Date: 19980217
Docket: IMM-972-97
BETWEEN:
RUP CHAND,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] The applicant seeks an order quashing the immigration officer's decision dated February 7, 1997, to deny him permanent residence status in Canada, and orders of mandamus and certiorari. This judge probably would not have rejected Mr. Chand's application, but this judge is not an immigration officer. The officer was here acting in the rôle of a visa officer.
[2] The immigration officer's affidavit asserts the following:
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3. Mr. Chand's application for permanent residence in Canada was received in Buffalo on July 9, 1996. Documents in the submission included a job offer from "Motimahal" Restaurant validated by Canada Employment Centre for a permanent position as "East Indian Sweet Maker/Cook" CCDO 6121 126. |
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4. On August 9, 1996 the application was paperscreened and, even with bonus points awarded for a validated offer of employment, the applicant failed to obtain sufficient units of assessment to pass. The applicant's agent had requested the use of positive discretion in accordance with R11(3) to overcome the lack of sufficient units. On this basis, the case analyst reviewing the application decided to convoke the applicant for a personal interview to further assess the merits of his case and to determine if the use of positive discretion was warranted. Medical forms for the applicant and his dependents along with a letter advising Mr. Chand of the necessity of a personal interview were sent on the same day. |
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5. The applicant attended his interview on February 3, 1997. His English language ability was minimal and he required the services of an interpreter throughout the entire interview. |
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6. During the interview, the applicant's documents were reviewed. He confirmed that he has no formal education or training of any kind and he could not, therefore, provide any educational diplomas or certificates. He advised that he has been working as cook specializing in Indian sweets since 1980, and has been working as an Indian Sweet Maker in Canada since 1990. He also advised that he had spent a short time as a self-employed caterer. He provided letters of reference from "Evergreen Sweet House" in New Delhi and from "Motimahal Restaurant" in Toronto attesting to his cooking skills and noting his pleasant manner. He did not provide any documentation regarding his period of self-employment. |
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7. Despite his lack of formal training, I assessed the applicant as "Cook, Foreign Foods". In light of his 17 years of experience, and based on his description of his duties and responsibilities in his present position, I felt that he would be able to meet the essential elements of the definition of "Cook, Foreign Foods" as set out in the Canadian Classification and Dictionary of Occupations. |
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8. I determined that Mr. Chand should receive a personal suitability score of 5 based on his adaptability, motivation, initiative, resourcefulness and other similar qualities. He has not demonstrated that his [sic] is adaptable or motivated nor has he demonstrated any initiative in that he spent the last six years in Canada). As well, though his transferable skills and his employability are limited, he has made no effort to further educate himself in any way. Overall, I was not satisfied that he had endeavoured to integrate himself into Canadian society in any way during the last six years. |
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9. At the conclusion of his personal interview, with all things considered, Mr. Chand had failed to obtain sufficient units of assessment to pass at selection. In my opinion, the points awarded accurately reflect Mr. Chand's ability to establish in Canada and as such, I did not believe that the use of positive discretion was warranted. |
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10. I advised Mr Chand that even though he appeared to be qualified in the occupation of "Cook", he had failed to obtain sufficient units of assessment to pass at selection. As well, I advised him that I had serious concerns regarding his ability to settle successfully in Canada. Mr. Chand was not able to disabuse me of my concerns and he was somewhat distraught when advised that his application was refused. He requested that I speak with his employer, who was in the waiting room. I advised him that if his employer had concerns, she should direct a letter to our office. |
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[3] The immigration officer accorded the applicant the following:
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INDIAN SWEET MAKER/COOK 6121 126 |
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SPECIFIC VOCATIONAL PREPARATION 15 |
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ARRANGED EMPLOYMENT OR DESIGNATED OCCUPATION 10 |
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KNOWLEDGE OF ENGLISH LANGUAGE 0 |
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KNOWLEDGE OF FRENCH LANGUAGE 0 |
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TOTAL (minimum required 70) 64 |
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The applicant contends that he ought to have achieved a score of 10 for personal suitability, which in his specific case is too optimistic, but even if he had achieved the full 10 he would still have fallen short: 64 + 5 = 69.
[4] The foregoing notwithstanding, however, it is apparent that the immigration officer, in paragraph 8, inter alia of her affidavit, was applying standards which a citizenship judge would apply. After all, the applicant does not intend to earn his family's living as a physician, accountant, lawyer or professor, just as Indian restaurant sweets-cook. Nor was he making an application for citizenship, which he would have failed decisively. So, the immigration officer clearly misconstrued her function as defined ultimately by the Supreme Court of Canada in Chen v. M.E.I., [1995] 1 S.C.R. 725, which adopted the views of Mr. Justice Strayer then of the Trial Division [1991] 3 F.C. 350, and of Mr. Justice Robertson of the Court of Appeal, in dissent [1994] 1 F.C. 639 at pp. 649-50, regarding the interpretation of subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172. The Supreme Court restored the order made by Strayer, J. Subsection 11(3) accords the officer a discretion to admit one who underscores, and to reject one who overscores.
