Date: 19980216
Docket: IMM-1072-97
OTTAWA, ONTARIO, THE 16TH DAY OF FEBRUARY 1998
Present: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
Between:
GERSHON SHARONI,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is dismissed.
Judge
Certified true translation
M. Iveson
Date: 19980216
Docket: IMM-1072-97
Between:
GERSHON SHARONI,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBÉ J.:
[1] This is an application for judicial review of a decision by a visa officer at the Canadian Embassy in Israel dated February 6, 1997 refusing the applicant's application for permanent residence.
[2] The applicant made his application for permanent residence on June 15, 1996. Before considering the application, the Embassy sent the applicant a letter dated October 25, 1996 requesting that he supply proof of an offer of employment in Canada approved by the National Employment Service. The applicant did have an offer of employment as a caretaker from his former employer, The Crawford Group of Delta, B.C. Unfortunately, it was not certified by the Canada Employment Centre because the position could be filled by a Canadian.
[3] The visa officer subsequently reviewed the applicant's application. He awarded the applicant only 33 units of assessment for the factors referred to in subsection 8(1) of the Immigration Regulations, 1978 ("the Regulations"). In a letter dated January 18, 1997, the applicant specifically asked that the visa officer consider his application for permanent residence pursuant to subsection 11(3) of the Regulations:
| 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 |
| . . . |
| 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. |
[4] The visa officer did not invite the applicant to an interview. In a letter dated February 6, 1997, the visa officer informed the applicant that he did not meet the requirements for immigration to Canada because he had obtained only 33 units of assessment, while 70 was the minimum number of units required. The letter added that subsection 11(2) of the Regulations did not allow the visa officer to issue a visa for the class under which the applicant had made his application because he had obtained zero units of assessment in respect of the occupational demand factor. The applicant's past employment as a longshoreman, construction worker and factory worker was also considered, but all these occupations resulted in zero units under the demand factor.
[5] The applicant submits that he resided in Canada for 10 years, from October 1985 to May 1995. During this period, he held a number of jobs, including as a longshoreman for the Maritime Santa Centre from 1989 to 1992 and as a caretaker for The Crawford Group from November 1992 to May 1995. He earned over $28,000 per year from these jobs in Canada. His last employer was at all times prepared to rehire him if he were admitted as an immigrant. He was also able to place almost C$70,000 in a account at the Union Bank of Israel. The applicant states that an interview with the visa officer would have enabled him to demonstrate his ability to become successfully established in Canada in light of the above facts. He insists that nothing in the visa officer's letter of refusal indicated that these positive factors were considered.
[6] I feel quite sympathetic toward the applicant's situation. Since he has been able to establish himself and function economically in Canada for ten years, and since his last employer is ready to rehire him, I think the visa officer could have been more generous toward him.
[7] Moreover, subsection 11(3) of the Regulations confers a discretion on a visa officer to issue a visa to a person even if the person has not been awarded the required number of units of assessment, provided that the visa officer is satisfied that there are good reasons why the number of units awarded does not reflect the immigrant's chances of becoming successfully established in Canada. In the instant case, the visa officer decided that the number of units of assessment awarded to the applicant accurately reflected his economic prospects in Canada. In his opinion, the applicant's chances of success were very limited because he had obtained only 33 units of assessment out of a minimum requirement of 70 units.
[8] It must be remembered that the applicant was awarded no units of assessment for the "occupational demand" factor, which means that, considering both national and regional demand in the job market, there are no openings in his chosen occupation which could not be filled by an unemployed Canadian worker. This is the reason the Employment Centre refused to validate the offer of employment by his former employer.
[9] In the instant case, the Court cannot substitute its own discretion for that of the visa officer. The applicant has not established that the visa officer exercised his discretion in bad faith or disregarded evidence that was before him. The Court cannot therefore intervene to order the visa officer to exercise his discretion in the applicant's favour under subsection 11(3) of the Regulations.
[10] Concerning the applicant's right to an interview, section 11.1 of the Regulations provides that the visa officer is not required to conduct an interview unless, in the case of an immigrant other than an "assisted relative", the immigrant has been awarded 60 units of assessment.
[11] Unfortunately for the applicant, he has accordingly established no reason justifying the intervention of this Court. This application for judicial review cannot therefore be allowed.
[12] Both parties agree that there is no serious question of general importance to certify in the instant case.
Judge
OTTAWA, Ontario
February 16, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1072-97
| STYLE OF CAUSE: GERSHON SHARONI v. Minister of Citizenship and Immigration |
| PLACE OF HEARING: Montréal, Quebec |
DATE OF HEARING: February 12, 1998
REASONS FOR ORDER BY DUBÉ J.
DATED: February 16, 1998
APPEARANCES:
Marie-Josée Houle FOR THE APPLICANT
Liza Maziade FOR THE RESPONDENT
SOLICITORS OF RECORD:
Houle, Tetley FOR THE APPLICANT
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada