T-2640-91
Shui-Man Lam (Applicant)
v.
Minister of Employment and Immigration and
Secretary of State for External Affairs
(Respondents)
INDEXED AS: LAM V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (Ti).)
Trial Division, Teitelbaum J.—Vancouver, November
26 and 29, 1991.
Immigration — Practice — Application for immigrant visa
rejected by visa officer without interview — Reasons for rejec
tion set out in letter from Canadian Consulate General —
Number of units of assessment required to qualify as self-
employed immigrant under Immigration Regulations, 1978, s.
9(1)(b)(i) not met even if applicant awarded maximum 10 units
for personal suitability after interview — Whether visa officer
having discretion as to granting interview — Parliament's
intention in enacting Immigration Act explained — Interview
necessary to form valid opinion under Regulations, s. 11(3)
and to determine whether to allow additional 30 units of
assessment under s. 8(4) — Decision by visa officer not to
grant interview erroneous as no discretion given to him by
Regulations, Factor 9, Schedule I — Use of word "shall" in
Factor 9 obligation to hold interview to assess applicant's
qualities — Statutory duty not met.
Judicial review — Prerogative writs — Certiorari to quash
visa officer's decision denying application for immigrant visa
and mandamus compelling respondents to reconsider applica
tion according to statutory direction — Visa officer rejecting
application for permanent residence without interview as num
ber of units of assessment to qualify as self-employed immi
grant not met — Arguing applicant unable to meet minimum
requirement of 70 units of assessment even if awarded maxi
mum 10 units for personal suitability after interview — No dis
cretion given to visa officer by Immigration Regulations, Fac
tor 9, Schedule 1 as to granting interview — Officer bound to
follow procedure set out in statute — Statutory duty of holding
interview to assess applicant's qualities not complied with —
Limited circumstances set forth in Factor 9 applicable herein
— Application allowed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467.
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 1.
Immigration Act, R.S.C., 1985, c. I-2, s. 9(2).
Immigration Regulations, 1978, SOR/78-172, ss. 8
(1)(a),(c) (as am. by SOR/85-1038, s. 3), (2),(4) (as am.
idem), 9(1)(b)(i) (as am. idem, s. 4), 11(3) (as am. by
SOR/81-461, s. 1), Schedule I.
CASES JUDICIALLY CONSIDERED
APPLIED:
Yang v. Canada (Minister of Employment & Immigration)
(1989), 36 Admin. L.R. 235; 27 F.T.R. 74; 8 Imm. L.R.
(2d) 48 (F.C.T.D.); Canadian Wildlife Federation Inc. v.
Canada (Minister of the Environment), [1989] 3 F.C. 309;
[1989] 4 W.W.R. 526; (1989), 37 Admin. L.R. 39; 3
C.E.L.R. (N.S.) 287; 26 F.T.R. 245 (T.D.); 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:
Ho v. Minister of Employment & Immigration (1989), 27
F.T.R. 241; 8 Imm. L.R. (2d) 38 (F.C.T.D.).
COUNSEL:
Gary A. Letcher and Robin P. McQuillan for
applicant.
A. D. Louie for respondents.
SOLICITORS:
Edwards, Kenny & Bray, Vancouver, for appli
cant.
Deputy Attorney General of Canada for respon
dents.
The following are the reasons for order rendered in
English by
TEITELBAUM J.: This is an application for the issu
ance of a writ of certiorari quashing the decision
made on June 17, 1991 by the Immigration Section of
the Canadian Consulate General in Seattle, U.S.A.
which rejected the application of the applicant for an
immigrant visa; and for a writ of mandamus compel
ling the Minister of Employment and Immigration
and the Secretary of State for External Affairs to
reconsider the applicant's application for an immi
grant visa in accordance with the statutory direction.
As stated by the applicant, the grounds of the
application are:
... that the Visa Officer's decision denying the application of
the Applicant for an immigrant visa was made in a patently
unreasonable and arbitrary manner in excess of, and without,
jurisdiction and is in breach of a duty of fairness and in disre
gard of the requirements imposed by statute.
