Date: 19990907
Docket: IMM-4955-98
BETWEEN:
SUK YEE KWONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN J.
[1] The applicant challenges by way of judicial review the decision, dated 26 August 1998, made by immigration officer Irma Roa, in which the applicant"s application for permanent residence was refused on the grounds that the applicant failed to earn the required minimum units of assessment and had presented no extraordinary evidence to warrant the exercise of discretion in her favour. The applicant seeks an Order setting aside the visa officer"s decision and requests that the matter be heard anew by a different immigration officer.
Background
[2] The applicant, Suk Yee Kwong, is a citizen of Hong Kong. She applied for permanent residence at the Canadian Consulate General in Buffalo, New York, along with her husband and son, on 17 February 1997. She sought to be assessed under the independent category in her intended occupation of credit officer, classified as CCDO 1171-210.
[3] The applicant also submitted a request, pursuant to paragraph 11(3)(a) of the Immigration Regulations (the "Regulations"), that the immigration officer exercise positive discretion in her favour, on the basis that the selection criteria, as assessed, do not accurately reflect the likelihood that the applicant would be able to successfully establish herself in Canada.
[4] The applicant"s request for discretionary consideration was supported by the following: she has worked for the Hongkong Bank since 1982, and many of her former colleagues emigrated to Canada where they were hired by the Bank"s Canadian subsidiary, the Hongkong Bank of Canada. She and her husband planned to bring over $400 000 in savings to Canada, and they had paid a deposit toward the purchase of a condominium in downtown Toronto. Although her husband"s intended occupation of collector and seller of stamps is not on the general occupations list, he has extensive experience in commercial and personal insurance sales. He also has experience assisting his father in managing his father"s two restaurants in China and Taiwan.
Decision Under Review
[5] The applicant, her husband, and her son were interviewed at the Canadian Consulate General in Los Angeles on 26 August 1998. Five days later, she received the letter of refusal which forms the decision she now challenges.
[6] In her letter of refusal, the immigration officer assessed the applicant as a credit officer, and awarded her 63 units of assessment, just seven units short of the required minimum (applicant"s application record, pp. 121-122). She then noted,
| Also, I wish to emphasize that I have considered whether or not these units of assessment are an accurate indication of your ability to become successfully established in Canada and I am satisfied that the assessment is accurate. You have presented no extraordinary evidence to warrant approval on discretion. |
Applicant"s Position
[7] The applicant submits that the immigration officer failed to properly exercise the discretion conferred on her by subsection 11(3) of the Regulations. The applicant contends that the immigration officer failed to take into consideration the evidence she presented in support of her request for positive discretion. She also argues that the immigration officer failed to provide her with the opportunity to confirm that she had a job offer from the Hongkong Bank of Canada. According to the applicant, the immigration officer precluded her from furnishing any additional evidence that would bolster the family"s prospects for successful establishment in Canada when the immigration officer indicated to the applicant that she was happy with what the applicant had presented.
[8] The applicant also argues that the immigration officer applied the wrong test under subsection 11(3), by requiring the applicant to adduce "extraordinary evidence", as opposed to "good reasons."
Respondent"s Position
[9] The respondent submits that the immigration officer did not err in concluding that the applicant had not obtained a formal job offer in Canada, and that the onus is on the applicant to adduce such evidence. The only evidence presented was that of verbal encouragement from Hongkong Bank of Canada officials to apply for a position upon landing.
[10] With regard to the applicant"s purchase of a condominium in Toronto, the respondent submits that the applicant had indicated to the immigration officer that it was purchased mainly as an investment, and the deal had not been completed.
[11] The respondent submits that the immigration officer was under no duty to consider the applicant"s husband"s circumstances as he was not the principal applicant.
Issue
[12] The issue to be decided is whether the immigration officer properly exercised the discretion conferred on her by subsection 11(3) of the Immigration Regulations.
Discussion
[13] Successful immigrants are selected on the basis of enumerated criteria, set out in the Regulations. To be successful, a putative immigrant must achieve 70 units of assessment. However, subsection 11(3) grants immigration officers the discretion to award a visa in circumstances where the applicant fails to reach the required minimum. Subsection 11(3) provides,
| 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 |
| (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. |
[14] Economic reasons are the driving force behind the exercise of discretion under subsection 11(3). The economic reasons relate to the applicant"s ability to make a living and establish himself or herself in Canada, which is a forward looking exercise: Singh v. Canada (MCI) (1995), 106 F.T.R. 66 (T.D.).
[15] In her CAIPS notes (respondent"s record, tab 1, affidavit of Irma Roa, exhibit A, p. 7), the immigration officer makes the following comments, presumably in regard to the issue of whether positive discretion was warranted,
| REVIEW OF CASE SHOWS THAT UNITS OBTAINED ARE ACCURATE REFLECTION OF SUBJECT"S CHANCES FOR SUCCESSFUL ESTABLISHMENT IN CDA. DID NOT OBTAIN A FORMAL WRITTEN JOB OFFER. SAYS WAS VERBAL BUT HAS NOTHING TO PROVE THAT SHE ACTUALLY SPOKE TO ANYONE AT THE HKONG BANK IN CDA REGARDING THE POSSIBILITY OF EMPLOYMENT. HAS TAKEN NO STEPS TO PREPARE FOR MOVE TO CANADA, SPOUSE HAS LITTLE OR NO KNOWLEDGE OF THE ENGLISH LANGUAGE, AND NO FAMILY IN CANADA. HAS ONLY BEEN TO CANADA ONCE FOR A WEEK"S TIME (PURCHASED APT IN TORONTO WHICH IS APPARENTLY NOT YET COMPLETED). NOTHING EXTRAORDINARY ABOUT THIS CASE, AM NOT PREPARED TO RECOMMEND FOR POSITIVE DISCRETION. |
[16] While the onus is on the applicant to fully satisfy the immigration officer as to the existence of all of the positive ingredients in her application, in these circumstances, the immigration officer should have accorded the applicant the opportunity to furnish written confirmation of the job offer she said she received. Clearly, the existence of a formal job offer was a factor of the utmost importance to the immigration officer, who noted in her CAIPS notes prior to the interview,
| IF SUCH AN OFFER OF EMPLOYMENT IS OBTAINED THIS WILL BE A POSITIVE FACTOR IN DETERMINING SUBJ"S OVERALL SETTLEMENT POTENTIAL. |
(Respondent"s record, tab 1, affidavit of Irma Roa, exhibit A, p. 6)
[17] Fairness dictates that the applicant be given the chance to satisfy the immigration officer of the existence of the job offer she claimed to have received.
[18] However, the immigration officer"s CAIPS notes and refusal letter reveal another error which warrants this Court"s intervention. The immigration officer applied a standard not contemplated in subsection 11(3) when she required the applicant to present "extraordinary" evidence, as opposed to "good reasons". Subsection 11(3) speaks only of good reasons, not extraordinary evidence. She should have assessed the applicant"s request for positive discretion in light of whether the applicant"s stated reasons amounted to good reasons; to do otherwise amounts to an error in law.
Conclusion
[19] In the result, this application for judicial review is hereby granted and the matter is to be sent back for redetermination by a different visa officer.
Ottawa, Ontario
September 7, 1999
B. Cullen J.F.C.C.