[2000] 4 F.C. 337
A-737-98
Nasser Sadeghi (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Sadeghi v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Stone, Rothstein and Evans JJ.A.— Toronto, May 17, 2000.
Citizenship and Immigration — Status in Canada — Permanent residents — Appeal from dismissal of application for judicial review of visa officer’s second refusal of application for permanent residence based on exercise of discretion under Immigration Regulations, 1978, s. 11(3)(b) — Application first refused on ground insufficient units of assessment, but error in calculation and that appellant having 2 more points than normally required later acknowledged — S. 11(3)(b) extraordinary power intended for exceptional cases — Not providing visa officers with general discretion to revisit assessment — In exercising power under s. 11(3)(b) after appellant satisfying selection criteria, visa officer depriving appellant of legitimate expectation visa would be issued — Visa officer should have explained concerns to appellant permitting him to respond.
Administrative law — Judicial review — Certiorari — Appeal from dismissal of application for judicial review of visa officer’s second refusal of application for permanent residence — Subsequent to refusal of application on ground insufficient units of assessment, visa officer acknowledging error and that appellant having more points than normally required — Exercising discretion under Immigration Regulations, 1978, s. 11(3)(b) to refuse application — In so doing when appellant satisfying selection criteria, visa officer depriving appellant of legitimate expectation would be issued visa — Decisions removing legitimate expectation of receiving benefit typically attracting greater procedural protection than those where discretion is at large — Visa officer breaching duty of fairness.
This was an appeal from the dismissal of an application for judicial review of a visa officer’s denial of the appellant’s application for permanent residence. The appellant applied for a visa to enter Canada as a landed immigrant and was interviewed by a visa officer. His application was unsuccessful because he was awarded only 67 units of assessment, three short of the 70 normally needed by a person applying in the independent category. In a second letter, the visa officer acknowledged a mistake in the previous calculation of points, as a result of which the total number of points awarded was 72. However, his application was still unsuccessful because the visa officer exercised her discretion under Immigration Regulations, 1978, subsection 11(3) against the appellant on the grounds of his “limited knowledge of Canada”, “limited practical experience”, “lack of professional contacts in Canada” and “lack of preparedness to go to Canada”. Paragraph 11(3)(b) authorizes a visa officer to reject an application when there are good reasons why the number of units of assessment awarded do not accurately reflect the applicant’s chances of becoming successfully established in Canada. The appellant was interviewed before the first letter was written, but not afterwards.
The issue was whether it was a breach of the duty of fairness for the visa officer, when exercising her discretion under subsection 11(3)(b), to take into consideration matters not expressly raised with the appellant.
Held, the appeal should be allowed.
Paragraph 11(3)(b) is an extraordinary power intended for exceptional cases, and does not provide visa officers with a general discretion to revisit their assessment under the specific selection criteria which are intended to ensure a certain objectivity and uniformity in decision-making by visa officers. In exercising the power conferred by paragraph 11(3)(b) the visa officer made a discretionary decision depriving the appellant of his legitimate expectation that having satisfied the specific selection criteria, he would be issued a visa, unless he was found inadmissible under subsection 19(1). Decisions removing a person’s legitimate expectation of receiving a benefit typically attract greater procedural protection than those where the discretion is at large. The visa officer’s observation in her notes that she may have been too generous in her assessment of the appellant’s proficiency in the English language may indicate that she fell into the error of thinking that she could use paragraph 11(3)(b) to revise her evaluation when it became apparent that appellant’s total exceeded 70 points.
In order to ensure that visa officers base their opinion that there are good reasons for thinking that the points evaluation does not adequately reflect an applicant’s chances of becoming successfully established in Canada, it is important that they raise their concerns with the individual in a way that enables the applicant to respond. Accurate decision-making is particularly important when an adverse decision may deprive a person of legal rights or, as here, a legitimate expectation of receiving a statutory benefit. The burden normally borne by visa applicants to place before the visa officer all the information necessary to demonstrate that they satisfy the selection criteria reduces the obligation of visa officers to advise applicants, as a matter of procedural fairness, of whatever concerns they may have about the adequacy of the application. But once an applicant has been awarded the units of assessment normally required for a visa, it will often be unfair to expect the applicant to anticipate the grounds on which a visa officer may base a negative discretionary decision. The visa officer seems only to have put her mind specifically to subsection 11(3), when it became apparent that he should have been awarded additional points that gave him in excess of 70. The appellant could not reasonably have anticipated at the interview that the officer would subsequently be concerned about whether he had professional contacts in Canada, or that this was a matter that he should address, particularly since the only question that she did put to him about difficulties that he might encounter in finding employment was about his limited practical experience as a chemist. As a matter of procedural fairness, the visa officer ought to have explicitly asked the appellant whether he had professional contacts in Canada before using this as a basis for denying him the visa for which he had prima facie qualified under the points system. Similar fairness considerations applied to the visa officer’s reliance on the appellant’s lack of preparedness to come to Canada and on his limited knowledge of employment conditions in Canada as reasons for the negative exercise of her discretion under paragraph 11(3)(b). The decision not to issue a visa was vitiated by a breach of the duty of fairness.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1) (as am. by S.C. 1992, c. 49, s. 11; 1995, c. 15, s. 2; 1996, c. 19, s. 83), 83(1) (as am. by S.C. 1992, c. 49, s. 73).
