretion, I did not make a submission or recommendation with respect to paragraph 11(3)(a) of the Regulations [sic]. [Emphasis added.] |
[8] However, the visa officer"s CAIPS notes are more revealing. He assessed the applicant under Financial Manager despite his initial concerns. In his analysis under subsection 11(3), however, he returned to his original misgivings: "I have some doubts as to the duties of the applicant, as per my notes above", which refer to the uncertainty of the applicant"s functions and the extent of his employer"s operations in Canada.
[9] In my view, the visa officer misapplied his discretionary power under subsection 11(3) of the Regulations. If he had doubts which he could not readily resolve in the applicant"s favour, he ought to have continued that analysis before deciding to assess him as Financial Manager. Once he made that determination, however, he was acknowledging the applicant"s experience in that occupation, for two years in China and two years in Canada with the related employers. He awarded the maximum number of units under the experience factor for this occupation and for the applicant"s education and training. It was wholly inconsistent, having made that determination, to question seriously that the applicant could become successfully established in Canada. He was gainfully employed here when the visa officer"s decision was made and there was no suggestion that this employment was about to end.
[10] In Khan v. Canada (Minister of Citizenship and Immigration, [1997] F.C.J. No. 285 (QL) (T.D.), Richard J., as he then was, wrote:
| ...while the discretion conferred on the visa officer under s. 11(3) is a broad one, it is not an unrestricted discretion at large, either to reject or to grant an application for permanent residence. It must be exercised in good faith and for the purpose it was given. It cannot be based on irrelevant considerations or ignore relevant considerations. There is no allegation of bad faith here. However, the Visa Officer clearly discounted the applicant"s job offer to the point where she considered that it was not available. This was not a question of assigning weight to the job offer but amounted to completely ignoring a relevant consideration. |
The same reasoning is applicable here.
[11] In refusing to authorize landing, the visa officer ignored the applicant"s ongoing employment in Canada. He could not properly do so, after giving the applicant "the benefit of the doubt" and acknowledging his current employment as Financial Manager. The refusal to accept that the applicant could become successfully established in Canada, even without the required units of assessment, was without regard to the material before the visa officer.
[12] Accordingly, this application for judicial review will be granted and the matter remitted for redetermination by a different visa officer. If the parties cannot otherwise agree and need to make representations concerning the certification of a serious question or the issue of costs, they should arrange between themselves a schedule which will assure that such submissions are filed within fifteen days from the date of these reasons.
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
July 30, 1999