Date: 20001109
Docket: IMM-3266-99
Between :
BIREN SATHWARA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review with respect to the decision of visa officer Anabela Pereira, of the Canadian Consulate General in Hong Kong, dated June 8, 1999, refusing the applicant's application for permanent residence.
[2] The applicant is a citizen of India. He submitted his application for permanent residence under the Independent category and asked to be assessed under the occupation of Computer Systems Analyst. He was interviewed on June 1, 1999.
[3] The applicant was informed by letter dated June 8, 1999, that he had received insufficient units of assessment for immigration to Canada.
[4] Counsel for the respondent initially asks that exhibits "D" to "I" be struck as they were not before the visa officer at the time of her decision. She also argues that because the letter of reference in exhibit "F" is dated August 9, 1999 (after the applicant's affidavit was sworn on August 2, 1999) the latter's affidavit must be given no probative value for want of certainty.
[5] The applicant is not entitled to rely upon evidence which was not before the visa officer in the course of making his or her decision (see Rahi v. Minister of Employment and Immigration (May 25, 1990), A-1343-90). Consequently, I agree to strike exhibits "D" to "I" from the record. However, I do not agree that the applicant's affidavit ought not be given any probative value whatsoever.
[6] As has been clearly established by the Federal Court of Appeal in Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the appropriate standard of review for discretionary decisions of visa officers with respect to immigration applications is the same as that enunciated by the Supreme Court of Canada in Maple Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2, where Mr. Justice McIntyre states at pages 7 to 8:
| . . . It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. . . . |
[7] Applying those principles to the case at bar, I am not satisfied, upon hearing counsel for the parties and reviewing the evidence, that 1) the visa officer's decision was unreasonable in light of the evidence before her, 2) the applicant's experience and education were not correctly assessed and 3) the applicant was not provided a full and fair opportunity to respond to the visa officer's questions.
[8] Finally, in spite of the visa officer's poor formulation of the requirements at issue for the intended occupation of Computer Systems Analyst in paragraph 11 of her affidavit, I am not convinced, in the context of the other allegations in the affidavit and of the rest of the evidence, that the relevant requirements (NOC #2162) were not applied correctly. Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
November 9, 2000