IMM-844-96
BETWEEN:
MAO, Xiang and SUN, Lianmin
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
This is an application pursuant to section 18.1 of the Federal Court Act for judicial review of a decision of Susan Dragan, a visa officer at the Commission for Canada in Hong Kong, dated January 9, 1996 and received by the applicant's representative, Dalma Immigration Services, on February 6, 1996. Although the applicant accumulated more than the minimum required number of units of assessment in the Assisted Relative category, the visa officer refused the applicant's application for a permanent residence visa pursuant to her discretionary power under paragraph 11(3)(b) of the Immigration Regulations, 1978 (the "Regulations"). That paragraph reads:
| 11(3) A visa officer may |
| [...] |
| (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. |
The visa officer informed the applicant at the interview that while he technically had sufficient points to pass, she was going to recommend that negative discretion be exercised and his application be refused, pursuant to subsection 11(3) of the Immigration Regulations, based upon her belief that he could not successfully establish and be employed in his intended occupation in Canada.
On November 9, 1995, the visa officer forwarded her Request for Use of Negative Discretion to a senior immigration officer. That request reads in part:
| Reasons for Negative Discretion: |
| - PI is from PRC and works in a PRC state-owned company. Rarely uses English and although he claimed to know English well, had serious communications difficulties during the interview and an interpreter was required. PI would not be able to understand instructions from an employer or client. Likewise employer or client would have serious difficulty in understanding PI. |
| - total personal assets are US$11, 000 (C$14,729) which according to IS 4 would normallybe [sic] sufficient for a person to live on for 6 months in Canada. This does not take into account the cost of airfare/physical move. However, I believe PI would have an extremely difficult time finding any engineering or computer related employment given his major communications difficulty in English and non-existant [sic] French. Given the professional area of employment, it would be expected that a significant part if not all of his work would be conducted in either of those two languages. I believe that he would require significantly more time to find employment and would quickly run out of the minimal funds that he has such that he would likely require social assistance. I therefore request the use of negative discretion as per R11(3). |
This request for the exercise of negative discretion was reviewed and approved by a senior immigration officer on November 13, 1995.
By letter dated January 9, 1996, visa officer Susan Dragan informed the applicant that his application for permanent residence in Canada had been refused.
In my opinion, the applicant has failed to establish that the visa officer acted unreasonably in exercising her discretion to refuse his application for permanent residence in Canada, pursuant to paragraph 11(3)(b) of the Act. The visa officer acted in accordance with the requirements of the Law and the Regulations by first submitting her reasons for recommending the negative exercise of discretion to a senior immigration officer for approval. In my view, the reasons cited by the visa officer in support of her negative decision, namely the applicant's deficient English language skills and his limited funds, were relevant considerations which accurately reflect his chances of becoming successfully established economically in Canada (see Chen v. Canada (M.C.I.), [1991] 3 F.C. 350 (T.D.); [1994] 1 F.C. 639 (C.A.); and [1995] 1 S.C.R. 725). Provided that the reasons invoked by the visa officer for exercising negative discretion are relevant to the applicant's chance of becoming successfully established economically in Canada, and not to some other measure of success, he or she may properly base his or her decision on any number of factors, including those found in Schedule I of the Regulations (see Covrig v. Canada (M.C.I.), [1995] 104 F.T.R. 41 (F.C.T.D.); and Savin v. Canada (M.C.I.), [1995] 102 F.T.R. 67 (F.C.T.D.) at p. 71).
Accordingly, the application must be dismissed. I agree with counsel for the parties that this case does not involve a serious question of general importance as contemplated by section 83 of the Immigration Act.
OTTAWA, Ontario
January 16, 1997
JUDGE