There appears to be no dispute as to the facts. The
facts are, as stated by the applicant in his affidavit,
and outlined in his motion record:
1. The Applicant Shui-Man Lam, is a resident of Hong Kong.
He is married to Fung-Ping Yuen. They have no children.
2. The Applicant is currently the general manager and a partner
in a Hong Kong company called South . Asia Trading Company
which is in the business of importing and distributing fish pur
chased from China.
3. The Applicant's duties and responsibilities in respect of his
position with South Asia Trading Company are to oversee the
company's day-to-day operations, ensure the effective distribu
tion and sales of the product and ensure that the daily financial
obligations of the company are met.
4. Prior to his involvement with the South Asia Trading Com
pany, the Applicant was a partner and general manager of Yau
Fai Trading Co. from March 1988 until September 19, 1990.
His duties and responsibilities in that position were similar to
those of his position with South Asia Trading Company.
5. Prior to his involvement with Yau Fai Trading Co., the
Applicant was employed for six years as a construction super
intendent for Po Kee Works Co. Ltd. in Hong Kong. His duties
in that position included general construction, the supervision
of staff and tradesman [sic] and inventory control.
(see affidavit of Lam-Chow Chui under tab 4 of
applicant's motion record)
6. The Applicant's net worth is currently approximately
$201,200.00 CDN.
7. The Applicant visited Canada in August of 1990 to attend a
business seminar in Vancouver, British Columbia. He has a
sister, Joan Lai, who is a permanent resident of Canada and
resides in Coquitlam, British Columbia.
8. In December 1990, the Applicant applied to the Canadian
Consulate General in Seattle, Washington for permanent resi
dence in Canada.
(Exhibit "A" to applicant's affidavit)
9. It was the Applicant's expressed intention in applying for
permament residence in Canada that he would start a construc
tion business in the town of Squamish, British Columbia. Prior
to making the application, the Applicant investigated the pos
sibilities of establishing such a business in Squamish and
resolved that such a business would likely be a success given
his experience in the construction industry and the business
possibilities in Squamish that the Applicant had investigated
during his 1990 visit to Squamish.
10. In support of the Applicant's application, the Applicant had
financial statements prepared for his proposed business which
set out a two-year projection for the revenues and expenses of
the company.
(part of exhibit "A")
11. By a letter dated June 17, 1991, the Canadian Consulate
General rejected the Applicant's application for permanent res
idence without ever affording him an interview. The reasons
for the Applicant's rejection as set out in the said letter were as
follows:
(a) Lack of English language skills;
(b) No business experience as a self-employed individual;
(c) No evidence of qualifications or experience in the con
struction industry in a "North American milieu";
(d) Lack of evidence to support his statement that he was
employed as construction superintendent for six years;
(e) The construction industry in British Columbia is cur
rently suffering an economic downturn and thus no eco
nomic benefit would accrue to Canada from the establish
ment of a construction [sic] in the area; and
(f) His personal liquid financial assets are inadequate for the
successful establishment of a business in Canada ....
(Exhibit "B" to applicant's affidavit)
I believe it necessary to reproduce the letter for
warded to the applicant on June 17, 1991 in relation
to his application for an immigrant visa (Exhibit "B"
applicant's affidavit):
17 June 1991
Mr. Shui-Man Lam
Flat 1, 21/F, Block B
New Town Mansion
Tuen Mun, New Territories
Hong Kong
Dear Mr. Lam,
I write in reference to your application for permanent resi
dence status in Canada as a Self-employed applicant.
The Canada Immigration Act and Regulations define a Self-
employed immigrant as an individual who intends and has the
ability to establish or purchase a business in Canada that will
create an employment opportunity for himself and will make a
significant contribution to the economy or the cultural or artis
tic life of Canada. In evaluating a self-employed application,
we carefully review the individuals previous history of self-
employment and the prospects for their self-employment in
Canada according to the above definition. In addition to these
factors, the applicant must have the resources to successfully
establish themselves and their family in Canada and must be of
good health and good character.
After a full and careful consideration of all factors in your
application, I must, with regret, conclude that you are unable to
meet the requirements to qualify as a self-employed immigrant
to Canada.
