A-240-89
John Uy (Appellant)
v.
Minister of Employment and Immigration and the
Secretary of State for External Affairs (Respond-
ents)
INDEXED AS: UY v. CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) (CA.)
Court of Appeal, Mahoney, Stone and Desjardins
JJ.A.—Toronto, December 13, 1990; Ottawa,
January 8, 1991.
Immigration — Appeal from trial judgment refusing to
quash visa officer's refusal of permanent residence application
— Application for admission indicating medical technologist
as intended occupation, although medical doctor in Philippines
and resident in paediatrics in U.S.A. — Visa officer not
believing applicant prepared to work as technologist — No
assessment in respect of that. occupation — Trial Judge hold
ing proper exercise of discretion under Immigration Regula
tions, 1978 s. 11(3) — Appeal allowed — Refusal to assess
error in law — Contrary to Immigration Act, 1976 ss. 6 and
8(1) and excess of jurisdiction — General discretion under s. 9
to issue visa to immigrant awarded at least 70 units of
assessment subordinated to particular discretion under s. 11(3)
where, notwithstanding award of 70 units, visa officer of
opinion units not reflecting chances of becoming successfully
established in Canada — Discretion not exercised alone as
written reasons, approved by senior Immigration officer,
required.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 52(b)(î).
Immigration Act 1976, S.C. 1976-77, c. 52, s. 6(1).
Immigration Regulations, 1978, 1978 SOR/78-172, ss.
8(1)(a) (as am. by SOR/85-1038, s. 3), (b), 9(1)(a) (as
am. by SOR/83-675, s. 3), (b) (as am. by SOR/85-
1038, s. 4), 11(3) (as am. by SOR/81-461, s. 1).
CASES JUDICIALLY CONSIDERED
REVERSED:
Uy v. Minister of Employment and Immigration
(1989), 27 F.T.R. 178; 8 Imm. L.R. (2d) 237 (F.C.T.D.).
COUNSEL:
Cecil L. Rotenberg, Q.C., and Diane C. Smith
for appellant.
Marlene I. Thomas and P. Christopher Parke
for respondents.
SOLICITORS:
Rotenberg, Martinello, Don Mills, for appel
lant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
MAHONEY J.A.: This is an appeal from a
reported decision of the Trial Division' which
refused certiorari quashing the refusal by a visa
officer in San Francisco of the appellant's
independent application for permanent residence
in Canada, and of mandamus requiring the
respondents to consider and dispose of the applica
tion according to law. The appellant had been a
qualified medical doctor in the Philippines and was
a resident in paediatrics in the United States when
he applied for admission to Canada as a medical
technologist.
The visa officer refused to assess him for admis
sion to Canada in respect of that occupation. After
reviewing the appellant's work and educational
histories, the visa officer stated his reasons as
follows:
Notwithstanding this ten years' history continuing from medi
cal school to internship and residency you now wish me to
believe that you are prepared to abandon all of the training you
have had over the past ten years, with the exception of an 18
month period as a medical technologist, to work as a medical
technologist in Canada. Frankly, I am not prepared to accept
this in the light of the circumstances as described above. On
that basis, I do not believe you are prepared to follow the task
of being a medical technologist in Canada. On the contrary, I
believe your dedication and perseverance to complete your
training in pediatric[sic] residency will be renewed in Canada
until you reach this goal.
Relevant to this proceeding are subsection 6(1)
of the Immigration Act 1976 [S.C. 1976-77, c. 52]
and paragraphs 8(1)(a) [as am. by SOR/85-1038,
' (1989), 27 F.T.R. 178.
s. 3] or (b), 9(1)(a) [(as am. by SOR/83-675, s.
3)] and (b)(i) [as am. by SOR/85-1038, s. 4] and
11(3)(b) [(as am. by SOR/81-461, s. 1)] of the
Immigration Regulations, 1978 [SOR/78-172].
6. (1) Subject to this Act and the regulations, any immigrant
including a Convention refugee, a member of the family class
and an independent immigrant may be granted landing if he is
able to establish to the satisfaction of an immigration officer
that he meets the selection standards established by the regula
tions for the purpose of determining whether or not an immi
grant will be able to become successfully established in Canada.