Immigration Regulations, 1978, SOR/78-172, s. 11(3)(b).
CASES JUDICIALLY CONSIDERED
APPLIED:
Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (1986), 18 Admin. L.R. 243; 66 N.R. 8 (C.A.).
REFERRED TO:
Chen v. Canada (Minister of Employment and Immigration), [1995] 1 S.C.R. 725; (1995), 123 D.L.R. (4th) 536; 27 Imm. L.R. (2d) 1; 179 N.R. 70; revg [1994] 1 F.C. 639 (1993), 109 D.L.R. (4th) 560; 22 Imm. L.R. (2d) 213; 164 N.R. 257 (C.A.); revg [1991] 3 F.C. 350 (1991), 45 F.T.R. 91; 13 Imm. L.R. (2d) 172 (T.D.); Canada (Minister of Citizenship and Immigration) v. Hundal (1996), 206 N.R. 184; 36 Imm. L.R. (2d) 153 (F.C.A.); Wong v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 377 (F.C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (1988), 34 Admin. L.R. 206; 23 F.T.R. 241; 6 Imm. L.R. (2d) 222 (T.D.).
APPEAL from the dismissal of an application for judicial review of a visa officer’s refusal of the appellant’s application for permanent residence by exercising her discretion under Immigration Regulations, 1978, subsection 11(3), on the grounds that the visa officer breached the duty of fairness by considering certain factors without first giving the appellant an opportunity to respond (Sadeghi v. Canada (Minister of Citizenship and Immigration) (1998), 158 F.T.R. 140; 48 Imm. L.R. (2d) 136 (F.C.T.D.)). Appeal allowed.
APPEARANCES:
Barbara L. Jackman for appellant.
Marissa B. Bielski for respondent.
SOLICITORS OF RECORD:
Jackman, Waldman & Associates, Toronto, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Evans J.A.:
A. INTRODUCTION
[1] The appellant, Nasser Sadeghi, a citizen and resident of Iran, applied at the Canadian Embassy in Damascus, Syria, for a visa to enter Canada as a landed immigrant in the independent category. Although he obtained 72 units of assessment, two more than are normally required for a positive decision, his application was refused.
[2] The visa officer who had interviewed Dr. Sadeghi recommended to a senior immigration officer, who concurred in the recommendation, that the discretion conferred by subsection 11(3) of the Immigration Regulations, 1978 [SOR/78-172] be exercised negatively. Paragraph 11(3)(b) authorizes a visa officer to reject an application when, in the opinion of the officer that is concurred in by a senior immigration officer, there are good reasons why the number of units of assessment awarded to a person do not accurately reflect the applicant’s chances of becoming successfully established in Canada. It is settled law that, for the purpose of this provision, successful establishment means successful economic establishment: Chen v. Canada (Minister of Employment and Immigration), [1995] 1 S.C.R. 725, adopting the reasons of Strayer J. (as he then was), [1991] 3 F.C. 350 (T.D.), and of Robertson J.A., [dissenting] [1994] 1 F.C. 639 (C.A.).
[3] Dr. Sadeghi made an application for judicial review to have the refusal to issue a visa set aside on the ground that the visa officer had not complied with the duty of fairness in taking into consideration certain factors when exercising her discretion under paragraph 11(3)(b) without first affording him a reasonable opportunity to address them. In addition, counsel submitted that the visa officer had erred in law by “double counting” under paragraph 11(3)(b) factors, including his “limited practical experience”, that had already been assessed under Schedule 1 of the Regulations.
[4] The application for judicial review was dismissed: ((1998), 158 F.T.R. 140 (F.C.T.D.)). The Motions Judge held that, since applicants for a visa are responsible for putting before the visa officer any information that would support their application, the officer was not required to indicate to Dr. Sadeghi her concern that, since he had no professional contacts in Canada, and had made no preparations for his move to Canada, he was likely to find it particularly difficult to find employment in Canada. This was not a case like Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.), where the officer had relied on information from an external source, which fairness obliged him to disclose. The Motions Judge also held that the factors taken into account by the officer were relevant to his likely success in establishing himself economically and did not constitute “double counting”.