Specifically, your lack of English language skills makes it
unlikely that you could successfully establish and operate a
self-employed business venture in Canada. You have no busi
ness experience as a self-employed individual in the past.
Although you intended to establish a business "engaged in
construction and general contracting" there is no evidence as to
your qualifications or experience in the construction industry
in a North American milieu. We note that your formal training
was as a jewelry apprentice and that you claimed six years of
experience as a construction superintendent is unsupported.
The construction industry in the area of British Columbia in
which you proposed to establish is currently suffering an eco
nomic downturn, due to the prolonged recession in Canada. No
significant economic benefit would accrue to Canada from the
establishment of any new enterprise in this area. Finally, your
personal liquid financial assets are inadequate for the establish
ment of any business enterprise in Canada and the successful
establishment of you and your spouse.
I must, therefore, refuse your application at this time. Thank
you for your interest in Canada. If, at some future date, you
wish to again be considered for immigration to Canada it will
be necessary for you to submit a complete new application and
processing fee. We would strongly suggest that any such appli
cation be submitted to the Canadian mission responsible for
your country of permanent residence.
Sincerely,
Nigel H. Thomson
Consul
The respondents filed the affidavit of Nigel H.
Thomson, the visa officer who refused the applicant's
application. I believe it is necessary to reproduce part
of Mr. Thomson's affidavit as it outlines the proce
dure Mr. Thomson followed in deciding to refuse the
applicant's application:
3. On 28 January, 1991 an application for permanent resi
dence in Canada (IMM8) for the Applicant and his wife,
along with supporting documentation, was received by the
Immigration Section of the Canadian Consulate Gen
eral....
4. Mr. Lam requested that his application be assessed in the
self-employed category for immigration, with the
expressed intention to invest approximately 85,000 Cana-
dian dollars in a new enterprise at Squamish, B.C. The
business was to be engaged in construction and general
contracting. The primary market Mr. Lam intended to pur
sue was in the Squamish and Whistler area.
5. Pursuant to Paragraph 2(1) of the Immigration Regula
tions, in order to meet the definition of self-employed per
son, the category in which he was applying, Mr. Lam was
required to demonstrate that he had the ability to establish
or purchase a business in Canada that would create an
employment opportunity for himself and would make a
significant contribution to the economy or the cultural or
artistic life of Canada. In accordance with the Regulation
8(1)(b), I assessed Mr. Lam's application 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 which was not rel
evant to this application.
6. Because Mr. Lam proposed to establish a business
engaged in construction and general contracting, I
assigned the occupation of Foreman, Construction. He was
assessed according to the requirements for this occupation
as specified in the Canadian Classification and Dictionary
of Occupations (CCDO). The CCDO, inter alia, provides
an analysis of occupations and lists the Specific Vocational
Preparation (SVP) (measured by the amount of time
needed to acquire the information, techniques, and skills
for average work performance in a specific occupation).
The CCDO code for Foreman, Construction was 8780-
114. (Exhibit C refers.) The occupational demand factor
for this [sic] construction occupations, including Foreman,
Construction, was zero. The appropriate pages of the
Occupational Demand List are attached as Exhibit D (note
that an absence of an entry on this list indicates that the
CCDO occupation is to be accorded zero demand factor).
The SVP assigned for the occupation was 8 which indi
cated that over 4 years up to [sic] including 10 years of
training were required. (Exhibit E refers.) Pursuant to
Schedule 1 to the Immigration Regulations, such training
equated to 13 units of assessment. I assigned three units of
assessment for English (one point each for speaking, writ
ing and reading English "with difficulty"). Therefore,
Mr. Lam received the following units of assessment:
Age 10
Occupational Factor 0
Specific Vocational Prepara
tion 13
Experience 4
Arranged Employment N/A
Demographic Factor 5
Education 9
English 3
French 0
7. Further, in accordance with Regulation 8(4), I reviewed
Mr. Lam's application to determine if he would be able to
become successfully established in his occupation or busi
ness in Canada as a self-employed person. In particular, I
considered the following specific factors as presented in
Mr. Lam's application:
— Mr. Lam indicated that he had limited ability in the
English language.