8. (1) For the purpose of determining whether an immigrant
and his dependants, other than a member of the family class or
a Convention refugee seeking resettlement, will be able to
become successfully established in Canada, a visa officer shall
assess that immigrant or, at the option of the immigrant, the
spouse of that immigrant,
(a) in the case of an immigrant, other than an immigrant
described in paragraph (b), (c) or (e), on the basis of each of
the factors listed in column I of Schedule I;
(b) in the case of an immigrant who intends to be a self-
employed person in Canada, on the basis of each of the
factors listed in column I of Schedule I, other than the factor
set out in item 5 thereof;
9. (1) Where an immigrant other than a member of the
family class, an assisted relative or a Convention refugee
seeking resettlement makes an application for a visa, a visa
officer may, subject to section 11, issue an immigrant visa to
him and his accompanying dependants, if
(a) he and his dependants, whether accompanying depend
ants or not, are not members of any inadmissible class and
otherwise meet the requirements of the Act and these Regu
lations; and
(b) on the basis of his assessment in accordance with
section 8
(i) in the case of an immigrant other than a retired
person, an entrepreneur, an investor or a provincial
nominee, he is awarded at least 70 units of assessment,
11.
(3) A visa officer may
(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 success
fully established in Canada and those reasons have been sub
mitted in writing to, and approved by, a senior immigration
officer. [Emphasis added.]
In dismissing the application, the learned Trial
Judge held [at page 1821:
It is proper and necessary for visa officers to consider
whether at the time of the interview the applicant appears
prepared to follow his intended occupation in Canada. Since
the Regulations under ss. 9 and 11(3) empower the visa officer
to refuse even those applicants who have achieved the necessary
number of points, three things follows: the first is that Parlia
ment has recognized this as a consideration that may outweigh
other factors, including the acquisition of the requisite number
of points in every category; second, if the officer enjoys the
discretion to refuse those who have amassed a high number of
points, it follows even more strongly that he has the discretion
to do so where the point total is below the required minimum;
third, since Parliament has given the officer specific discretion
in the Regulations to which I have just referred, his actions
here are entirely within his jurisdiction.
He went on to conclude that there had been no
denial of natural justice or failure to treat the
appellant fairly.
With the greatest of respect, the learned Trial
Judge erred in law in basing his decision on an
exercise of discretion under subsection 11(3). The
evidence is that the visa officer refused to assess
the appellant at all. There is no suggestion that he
had assessed the appellant for the occupation of
medical technologist, awarded him 70 or more
units (as one may well speculate he might) and
then invoked subsection 11(3) by reason of his
conclusion as to the appellant's intentions.
In my opinion, section 6 of the Act requires a
visa officer to assess any immigrant who applies
for landing in the manner prescribed by the Act
and Regulations. Subsection 8(1) of the Regula
tions imposes, in mandatory terms, a duty to assess
and I find nothing in either the Act or Regulations
which would permit a visa officer to refuse to
assess in respect of the occupation or alternative
occupations which the immigrant (or his or her
spouse) states it is intended be pursued in Canada.
The visa officer erred in law and exceeded his
jurisdiction by refusing to assess the appellant for
admission to Canada as a medical technologist.
Further, in my opinion, the general discretion
given a visa officer by subsection 9(1) of the
Regulations, that a visa may be issued to an
immigrant who, inter alla, is awarded at least 70
units, must be subordinated to the particular dis
cretion given by subsection 11(3) where, notwith
standing the award of at least 70 units, the visa
officer is of the opinion that those units do not
reflect the chances of the particular immigrant
becoming successfully established in Canada. He
has a discretion but the Governor in Council has
prescribed that he cannot exercise it alone. The
reasons for the opinion must be committed to
writing and submitted to and approved by a senior
immigration officer.
I would allow the appeal with costs and, pursu
ant to subparagraph 52(6)(i) of the Federal Court
Act [R.S.C., 1985, c. F-7], would render the judg
ment that the Trial Division should have given by
quashing the decision of the visa officer, dated
July 8, 1987, refusing the appellant's application
for admission to Canada as an immigrant and
ordering that it be reconsidered de novo by a
different visa officer.
STONE J.A.: I agree.
DESJARDINS J.A.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.