Date: 20050331
Docket: IMM-5768-04
Citation: 2005 FC 427
BETWEEN:
Qiang ZHANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision rendered on June 7, 2004, by Visa Officer Erin Brouse (the officer) of the Canadian Embassy in Beijing, China, wherein the officer denied the application of Qiang Zhang for temporary entry into Canada.
[2] Qiang Zhang (the applicant) is a citizen of China, and was married to Shu Lian He (the applicant's wife) on September 30, 2001. The applicant's wife is a Canadian citizen living in Canada. On April 25, 2002, the applicant's wife submitted a sponsorship application on his behalf, which was rejected. In March 2004, the applicant's first visitor's visa application was rejected and his second application was rejected on June 7, 2004. It is the second application that is the subject of the present judicial review.
[3] The applicant alleges the following ties to China: he is employed and lives with his dependent grandmother there, and he is the legal owner of property as well as the holder of various bank accounts.
[4] The relevant provision of the Immigration and Refugee Protection Act, L.C. 2001, c. 27 (the Act) is as follows:
3. (1) The objectives of this Act with respect to immigration are
[. . .]
(d) to see that families are reunited in Canada.
3. (1) En matière d'immigration, la présente loi a pour objet :
[. . .]
d) de veiller à la réunification des familles au Canada;
[5] The officer denied the applicant's visitor's visa on the basis that she was not convinced the applicant would leave Canada at the end of his stay. The decision, which is a copy of the Computer Assisted Immigration Processing System ("CAIPS") notes, reveals that the officer concluded the applicant seems to have no close relatives in China, nor any children and that the purpose of the invitation is to test the applicant's relationship after a long separation.
[6] The officer's decision is administrative and discretionary in nature and this Court should not intervene unless the decision is based on a conclusion that was made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). In this case, the officer's decision is replete with errors that indicate she came to her conclusion without regard for the material before her, thereby justifying the intervention of this Court.
[1] The CAIPS notes indicate that the officer believed the applicant to have no close relatives in the People's Republic of China, however the evidence indicates that the applicant lives with his dependent grandmother. The officer also concluded that the applicant had only four weeks of vacation whereas the evidence reveals that he has four weeks of paid vacation and four weeks of unpaid vacation. The applicant owns property in China and has bank accounts there, all factors indicating ties with China.
[2] Furthermore, the officer did not consider the purpose of paragraph 3(1)(d) of the Act, when making her determination. In Gupta v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1099 (QL), a case predating the current Act, my colleague Justice Gibson stated the following at paragraph 11:
[. . .] Traditionally, paragraph 3(c) (which is now 3(1)(d)) has been applied in circumstances of family reunification through immigration to Canada. However, I am satisfied that the wording of that paragraph is broad enough to encompass the reunion in Canada of Canadian citizens and permanent residents, . . . with their close relatives from abroad, . . . through the vehicle of visitors visas issued to persons such as these applicants and their son. To interpret paragraph 3(c) more narrowly would be to put the immigration objective reflected in paragraph 3(e) . . ., on a higher plane than the facilitation of family visits. I am satisfied that such an interpretation would be inconsistent with the long standing humanitarian reputation associated with Canadian immigration policy and law.
[3] I believe that the same principle can be applied to the present case, and under the new Act. The applicant stated that his application was clearly to facilitate his reunion in Canada with his spouse and family. In my view, this purpose is compatible with paragraph 3(1)(d) of the Act, and the officer should have considered this factor.
[4] Neither the CAIPS notes nor any other material that was before the decision-maker discloses any basis on which the officer might have reasonably concluded that the applicant would not leave Canada at the end of his period of authorized stay. All of the aforementioned errors indicate that the officer did not properly review the evidence before her and it is for these reasons that I allow the application for judicial review.
[5] Consequently, the visa officer's decision is set aside and the matter is sent back for redetermination by a different visa officer of the Canadian Embassy in Beijing, China.
JUDGE
OTTAWA, ONTARIO
March 31, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5768-04
STYLE OF CAUSE: Qiang ZHANG v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 24, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: March 31, 2005
APPEARANCES:
Guillaume Brien FOR THE APPLICANT
Diane Lemery FOR THE RESPONDENT
SOLICITORS OF RECORD:
Guillaume Brien FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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