— Mr. Lam did not provide verifiable evidence that he
had experience as a self-employed individual in the
construction or related fields.
— His application did not contain verifiable evidence
to support his claim of six years of work experience
as a Construction Superintendent in Hong Kong.
— Mr. Lam indicated on his application that he had
apprenticed as a jeweller from 1978 to 1981 but did
not indicate any formal apprenticeship, schooling,
training or certification in Hong Kong in any con
struction trade or related occupation.
— I noted that the General and Designated Occupation
List accorded all construction occupations zero units
of occupational demand.
8. I also considered the money which was available to Mr.
Lam. Mr. Lam indicated a total personal net worth of
162,172 Canadian dollars. I noted that much of this sum
depended on the successful liquidation of his property in
Hong Kong, his principle asset. Based upon my experi
ence in evaluating applications for self-employed persons,
I came to the conclusion that this amount of money would
be inadequate to begin a business in Squamish, British
Columbia and to establish a family of two persons.
9. Considering all of these factors, I determined that Mr.
Lam could not become successfully established in his bus
iness or intended occupation in Canada. I determined that
Mr. Lam did not meet the definition of self-employed per
son and I therefore did not accord Mr. Lam the 30 units of
assessment for self-employment described in Regulation
R8(4). Mr. Lam therefore received a total of 44 units of
assessment.
10. Given this result, Mr. Lam could not have met the mini
mum requirement of 70 units of assessment to qualify as a
self-employed immigrant as required by Regulation
9(1)(b)(i) even if he had been accorded the maximum 10
units of assessment for Personal Suitability after an inter
view. I therefore concluded that no purpose would be
served in calling Mr. Lam for a personal interview and
that Mr. Lam's application was refused.
11. Having considered all aspects of the application, a letter
informing Mr. Lam that the application had been refused
was sent on 17 June, 1991... .
As can be seen in paragraph 10 of Mr. Thomson's
affidavit, Mr. Thomson decided, due to the fact that
the applicant could not have met the minimum
requirement of 70 units of assessment to qualify as a
self-employed immigrant as required by subpara-
graph 9(1)(b)(i) of the Immigration Regulations,
1978 [SOR/78-172 (as am. by SOR/85-1038, s. 4)]
even if he had been accorded the maximum 10 units
of assessment for personal suitability after an inter
view, not to grant the applicant an interview as no
purpose would be served and this, notwithstanding
the wording of Schedule I, Factor 9:
Factors Criteria Max.
Units
9. Personal Suit- Units of assessment 10
ability shall be awarded on the
basis of an interview
with the person to re
flect the personal suita
bility of the person and
his dependants to be
come successfully es
tablished in Canada
based on the person's
adaptability, motiva
tion, initiative, re
sourcefulness and other
similar qualities. [Un-
derlining mine.]
I take this to mean that after an interview with the
prospective immigrant, the officer doing the assess
ment must award up to 10 units depending on his
finding as to the personal suitability of the prospec
tive immigrant to become successfully established
based on the person's qualities. In the event that 10
units, the maximum, are awarded, I take this to mean
that in the opinion of the interviewing officer, he or
she is satisfied that the prospective immigrant has the
personal suitability to become successfully estab
lished in Canada based on the prospective immi
grant's adaptability, motivation, initiative, resource
fulness and other similar characteristics.
It is to be noted that Mr. Thomson, in paragraph 10
of his affidavit states that even if he had awarded the
applicant the maximum 10 units he could not have
qualified as a self-employed immigrant.
Issue
The issue in this case is to determine whether a
person who makes application for a visa as a self-
employed immigrant must be interviewed in order
for the visa officer to properly assess the Factor 9
issue of "Personal Suitability" found in Schedule Ito
the Regulations. The question being, does the visa
officer have the discretion to grant or not grant an
interview?
Applicant's submissions
The applicant submits that the regulatory scheme
pursuant to which Parliament mandates the basis for
immigration decisions is, for the present application,
set out in subsection 9(2) of the Immigration Act,
1976 [S.C. 1976-77, c. 52, s. 1], in subsections 8(2),
8(4) and 11(3) of the Regulations and in Schedule I
of the Regulations.