[5] The Motions Judge certified the following question [at pages 145-146] under subsection 83(1) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 73)]:
Is it an error of law for a visa officer to award full points for experience under Factor 3 of Schedule 1 to the Immigration Regulations and to consider this same experience as “limited practical experience” under s. 11(3)(b) of the Immigration Regulations?
Since Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 it has been clear that on an appeal this Court is not restricted to answering the question certified by the Motions Judge. Conversely, the Court is not obliged to answer the question certified when it turns out to be inappropriate or not necessary for the disposition of the appeal: Canada (Minister of Citizenship and Immigration) v. Hundal (1996), 206 N.R. 184 (F.C.A.); Wong v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 377 (F.C.A.).
B. FACTUAL BACKGROUND
[6] Dr. Sadeghi was born in 1936. Since 1967 he has been a professor of chemistry at the University of Tehran; his doctorate is from Sorbonne University and he had post-doctoral experience at Brunel University in England. He is the author or translator of a significant number of articles, conference papers and books that have been published in Iran, various European countries and in Japan; most date from the 1960s and 1970s. In addition, since the 1980s he has been a part-time consultant to industry and to the Iranian Ministry of Industry on matters within his professional expertise.
[7] He applied to come to Canada as an “analytical chemists/researcher consultant”, and was interviewed by a visa officer in Damascus. He received a letter from the officer, dated October 30, 1997, informing him that his application had been unsuccessful because he had been awarded 67 units of assessment, three short of the 70 normally needed by a person applying in the independent category. The units of assessment were broken down as follows:
| Age |
00 |
| Occupation |
01 |
| Specific Vocational Preparation |
18 |
| Experience |
08 |
| Arranged Employment |
00 |
| Demographic Factor |
08 |
| Education |
16 |
| English |
06 |
| French |
06 |
| Relatives |
00 |
| Suitability |
04 |
| Total |
67 |
[8] In a second letter, dated January 5, 1998, the visa officer acknowledged a mistake in the previous calculation of points which had not given Dr. Sadeghi the additional 5 units of assessment to which he was entitled for having assisting relatives in Canada. This brought the total number of points to 72, two more than the 70 normally needed for a visa.
[9] However, he was also informed that his application was still unsuccessful because the visa officer had exercised her discretion under subsection 11(3) against the applicant, on the grounds of his “limited knowledge of Canada (regarding particularly the employment conditions in Canada)”, “limited practical experience”, “lack of professional contacts in Canada,” and “lack of preparedness to go to Canada.” The officer also noted that Dr. Sadeghi did not have arranged employment in Canada, which would have overcome these difficulties.
[10] The appellant was interviewed before the first letter was written, but not afterwards. It is apparent from the visa officer’s CAIPS [Computer Assisted Immigration Processing System] notes, and Dr. Sadeghi’s affidavit is to much the same effect, that at the interview the visa officer asked him questions about important Canadian cities, which he answered correctly. The officer noted that he had “some general knowledge”, presumably about Canada.
[11] In addition, she asked whether at his age he would be able to find employment in Canada and expressed concern about his limited practical experience in his field. Dr. Sadeghi replied that he was confident that with his experience he would have no difficulty in obtaining work in Toronto or, if not there, elsewhere in Canada. The visa officer recorded in her CAIPS notes that “he has not demonstrated exceptional initiative in finding out about starting a career in Canada at 62 years of age.”
[12] The next entry in the CAIPS notes was on December 14, 1997, after Dr. Sadeghi’s lawyer had asked that he be given an extra 5 points as an assisted relative; a sister-in-law and her husband had recently become permanent residents in Canada and lived in Toronto. The visa officer recorded that, since he now had 72 points, she was going to recommend a negative exercise of discretion because he “showed no initiative in preparing for work and life in Canada at 60 years of age. I was generous in assigning him 6 points for English.” She concluded the entry by saying that “most experience is as professor for last 30 years and as consultant and director establishing R& D.”
[13] The senior immigration officer who considered the recommendation agreed with it: Dr. Sadeghi would “face serious difficulties in establishing himself and his family in Canada” because of “his lack of preparation for immigration, his age and the narrow focus of his experience.” The senior immigration officer instructed the visa officer to send out a second refusal letter, acknowledging the mistake and setting out the bases for the refusal on discretionary grounds.
C. ISSUES AND ANALYSIS
Issue: Was it a breach of the duty of fairness for the visa officer, when exercising her discretion under paragraph 11(3)(b), to take into consideration the appellant’s limited knowledge of employment conditions in Canada, “lack of professional contacts in Canada” and “lack of preparedness to go to Canada” as indicative of his inability to establish himself successfully in Canada, even though she had not expressly raised these concerns with him so that he could respond?
