Date: 20090303
Docket: IMM-3892-08
Citation: 2009 FC 220
Toronto, Ontario, March 3, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
Jiaqi
NIE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Jiaqi Nie (the “Applicant”) seeks judicial review of the decision of Visa
Officer Raymond Gabin (the “Officer”) of the Canadian Consulate in Detroit, Michigan, United
States of America. In his decision dated August 12, 2008, the Officer refused
the Applicant’s application for permanent residence in Canada as a member
of the skilled worker class.
[2]
The
Applicant applied for permanent residence, requesting assessment in the
occupation of Budget Analyst, National Occupation Classification 1112. He was
assessed according to the criteria set out in the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the “Regulations”) and was awarded 62
points as follows:
Age 10
Education 25
Official
Language Proficiency 10
Experience 17
Arranged
Employment 0
Adaptability 0
TOTAL 62
[3]
The
refusal decision from the Officer contained the following:
…In addition you were not given any
points for studying in Canada, since you did not study in Canada for at least 2 years while
under a valid Study Permit. You have not obtained sufficient points to satisfy
me that you will be able to become economically established in Canada.
[4]
The
Computer Assisted Input System (“CAIPS”) notes record the following entry:
Adaptability – None (Did not study in Canada
fr [sic] at least 2 years while under a valid study permit).
[5]
The
failure to obtain five points under the adaptability factor, pursuant to
paragraph 83(1)(b) of the Regulations negatively impacted the Applicant’s
application. Paragraph 83(1)(b) of the Regulations provides as follows:
|
83.(1) A
maximum of 10 points for adaptability shall be awarded to a skilled worker on
the basis of any combination of the following elements:
…
(b) for
any previous period of study in Canada by the skilled worker or the skilled
worker's spouse or common-law partner, 5 points;
|
83. (1) Un
maximum de 10 points d’appréciation sont attribués au travailleur qualifié au
titre de la capacité d’adaptation pour toute combinaison des éléments
ci-après, selon le nombre indiqué :
…
b) pour des études
antérieures faites par le travailleur qualifié ou son époux ou conjoint de
fait au Canada, 5 points;
|
[6]
The
Applicant submits that the Officer committed a reviewable error in denying the award
of five points for adaptability since he had provided evidence that he had been
issued three study permits, as well as evidence that he had attended the University of Western Ontario from
September 2001 to May 2002 in London, Ontario. He also provided a certificate from the Huron-Liaoning
North American Studies Program, issued by Huron University College dated May 23, 2002, showing successful
completion of seven courses. The Applicant also submitted transcripts from Xincon Technology
College, Canada,
showing his status as a full-time student and showing completion of courses
from September 2002 through December 2003.
[7]
The
Minister of Citizenship and Immigration (the “Respondent”) submits that the
Officer did not commit a reviewable error.
[8]
Pursuant
to the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, the Officer’s decision is reviewable on the standard of
reasonableness since it involves an assessment of facts against the statutory
conditions set out in the Regulations, particularly paragraph 83(1)(b).
[9]
In
my opinion, the decision of the Officer does not meet the applicable standard
of review. There was evidence submitted by the Applicant that shows that he was
in possession of three study permits issued by agents of the Respondent. There
was evidence that he was a student in Canada, pursuant to those study permits. The Officer
could not reasonably say, as he did, that there was no evidence provided by the
Applicant to show that he had studied for at least two years under a valid
study permit.
[10]
For
this reason, the application for judicial review is allowed, the decision of
the Officer is set aside and the matter is remitted to another officer for a
decision. There is no question for certification arising.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed, the decision of the Officer is set
aside and the matter is remitted to another officer for a decision. There is no
question for certification arising.
“E.
Heneghan”
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