Date: 19990121
Docket: IMM-6349-98
BETWEEN:
KIN WING LAU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a visa officer"s decision to deny the Applicant permanent residence in Canada as an Assisted Relative. The Applicant has already been before this Court twice (IMM-831-97; IMM-3345-94). Both times he was successful and the visa officers" decisions were overturned and the file sent back for reconsideration. Following Campbell J."s decision in IMM-831-97, a third visa officer denied the application. The Applicant is appealing this third decision.
FACTS
[2] The Applicant is a citizen of the People"s Republic of China. He is married and has two children. In China, the Applicant worked as a farmer and as a second cook. His parents and both of his brothers live in Toronto. At the time of the original application, the Applicant had a job offer from each of his brothers and an Undertaking of Assistance for him and his wife and children.
[3] On the previous assessment, the Applicant was assessed 71 points, sufficient to satisfy the requirements of the Immigration Act1 (the "Act"), yet the visa officer exercised her discretion under s. 11(3) of the Immigration Regulations , 19782 (the "Regulations") and refused the application. On the subsequent judicial review, Campbell J. ruled that the visa officer had unlawfully fettered her discretion by her strict adherence to a directive issued by the Deputy Minister listing the criteria to be considered when assessing applicants. In sending the matter back, Campbell J. stated that the number of points was not in dispute and that the only issue to be determined was "whether negative discretion is appropriate."
[4] Campbell J."s order stipulated that "[i]n contemplating the exercise of discretion, if any, the "good reasons" referred to in s. 11(3) of the Regulations must include consideration of: (i) two job offers, to which substantial weight must be given; and (ii) the undertaking, to which substantial weight must be given."
[5] The third visa officer also exercised his discretion under s. 11(3) of the Regulations and refused to grant the application, because he did not consider the units awarded to be an accurate reflection of the Applicant"s ability to successfully establish in Canada.
[6] The letter notifying the Applicant of the visa officer"s opinion reads, in part, as follows:
| In determining that the exercise of negative discretion was warranted, the following facts were considered: |
| Despite having failed previously to meet selection largely because of language ability, you have done nothing to enhance your likelihood of successful settlement/ establishment in Canada with respect to ability to communicate in either official language. ... You were unable to articulate how your complete lack of English may affect your ability to establish in Canada. |
| You have a primary education and no additional training or education. You are able to write in Chinese characters but your grammar is poor. Your usage and choice of characters and ideograms belies a modest degree of literacy in Chinese. I have considered your literacy skills as an indication of your ability to become successfully established in Canada. |
| In consideration of the Court"s order, I have taken into consideration job offers provided by your two siblings in Canada. Your youngest brother, who sponsored your application, is currently working as a cook in a restaurant. You stated that while this brother may have once had a share in a restaurant, he now works solely as a salaried employee. As this brother is an employee, the offer of employment made previously cannot be given any weight. |
| Per information provided by your counsel, your second brother is a minority shareholder in a Chinese restaurant where he works as a cook. You were not familiar with the terms of the job offer and knew not what your responsibilities might be or what differences might exist between foods prepared in Canada and those in PRC. Per unaudited financial statements covering the last 2 years of operation of this restaurant, the net profits before tax were CAD 11,007 and 9,982 respectively. Based on the foregoing, and in consideration of the Court"s direction to place significant weight on the job offer, I believe that this business, 25% owned by your brother, cannot provide full-time employment, let alone at 26,000/annum as indicated in the offer. You have not provided corresponding personal tax documents to either confirm or deny this conclusion or provide proof that your brother"s business provides a sufficient level of income to maintain the employment offered and/or to support you and your family as required. You were counselled of my concerns with respect to both job offers and provided no rebuttal to overcome my concerns. |
| ... Your expectations for Canada are that you will be a cook and that your brother(s) will provide for you completely, expectations consistent with a complete lack of research or preparation. |
| ... |
| You have no demonstrable knowledge of Canada or labour market matters which would affect your ability to establish and earn a livelihood. You were questioned at some length regarding a job strategy should either of your informal job offers not come to fruition or last only a short time. You replied that your siblings in Canada would assist and provide all necessary support. You are nearly 51 years of age, speak no English, have spent your entire life in a rural village, and have only ever worked as a farm labourer and in an assigned capacity as a second cook with skills limited to frying. ... Your admitted lack of research, complete reliance on extrinsic forces (family members), scant understanding of, and lack of research into, the Canadian labour market, and lack of any contingency plans whatsoever is not indicative of such attributes as adaptability, initiative, motivation, or resourcefulness. |