[14] It is important to emphasize the particular context in which this question of procedural fairness arises. Paragraph 11(3)(b) is an extraordinary power intended for exceptional cases, and does not provide visa officers with a general discretion to revisit their assessment under the specific selection criteria or to support a view that the applicant does not in some way quite “measure up”: see Chen, supra, [1991] 1 F.C. 350 (T.D.), at page 363. The important statutory purpose served by the requirement that independent applicants for permanent residence visas be assessed in accordance with the prescribed statutory selection criteria is to ensure a certain objectivity and uniformity in decision-making by visa officers.
[15] Hence, in exercising the power conferred by paragraph 11(3)(b) the visa officer made a discretionary decision depriving the appellant of his legitimate expectation that, having satisfied the specific statutory selection criteria, most of which are geared towards assessing an applicant’s prospects for becoming economically established in Canada, he would be issued with a visa, unless he was found inadmissible under subsection 19(1) [as am. by S.C. 1992, c. 49, s. 11; 1995, c. 15, s. 2; 1996, c. 19, s. 83] of the Immigration Act. Decisions removing a person’s legitimate expectation of receiving a benefit typically attract greater procedural protection than those where the discretion is at large.
[16] In this context I note that, in this case, the officer’s observation in her CAIPS notes that she may have been too generous in her assessment of Dr. Sadeghi’s proficiency in the English language may indicate that she fell into the error of thinking that she could use paragraph 11(3)(b) to revise her evaluation when it became apparent that he had more than 70 points.
[17] In order to ensure that visa officers base their opinion that there are good reasons for thinking that the points evaluation does not adequately reflect an applicant’s chances of becoming successfully established in Canada, it is important that they raise their concerns with the individual in a way that enables her or him to respond, at least when they are of the kind on which the applicant may be able to shed some useful light. Accurate decision-making is particularly important when an adverse decision may deprive a person of her legal rights or, as here, a legitimate expectation of receiving a statutory benefit.
[18] The burden normally borne by visa applicants to put their “best foot forward” by placing before the visa officer all the information necessary to demonstrate that they satisfy the selection criteria reduces the obligation of visa officers to advise applicants, as a matter of procedural fairness, of whatever concerns they may have about the adequacy of the application. However, once an applicant has been awarded the units of assessment normally required for a visa by persons applying in the relevant category, it will often be unfair to expect the applicant to anticipate the grounds on which a visa officer may base a negative discretionary decision.
[19] To revert to the facts of the instant case, it is important to note that the visa officer seems only to have put her mind specifically to subsection 11(3) some two months after she interviewed the applicant, when it became apparent that he should have been awarded additional points that gave him in excess of 70. In my opinion, Dr. Sadeghi could not reasonably have anticipated at the interview that the officer would subsequently be concerned about whether he had professional contacts in Canada, or that this was a matter that he should address, particularly since the only question that she did put to him about difficulties that he might encounter in finding employment was about his limited practical experience as a chemist. Nor is this a point that Dr. Sadeghi’s lawyer could reasonably have been expected to cover in her written submissions in support of his application
[20] Hence, even though the officer did not rely on any undisclosed “extrinsic” evidence, it is appropriate in the circumstances of this case to apply the broader version of the Muliadi, supra, principle. I do not accept, as the Motions Judge did, that Muliadi applies only to disputes that involve the determination of rights, not the exercise of discretion, at least when, as here, the discretionary decision is based on findings of fact about the individual and results in the deprivation of a legitimate expectation.
[21] Accordingly, I conclude that, as a matter of procedural fairness, the visa officer ought explicitly to have asked the appellant whether he had professional contacts in Canada, before using this as a basis for denying him the visa for which he had prima facie qualified under the points system.
[22] Since the potential relevance of the exercise of discretion under subsection 11(3) only seems to have come into focus after the interview and the first letter of refusal, it was necessary for the visa officer to have invited him back for another interview or communicated in writing, explained her concerns to him and permitted him to respond. This does not seem to me an unduly onerous requirement in the circumstances.
[23] Similar fairness considerations apply to the visa officer’s reliance on the appellant’s lack of preparedness to come to Canada and on his limited knowledge of employment conditions in Canada as reasons for the negative exercise of her discretion under paragraph 11(3)(b). These were not matters that were put to him at the interview, either expressly or implicitly.
D. CONCLUSION
[24] Accordingly, the decision not to issue a visa to the appellant was vitiated by a breach of the duty of fairness: the visa officer did not provide the “thorough and fair assessment” (Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (T.D.), at page 82) of the discretionary factors to which he is in law entitled. Since this is sufficient to dispose of the appeal, it is not necessary to address the issue of “double counting” that was raised by the appellant.
[25] The appeal will be allowed, the visa officer’s decision set aside and the matter remitted to a different visa officer to determine whether there are good reasons for exercising the discretion conferred by subsection 11(3)(b).
Stone J.A.: I agree.
Rothstein J.A.: I agree.