Counsel for the applicant submits that the appli
cant was not granted an interview. The visa officer
now states that he had determined that Mr. Lam
would not qualify in any event and on that basis,
counsel submits, the visa officer took away the appli
cant's right to an interview. Counsel submits that the
Immigration Act [R.S.C., 1985, c. I-2] provides every
person applying for a visa shall be assessed by a visa
officer and the Regulations provide that a visa officer
shall award units of assessment in accordance with
Schedule I. Schedule I provides that, with respect to
personal suitability, units of assessment shall be
awarded on the basis of an interview and, in this case,
the visa officer chose not to grant an interview.
Counsel now states the visa officer's decision must
now be quashed for his failure to grant the applicant
an interview and that he must be compelled to grant
the applicant an interview. Counsel submits that a
visa officer does not make the rules, he is obligated to
apply the rules. He cannot, counsel submits, decide
not to grant the interview which Schedule I to the
Regulations concerning Factor 9 "Personal Suitabil
ity" states must be granted to an applicant.
In addition to the above submission, counsel states
that the visa officer came to broad sweeping conclu
sions without disclosing the basis for his conclusions.
Counsel submits the visa officer found that the fact of
difficulty with the English language would be a seri
ous impediment to the applicant in the construction
industry.
Counsel submits that the Immigration Act is
designed to promote immigration and it should be
given an interpretation appropriate to that goal.
Counsel further submits that a visa officer should
conduct himself fairly. He cannot conduct himself
capriciously. The basis of the visa officer's ability to
decide on all of the matters in issue would have been
assisted had Mr. Lam been granted an interview.
Respondents' submissions
Respondents submit that the visa officer did make
a proper interpretation under the statute and Regula
tions as to whether the applicant was a self-employed
person and that the visa officer directed his mind to
the proper question and that his conclusion was not
patently unreasonable.
Counsel further submits that the assessment pro
cess is a two-stage process and that it is only after an
applicant has passed the first stage, an assessment of
the application, that an interview should be granted.
That is, if the visa officer decides after assessing the
application that an interview is warranted, he or she
would then grant an interview. Counsel submits that
in the case before me there was no purpose to grant
the applicant an interview as even if he were granted
the 10 units for "Personal Suitability", the applicant
could not have achieved the required 70 units.
Furthermore, counsel submits that the word "shall"
found in Factor 9 of Schedule I is not before the
word "interview" but is before the words "be
awarded". This, counsel submits, indicates that the
visa officer "shall" award units not "shall" interview.
I will state immediately that I cannot, with all due
respect to counsel, accept this line of reasoning. If
units "shall be awarded" these units cannot be
awarded unless it is "on the basis of an interview"
with the person.
Discussion
Viewing the facts of this case and in particular the
manner in which the visa officer came to the conclu
sion that the applicant was unable to meet the
requirements to qualify as a self-employed immigrant
to Canada, I believe it necessary to repeat what the
Associate Chief Justice of the Federal Court of
Canada states as to Parliament's intention in enacting
the Immigration Act. In the case of Yang v. Canada
(Minister of Employment & Immigration) (1989), 36
Admin. L.R. 235 (F.C.T.D.), page 237, Mr. Justice
Jerome states:
It is important to bear in mind that Parliament's intention in
enacting the Immigration Act is to define Canada's immigra
tion policy both to Canadians and to those who wish to come
here from abroad. Such a policy cannot exist without complex
regulations, a good many of which appear to be restrictive in
nature, but the policy should always be interpreted in positive
terms. The purpose of the statute is to permit immigration, not
prevent it, and it is the corresponding obligation of immigra
tion officers to provide a thorough and fair assessment in com
pliance with the terms and the spirit of the legislation.[Under-
lining mine.]
This statement as to Parliament's intention in enact
ing the Immigration Act was repeated by the Associ
ate Chief Justice in the case of Ho v. Minister of
Employment & Immigration (1989), 27 F.T.R. 241
(F.C.T.D.), at pages 241-242.