| With respect to any contingency plans, you have none whatsoever should you have to seek employment on the labour market and support yourself and your family. You repeatedly stated that your brothers would provide for you. However, as indicated, above, one informal job offer has been obviated by one brother not being in a position to offer employment at all and the other in financial circumstances as such to make his informal job offer not viable. In my opinion, you display an unrealistic and profound reliance on others and this betrays a lack of the factors which might allow you to settle/establish successfully in Canada. |
| The above facts suggest that there will be significant economic difficulties in your establishing yourself in Canada to such an extent that the exercise of negative discretion is appropriate. |
Before making a final decision, and per the Court"s order, I have provided you with the facts upon which have been relied upon in the exercise of negative discretion and have allowed you sixty (60) days to rebut same before a final decision is made.3
[7] The visa officer arrived at this conclusion after examining the two job offers and determining that neither was viable, and after considering various other factors about the Applicant and his situation.
ISSUES
| a) Did the visa officer err in exercising his discretion based on the current time frame and not on the facts as they existed at the time of the application? |
| b) If the visa officer employed the correct time frame, did he conduct the redetermination of the application in compliance with Campbell J."s order? |
| c) Does Campbell J."s order render the factors considered by the previous visa officer res judicata , thereby preventing the present visa officer from considering them? |
ANALYSIS
[8] Regulation 11(3)(b) gives the visa officer authority to refuse to issue an immigrant visa where he or she is of the opinion that there are "good reasons" that the number of units are not an accurate reflection of the Applicant"s chances of becoming successfully established in Canada. It states:
| 11.(3) A visa officer may
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. |
11.(3) L'agent des visas peut ...
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier. |
1) The Time Frame
[9] The Applicant submits the cases of Wong v. Minister of Employment and Immigration4 and Yeung v. Canada (Minister of Employment and Immigration)5 for the proposition that the assessment should be conducted based on the facts as they existed at the time the application was received by Immigration officials, and not based on the facts as they were at the time of the reassessment. In my opinion, these two cases state that the "lock-in" date for the applicable law and regulations shall be fixed at the time the application is received. However, that is not this case. The present application deals with an exercise of discretion.
[10] In my opinion, when a visa officer exercises his or her discretion, he or she must do so on the basis of the facts as they stand at the time of the exercise of that discretion. This is especially the case where there has been a change in circumstances. If, for example, the brothers were no longer alive or had sold their businesses and moved to another country, it would be illogical to expect a visa officer to form an opinion and simply ignore these facts. In arriving at this conclusion, I am guided by the words of Clive Lewis, in Judicial Remedies in Public Law: 6
The decision-maker is required to consider all the relevant factors that exist at the time that he takes the second decision, and is not confined to looking at the material that existed at the time of the original invalid decision.
[11] I note that such an approach could also work to an applicant"s advantage, where he or she has managed to upgrade skills or secure a viable job offer. Unfortunately, for the present Applicant, the circumstances have worked against him.
[12] At the time of his original application, the Applicant had received a job offer from each of his two brothers in Canada. However, when these offers were assessed, the one brother no longer owned a restaurant and, as an employee, was not in a position to extend an offer of employment. Similarly, the second brother was not financially able to extend an offer of employment since, based on unaudited financial statements, his restaurant was not generating sufficient profits to satisfy the offer of $24,000 per annum. The visa officer considered these facts and determined that the job offers were no longer viable.
[13] The visa officer correctly employed the current time frame in determining whether or not to exercise his discretion.
2) Compliance with Campbell J."s Order
[14] Campbell J. stated that a new visa officer must conduct a redetermination of whether the exercise of discretion was made in accordance with the dictum of Strayer J. in Chen v. Canada (Minister of Employment and Immigration).7
[15] In Chen8, Strayer J. dealt with the question of what constitutes "good reasons" for believing that the number of units do not reflect adequately the immigrant"s chances of becoming "successfully established" in Canada. He determined that those "good reasons" must deal with economic establishment.
