Chen v. Canada ( Minister of Citizenship and Immigration )
IMM-2225-98
Evans J.
16/4/99
15 pp.
Application for judicial review of visa officer's refusal to issue applicant permanent resident visa (awarded only 49 units of assessment)-Application for visa filed in April 1997, assessed at Regional Program Centre (RPC) in Buffalo by visa officer according to National Occupational Classification (NOC) in October 1997 and refused in March 1998-Applicant arguing since visa application filed before May 1997, should have been assessed by reference to Canadian Classification and Dictionary of Occupations (CCDO)-Issues whether visa officer had jurisdiction to determine visa application; whether visa officer erred in failing to consider exercise of discretion conferred by Regulations, s. 11(3); whether visa officer erred in assessment of education factor; whether visa officer erred in law in refusing to assess applicant's work experience because did not have formal training for occupation of head chef prescribed for Special Vocational Preparation Factor in Schedule I; whether visa officer erred in law in calculating units of assessment under Education and training Factor in NOC by basing decision on computer generated data-Application dismissed-(1)Visa officer did not exceed jurisdiction by determining application more than 12 weeks after filing-Would be highly anomalous if failure to comply with non-statutory time period were to invalidate refusal to issue visa as, in absence of prejudice to person concerned, failure to observe statutory time limit does not usually invalidate decision made outside period-Fact applicants asked on application form preferred post for processing of application not creating contractual right to have application processed at designated post-(2) Evidence of self-sufficiency in country of origin or, as herein, in United States, will not trigger exercise of positive discretion-Not function of Court to determine whether visa officer gave sufficient weight to fact applicant has been economically self-sufficient in U.S.-Matter for exercise of statutory discretion entrusted to visa officer in light of complete file-Visa officer's discretion in Regulations, s. 11(3) residual in nature, and should be decisive only in cases presenting unusual facts, or where, contrary to case herein, applicant has come close to obtaining 70 units of assessment-On evidence, visa officer's decision not to exercise positive discretion not unreasonable-(3) Failure of visa officer to alert applicant to need to provide documentation establishing successful completion of cooking school program breach of duty of fairness-However, procedural deficiency not justifying quashing refusal to issue visa as points involved (extra 3 units of assessment) would still leave applicant long way short of 60 points needed to obtain even interview-(4) Visa officer did not err in approach to assessment of special vocational preparation (SVP) factor-Rationale for evaluating applicants under this factor to enable assessment to be made of whether they have kind of qualifications normally regarded by employers in Canada as necessary for occupation in question-Occupation of head chef requiring four years of formal training-(5) Visa officer did not err in law in following methodology established by Immigration Canada for enabling visa officers to make calculations for converting CCDO assessments to NOC assessments-Immigration Regulations, 1978, SOR/78-172, s. 11(3).