[5] Strayer, J. wrote as follows:
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More specifically, the basic question is -- on what grounds can the visa officer exercise his discretion in forming the opinion that there are "good reasons" why the number of units awarded do not reflect adequately the chances of an immigrant becoming "successfully established" in Canada? It is inconceivable that this was intended to give a visa officer an unlimited mandate to decide whether a particular immigrant is generally suitable or not as a future member of Canadian society, given the existence of other, extensive, provisions in the Act for identifying those who are suitable or unsuitable. It may first be observed that subsection 11(3) cannot be taken to overlap the grounds of the "inadmissible classes" found in section 19. |
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While it is nowhere clearly spelled out, the selection standards authorized for use by paragraph 114(1)(a) of the Act, and the actual factors identified in Schedule I of the Regulations, appear to be essentially related to the ability of an immigrant to make a living in Canada or to be economically sustained other than by the State. Of the factors in Column I there might be some ambiguity about "Knowledge of English and French Languages", although such knowledge apart from being socially important is obviously very important for the making of a living. The criteria for assessing points for "Age" obviously give a preference to those in their prime working years. The factor of "Personal Suitability", while seemingly ambiguous, according to the criteria set out in Column II authorizes the awarding of units: |
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9. Personal suitability . . . to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities. |
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These enumerated criteria of personal suitability, while not wholly irrelevant to social success, seem primarily related to the ability to support oneself. The term "and other similar qualities" should, I think, be read ejusdem generis with the enumerated criteria which precede it. |
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Given this emphasis on economic factors as identified by both Parliament and the Governor in Council for determining whether an immigrant can become "successfully established" in Canada, it is difficult to read the discretionary power granted to a visa officer by subsection 11(3) of the Regulations as allowing him to ignore the number of units of assessment and to determine, for essentially non-economic reasons, that an immigrant does not have a chance of becoming successfully established in Canada. While the subsection only requires that the visa officer have "good reasons", those reasons must be such as lead him to believe that the immigrant cannot become successfully established in the economic sense. They do not include such reasons as that an immigrant will probably not be a good neighbour, a good resident, or ultimately a good citizen of Canada; * * * If they are to be excluded for such reasons, it must be done under the process contemplated by section 19 and not through a visa officer exercising his discretion under subsection 11(3) of the Regulations because he feels that a particular immigrant is undesirable. |
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The third reason given by Mr. Spunt to Mr. Nauman for the exercise of discretion was that the applicant |
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. . . has displayed personal suitability which is incompatible with what is required for an immigrant in his category. |
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This raises difficult questions as to the relationship between an assessment made in accordance with sections 8 and 9 and Schedule I, and a finding under subsection 11(3) that such an assessment of units should not be determinative of whether a person can become successfully established. If the unit assessment is wrong, then the visa officer should change that assessment. In this case Mr. Spunt reviewed the assessment of "personal suitability" made by Ms. Trillo as 7 units out of 10 and he confirmed it. I fail to see how he can then offer that the applicant does not have a sufficient degree of personal suitability. It is conceivable that the discretionary power under subsection 11(3) could properly be used where an immigrant was so lacking in one of the factors listed in Column I that a 0 impact of that deficiency on his ability to become successfully established. But it appears to me that a pre-condition for exercising the discretion on that ground would be to rate that factor at 0 in the assessment. |
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The discretionary power in subsection 11(3) is an extraordinary one which, it has been held, must be exercised in strict conformity with the requirement of submitting written reasons to a senior immigration officer and getting his approval. I have no doubt this means that the reasons given for such exercise of discretion must be the real reasons, and must be lawful reasons which these were not. |
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I will therefore grant the order of certiorari quashing the decision recorded in the letter from Mr. Spunt to the applicant of February 14, 1989. I will also issue an order of mandamus requiring that the respondents consider and process the application of the applicant for permanent residence in Canada in accordance with law; and more specifically that he be given a new interview, and that his application be determined, by a different visa officer at a different visa office in the United States most convenient for the parties. |
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It was this disposition which was restored by the Supreme Court of Canada.
[6] It should be noted that the applicant herein, Mr. Chand, has had a permanent employment validation since May 6, 1996, from Human Resources Development Canada. It was obtained because the applicant's employer satisfied HRDC that the applicant's permanent employment would not adversely affect employment and career opportunities for Canadian citizens or permanent residents. Mr. Chand has been employed by the same Indian restaurant since 1990, and has saved up a "nest-egg" of $20,000. In a letter, exhibit E to the applicant's affidavit, his employer states that he "will gladly keep Mr. Roop Chand employed * * * for as long as he desires to work here. He is hard working."
[7] The applicant asserts that the visa officer overlooked or minimized the significance of the above noted facts, and his assertion is plausible. As noted, she seemed to be casting herself in the rôle of a citizenship judge, and not limiting her rôle to that mandated by the Supreme Court in the Chen case. That deficiency evinced an error of law.
[8] Such error robs the visa officer's purported exercise of discretion in regard to regulation 11(3) of the deference which the Court must ordinarily accord in similar, but lawful, circumstances. Therefore, ex debito justiciae, this Court will accord the applicant, and his dependents, the remedies he seeks. There will be orders in the nature of certiorari and mandamus, quashing the visa officer's negative decision of February 7, 1997, and directing the respondent to refer Rup Chand's application for permanent residence to another visa officer for redetermination according to law, noting the provisions of these reasons on such redetermination.
[9] In making this disposition the Court has not needed the materials, sent by both counsel after the hearing.
[10] There are apparently no special reasons for an award of costs against the respondent, since no malice or dereliction of duty has been demonstrated on the visa officer's part.
F.C. Muldoon
Judge
Ottawa, Ontario
February 17, 1998