While the subsection only requires that the visa officer have "good reasons", those reasons must be such as to lead him to believe that the immigrant cannot become successfully established in the economic sense.9
[16] The issue in Chen was whether the visa officer could exercise his discretion based on the Applicant"s attempt to expedite the application process by offering a bribe to the visa officer. Strayer J. held that although the Applicant"s morals may be questionable, the visa officer"s discretion under regulation 11(3)(b) was limited to economic factors and thus could not be exercised based on non-economic factors such as questionable morals.
[17] In Mr. Chubak"s decision, he did indeed consider the two job offers in depth and, as discussed above, correctly using the current time frame, he determined that neither was still viable at the time of the reassessment.
[18] Mr. Chubak went on to consider the fact that the Applicant came from a rural community, spoke very little English and was hardly literate in Chinese; his skills were very limited and he had never lived in a big city; the Applicant wanted to settle in Toronto, but had no knowledge of the labour market; he simply stated that his brothers would look after him. Mr. Chubak concludes in his letter to the Applicant that "the above facts suggest that there will be significant economic difficulties in your establishing yourself in Canada to such an extent that the exercise of negative discretion is appropriate."10
[19] This conclusion indicates that, as per Campbell J."s order, Mr. Chubak considered the Applicant"s case, including the fact that the job offers and the undertaking of assistance were no longer viable, with an eye to determining whether or not the Applicant could become economically established in Canada, in accordance with the Chen decision. In Mr. Chubak"s opinion, he could not.
3) Res judicata
[20] For the purposes of res judicata, Campbell J."s judgment is limited to the finding that Ms. Barr"s exercise of discretion was made in error because of her strict adherence to the directive issued by the Deputy Minister.
[21] Campbell J. ordered a redetermination of whether there were good reasons for the exercise of negative discretion. In Mao v. Canada (Minister of Citizenship and Immigration),11 Pinard J. stated that as long as the reasons are relevant to the Applicant"s chances of becoming economically established, a visa officer may rely on any number of factors when determining whether or not there are good reasons to exercise negative discretion:
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 ...12
[22] In forming his opinion, Mr. Chubak was entitled to conduct his own assessment of the factors relevant to the Applicant"s chances of becoming economically established in Canada.
[23] Mr. Chubak was simply complying with Campbell J."s order to reconsider the exercise of discretion in accordance with the Chen decision. As such the doctrine of res judicata does not apply in this situation.
[24] In my opinion, Mr. Chubak committed no reviewable errors and exercised his discretion in accordance with Campbell J."s order.
CONCLUSION
[25] For all of the above reasons, the application for judicial review is dismissed.
[26] Counsel for the Applicant has submitted the following questions to be certified:
| 1) When a judicial review is granted, do the subset of facts inherent in the Order granted, including those issues which might have been raised, constitute res judicata so that a subsequent inquiry by a visa officer is eliminated on the ground that the facts are merged in the judgment? This question refers only to those matters of assessment which are backward looking, as expressed in the case of Kaloti v. Canada (Minister of Citizenship and Immigration (8 September 1998), IMM-4932-97 (F.C.T.D.). |
| 2) What is the relevant time frame in the exercise of the discretion when the assessment is made in 1994 - is it appropriate that the discretion be limited to 1994? |
I do not see how res judicata can operate such that the order prohibits the very assessment the visa officer is ordered to perform. This is not an appropriate case in which to certify either of these questions. Therefore, no question will be certified.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
January 21, 1999.
__________________3 Letter of G. Chubak to Liu Jian Rong (7 September 1998).
4 (1986), 64 N.R. 309 (F.C.A.).
5 (1992), 17 Imm. L.R. (2d) 191 (F.C.T.D.).
6 (London: Sweet & Maxwell, 1992) at 151.
7 [1991] 3 F.C. 350 (T.D.); rev"d [1994] 1 F.C. 639 (C.A.); and aff"d [1995] 1 S.C.R. 725.