Date: 20030205
Docket: IMM-4844-01
Neutral citation: 2003 FCT 126
OTTAWA, ONTARIO, THIS 5th DAY OF FEBRUARY, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
XIAORONG HUANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Xiaorong Huang (the "Applicant") seeks judicial review of the decision of Visa Officer Nancy Dennis (the "Visa Officer"). In her decision, made on October 2, 2001, the Visa Officer refused the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of the Peoples Republic of China, made application for permanent residence in Canada on or about March 22, 1999. She sought admission in the independent category, specifically with the intended occupation of translator, National Occupation Classification ("NOC") 5125.
[3] The Applicant's application for permanent residence included documentary evidence about her educational background and experience in the field of translation. Her documentary materials included reference letters concerning her employment as a translator over the period 1988 to the date of her application.
[4] The Applicant attended an interview before the Visa Officer on February 9, 2000 at the Canadian Consulate in Los Angeles. The Visa Officer kept notes which, according to her affidavit, were recorded in the Computer Assisted Input Program System ("CAIPS"). Those notes are included in the certified tribunal record and indicate that the Visa Officer questioned the Applicant about her experience, and noted that she has been working since 1996 for a company called "Golden Gate Translation Services" in Barbados.
[5] The Visa Officer refused the Applicant's application because she was not satisfied that the Applicant had at least one year of experience in her intended occupation. The refusal letter, dated October 2, 2001, sets out the units of assessment awarded to the Applicant, as follows:
Age 10
Occupational Factor 01
S.V.P. 18
Experience 00
A.R.E. 00
Demographic Factor 08
Education 15
English 09
French 04
Bonus 00
Suitability 02
= = = = = = = = = = = = = = = = = = = =
Total 67 Units (out of the required 70)
[6] As well, the refusal letter contains the following paragraph:
Section 11(1) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of "experience in an occupation for which they are qualified and are prepared to follow in Canada", unless the immigrant has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience. You do not meet these requirements because you have not provided verifiable evidence of at least one year of experience in the intended occupation and you do not have arranged employment in Canada. The onus is on the applicant to provide verifiable proof of at least one year of experience in the intended occupation and you have failed to meet that requirement.
[7] In my opinion, the Visa Officer in this case has committed a reversible error. She made a finding of fact without regard to the information before her. She improperly limited her consideration of the Applicant's experience to the period 1996 to 2000, without any regard for the evidence before her addressing prior and extensive experience from the period 1988 up until the Applicant began working for her own translation company.
[8] The presumption that a Visa Officer will assess an application fairly and in accordance with the law is rebuttable (see: Wang v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 165 (C.A.), at 169-170). In this case, the presumption that the Visa Officer made her decision with due regard to the evidence before her has been rebutted, on the basis of the material contained in the tribunal record and grounds for intervention accordingly exist pursuant to section 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended.
[9] In the result, the application for judicial review is allowed and the matter is remitted to a different visa officer for redetermination in accordance with the law.
[10] The Applicant seeks an award of costs, together with a direction that her application be reassessed before March 31, 2003. I am not prepared to make such a direction, in light of the wording in subsections 350(1) and (3) of the Immigration and Refugee Protection Regulations, SOR/2002-227. These subsections provide as follows:
| 350 (1) Subject to subsections (2) and (3), if a decision or an act of the Minister or an immigration officer under the former Act is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before this section comes into force, the determination shall be made in accordance with the Immigration and Refugee Protection Act.
...
(3) If a decision or an act of the Minister or an immigration officer under the former Act in respect of a person described in subparagraph 9(1)(b)(i) or paragraph 10(1)(b) of the former Regulations is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before the date of the coming into force of this section, the determination shall be made in accordance with subsections 361(3) and (5) of these Regulations.
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350 (1) Sous réserve des paragraphes (2) et (3), il est disposé conformément à la Loi sur l'immigration et la protection des réfugiés de toute décision ou mesure prise par le ministre ou un agent d'immigration sous le régime de l'ancienne loi qui est renvoyée par la Cour fédérale ou la Cour suprême du Canada pour nouvel examen et dont il n'a pas été disposé avant l'entrée en vigueur du présent article.
...
(3) Il est disposé conformément aux paragraphes 361(3) et (5) du présent règlement de toute décision ou mesure prise par le ministre ou un agent d'immigration sous le régime de l'ancienne loi à l'égard de la personne visée ou sous-alinéa 9(1)b)(i) ou à l'alinéa 10(1)b) de l'ancien règlement qui est renvoyée par la Cour fédérale ou la Cour suprême du Canada pour nouvel examen et dont il n'a pas été disposé avant l'entrée en vigueur du présent article.
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[11] As for the costs, however, I am prepared to order that the Respondent shall pay the sum of $4,500.00, inclusive of disbursements and G.S.T., to the Applicant, to defray her legal costs in pursuing this application for judicial review. The Applicant was entitled to have her application fairly and reasonably assessed; that did not happen in this case.
ORDER
The application for judicial review is allowed and the matter is remitted to a different visa officer for redetermination in accordance with the law. The Applicant shall have her costs in the amount of $4,500.00, inclusive of disbursements and G.S.T., payable by the Respondent forthwith.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4844-01
STYLE OF CAUSE: XIAORONG HUANG v. MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: JANUARY 29, 2003
REASONS FOR ORDER AND
ORDER: HONOURABLE MADAM JUSTICE HENEGHAN
DATED: FEBRUARY 5, 2003
APPEARANCES:
Matthew Moyal FOR APPLICANT
Tamrat Gebeyehu FOR RESPONDENT
SOLICITORS OF RECORD:
Matthew Moyal FOR APPLICANT
MOYAL AND MOYAL
Barristers & Solicitors
8 Finch Avenue West
Toronto, ON
M2N 6L1
Morris Rosenberg FOR RESPONDENT
DEPARTMENT OF JUSTICE
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