Jin v. Canada (Minister of Citizenship and Immigration), 2004 FC 1575

Date: 20041110

Docket: IMM-9283-03

Citation: 2004 FC 1575

Ottawa, Ontario, this 10^th day of November, 2004

Present:           THE HONOURABLE MR. JUSTICE O'REILLY

BETWEEN:

                                                                   LICHEN JIN

                                                                                                                                            Applicant

                                                                           and

                              THE MINISTER OF CITIZENSHIP & IMMIGRATION

                                                                                                                                        Respondent

                                    REASONS FOR JUDGMENT AND JUDGMENT

[1]                Ms. Lichen Jin applied to become a permanent resident of Canada in January 2002 as a computer analyst. She duly filled out the application form that was required by the Immigration Regulations, 1978, SOR/78-172. A visa officer did not review her application until October 2003. The officer found that Ms. Jin did not qualify for permanent residence because she was four points short of the required 67 points. Ms. Jin responded to the visa officer's letter and informed him that she should have been credited an additional five points because, some months earlier, she had finished two years of post-secondary education. Ms. Jin had not previously informed the officer about her further studies.

I. Issue

[2]                Ms. Jin contends that the Minister of Citizenship and Immigration should have sent her the new application form that came into existence in June 2002, when new regulations came into force: Immigration and Refugee Protection Regulations, SOR/2002-227. Ms. Jin argues that her application would have been successful if she had been given an opportunity to complete the new form because she would have added more information about her post-secondary studies. She also submits that the visa officer had no authority to process her obsolete application.

II. Analysis

[3]                Ms. Jin suggests that s. 10(1) of the 2002 Regulations obliges the Minister to assess an application for permanent residence according to the forms that are prescribed by those Regulations, not the forms that had been prescribed under the previous regulations. I do not read s. 10(1) that way. It simply requires that an application "be made in writing using the form provided by the Department, if any". I see nothing that requires the Minister to provide persons whose applications are pending with the newly prescribed form.

[4]                Ms. Jin maintains that the Minister of Citizenship and Immigration had issued a directive to the effect that applications that were pending at the time the new Regulations came into force would be returned to the applicants with a demand that the new forms be filled out. However, the affidavit evidence supplied by Ms. Jin does not bear out her position. It seems clear that after the new Regulations came into force, applicants were obliged to submit the new forms. But there appears to have been no requirement that persons whose applications were pending had to submit new forms.

[5]                Similarly, I see no basis for Ms. Jin's claim that the Minister was obliged to send her the new forms, consider any new information that she might have included, and assess the new application accordingly. Certainly, Ms. Jin could have supplemented her application at any time. She bore the onus of providing whatever information was relevant: Fernandez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 994 (T.D.) (QL); Rani v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1102, [2002] F.C.J. No. 1477 (T.D.) (QL). Had she done so, she might well have succeeded in her application for permanent residence. But the officer's assessment of her application was based on the information she provided and I see no basis on which to overturn it.

                                                                   JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.          The application for judicial review is dismissed.

2.          No question of general importance is stated.

                                                                                                                             "James W. O'Reilly"        

                                                                                                                                                   F.C.J.                 

                                                                         Annex

FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-9283-03

STYLE OF CAUSE:               LICHEN JIN v. MCI

PLACE OF HEARING:                     TORONTO

DATE OF HEARING:                       November 2, 2004

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                              November 10, 2004

APPEARANCES BY:

Max Chaudhary                                     FORTHE APPLICANT

Matina Karvellas                                   FOR THE RESPONDENT

SOLICITORS OF RECORD:

CHAUDHARY LAW OFFICE            FOR THE APPLICANT

North York, ON

MORRIS ROSENBERG

Deputy Attorney General of Canada

Toronto, Ontario                                   FOR THE RESPONDENT