Both the Yang case (A-169-89) and the Ho case
(A-187-89) were appealed to the Federal Court of
Appeal. On May 22, 1990, Mr. Justice Mahoney
denied the appeals for reasons not totally related to
the facts in the case before me.
With the above principle as the base, it becomes
incumbent to examine what occurred in this case.
The applicant filed an application for a visa as a
self-employed immigrant. Subsection 9(2) of the
Immigration Act states:
9....
(2) Every person who makes an application for a visa shall
be assessed by a visa officer for the purpose of determining
whether the person appears to be a person who may be granted
landing or entry, as the case may be.
The visa officer assessed the applicant's applica
tion and concluded that he could award the applicant
44 units. Mr. Thomson also states he reviewed the
application with a view to determine if the applicant
would be able to become successfully established
pursuant to subsection 8(4) of the Regulations and
concluded he could not successfully establish himself
for the reasons given in his affidavit. This conclusion
was reached by the visa officer without an interview.
Section 8 of the Regulations states:
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 fac
tors listed in column I of Schedule I, other than the factor set
out in item 5 thereof;
(c) in the case of an entrepreneur, an investor or a provincial
nominee, on the basis of each of the factors listed in column
I of Schedule I, other than the factors set out in items 4 and
5 thereof;
(d) Revoked SOR/85-1038, s. 3(2);
(e) in the case of a retired person, on the basis of
(i) the location in which the immigrant intends to reside,
(ii) the presence of friends or relatives of the immigrant in
the locality in which he intends to reside, and
(iii) the potential of the immigrant for adjusting to life in
Canada, his motivation and whether he has sufficient
financial resources to support himself and his accompany
ing dependants without receiving any financial social
benefits that may be paid to him by any department or
agency of a municipal, provincial or federal government
in Canada.
(2) A visa officer shall award to an immigrant who is assessed
on the basis of factors listed in column I of Schedule I the
appropriate number of units of assessment for each factor in
accordance with the criteria set out in column II thereof oppo
site that factor, but he shall not award for any factor more units
of assessment than the maximum number set out in column III
thereof opposite that factor.
(3) Revoked: SOR/85-l038, s. 3(3).
(4) Where a visa officer assesses an immigrant who intends to
be a self-employed person in Canada, he shall, in addition to
any other units of assessment awarded to that immigrant,
award 30 units of assessment to the immigrant if, in the opin
ion of the visa officer, the immigrant will be able to become
successfully established in his occupation or business in
Canada.
As I have stated, the visa officer in his affidavit
states that even if he had allowed 10 units for Factor
9 of Schedule I to the Regulations, Mr. Lam would
not have attained the 70 units required. I have also
stated that by allowing 10 units for Factor 9, it is
implied that the applicant is an individual with all of
the qualities listed in Factor 9, that is, he is a person
who can adapt, is a person who is motivated, is a per
son who has initiative, is a person who is resourceful
and is a person who has other similar qualities. Sub
section 8(4) of the Regulations allows the visa officer
to assess an immigrant who intends to be a self-
employed person in Canada. In addition to the other
units awarded, an additional 30 units of assessment
may be awarded if, in the opinion of the visa officer,
the immigrant will become successfully established
in his occupation or business.
I am satisfied that by not having granted the appli
cant an interview, the visa officer was not in a posi
tion to determine whether or not he would have
allowed the 30 units of assessment in subsection 8(4)
of the Regulations in that, it is assumed that this
applicant has all of the qualities mentioned in Factor
9 of Schedule I to the Regulations.
In addition, subsection 11(3) of the Immigration
Regulations, 1978 permits a visa officer to issue a
visa even if the applicant is not awarded the neces
sary number of units under certain conditions:
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 sec
tion 9 or 10 or who does not meet the requirements of sub
section (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 sec
tion 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.
Taking the facts in this case as they are, that is, that
the present applicant has all of the qualities men
tioned in Factor 9 of Schedule I to the Regulations,
how can the visa officer form a valid opinion under
subsection 11(3) of the Regulations without an inter
view? I believe that he could not do so.
I am satisfied that the visa officer should have
granted the applicant an interview but does this mean
to say that an interview must be granted according to
the Regulations and to the Act?
