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(Canadian Immigration and Employment Law)

Immigration Selection: Application of Positive Discretion: Chang- Jie Chen, S.C.C.; February 23, 1995. This decision of the Supreme Court of Canada, provides interesting insight into the use of positive discretion provided by section 11(3) of the Regulations. This section enables a visa officer to "issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required (...) 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 (...)."

The Court held that a refusal by the visa officer based on this provision of the Regulations, for reasons which related to an alleged bribe made by the applicant, was unfounded. This section was not intended to provide visa officers with an unlimited mandate to assess whether an applicant is a suitable candidate for immigration, given that there are a number of factors which identify whether an applicant will be suitable or unsuitable.

This decision is a further pronouncement on the rule that the use of discretion must be used within the precise and qualified circumstances identified by Parliament.