I am satisfied that the visa officer erred in deciding
not to grant the applicant an interview pursuant to
Factor 9 of Schedule Ito the Regulations as I believe
the visa officer has no discretion but to grant the inter
view mentioned in Factor 9. It is incumbent upon the
visa officer to follow the procedure set out in the stat
ute.
In the case of Canadian Wildlife Federation Inc. v.
Canada (Minister of the Environment), [1989] 3 F.C.
309 (T.D.), the Court held that by not applying the
provisions of the Environmental Assessment and
Review Process Guidelines Order (EARP Guidelines
Order), the Minister failed to comply with his statu
tory duty. So here, the visa officer by not following
the procedure in Factor 9, failed in his statutory duty.
The use of the word "shall" as used in Factor 9
clearly indicates an obligation to hold an interview to
assess the applicant's "qualities" and thus enable the
visa officer to come to a valid opinion pursuant to
subsections 8(4) or 11(3) of the Regulations.
In the case of Yang v. M.E.I. (supra) at page 237,
the Associate Chief Justice speaks of a two-stage
assessment process:
Applications for permanent residence under the self-employed
provisions of the Immigration Act and regulations involve a
two-stage assessment process. The first phase of the assess
ment is a paper screening process in which immigration offi
cials evaluate documents submitted by applicants and decide if
the application process should be continued. If the applicant
passes this phase, he is invited to an interview with a visa
officer.
After reading the Yang decision I do not know on
what specific basis the Associate Chief Justice con
cluded that an application for permanent residence
under the self-employed provisions of the Immigra
tion Act and Regulations is a "two-stage assessment
process". There is no doubt that there are two stages,
the filing of the application and the assessment of
same pursuant to subsection 9(2) of the Immigration
Act and the second stage, if one may call it that, for
the personal suitability assessment pursuant to Factor
9 of Schedule I to the Regulations but this, in my
view, does not mean that the visa officer doing the
assessment can validly complete the assessment with
out the interview required by Factor 9.
This is indicated by the statement of Mr. Justice
Stone in the case of Muliadi v. Canada (Minister of
Employment and Immigration), [ 1986] 2 F.C. 205
(C.A.). Mr. Justice Stone, in speaking for the Court
of Appeal states [at pages 215-216]:
In deciding whether the appellant was accorded procedural
fairness, it is necessary to examine the legislative framework
in which the visa officer was required to decide the matter.
Nowhere in that framework is it laid down that there be a full
oral hearing before a decision is made. In fact, not even an
interview is contemplated except in the limited circumstances
set forth in factor 9 under Column I of Sched. I authorized
under paragraph 8(1)(c) of the Regulations:
Units of assessment shall be awarded on the basis of an
interview with the person to reflect the personal suitability
of the person and his.. dependants to become successfully
established in Canada based on the person's adaptability,
motivation, initiative, resourcefulness and other similar
qualities. [Underlining mine.]
I take this statement by Mr. Justice Stone to clearly
indicate that for the limited circumstances set forth in
Factor 9 under Column I of Schedule I, there must be
accorded an applicant, in the circumstances of this
case, an interview.
In addition, in that it is assumed that the applicant
has all of the "qualities" mentioned in Factor 9, I
believe the applicant should have had an opportunity
of meeting the negative assessment of the visa officer
before any final decision was taken. This is required
for there to be procedural fairness.
Conclusion
I am satisfied that the visa officer does not have
any discretion in deciding whether he or she will
grant an interview pursuant to Factor 9 under Column
I of Schedule I of the Immigration Regulations, 1978.
The visa officer must follow the procedure as stated
in the statute.
For these reasons, the decision of the visa officer
Nigel H. Thomson dated June 17, 1991, is hereby
quashed and I hereby order the Minister of Employ
ment and Immigration to reconsider, by a visa officer
other than Nigel H. Thomson, the applicant's applica
tion for an immigrant visa in accordance with the
statutory direction. The visa officer is to consider, as
part of the documentation filed with the applicant's
application, the affidavit of Lam-Chow Chui sworn
to on September 25, 1991, and filed as part of the
documents to this proceeding.
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.