Date: 20000926
Docket: IMM-3999-99
BETWEEN:
NING CHEN & WENBO MA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This application is for the judicial review of a decision of a visa officer dated July 15, 1999, denying the applicant's application for permanent residence encoded in the independent category.
1. Facts
[2] The applicant submitted his application for permanent residence in Canada and attended an interview in Detroit, Michigan, on July 15, 1999.
[3] He was assessed on the requirements for the occupation of biologist, NOC 2121.2, and obtained 65 units of assessment. A total of 70 units is required. He was awarded only three points, on a maximum of 10, for the "personal suitability" factor. At the request of the applicant, the visa officer also assessed his spouse in her intended occupation of biological technician. She would have obtained 62 units, including three units for personal suitability.
[4] The visa officer took into account factors such as motivation, adaptability, resourcefulness and initiative. Her most serious concerns were that the applicant would have difficulties in successfully establishing himself during the four years of his PhD program.
[5] In his affidavit in support of his application, the applicant states that the visa officer told him that the poverty line in Toronto stands at $17,000, and that "after you have paid your tuition fees you will be far below the poverty line". He tried to correct her by informing her that both he and his wife were receiving scholarships. The visa officer pointed out that the applicant would not enter the labour market before the year 2003.
[6] With reference to his wife, the visa officer determined that she would not qualify since her intended occupation is as a biological technician and she has only one year of experience. The applicant pointed out that his wife would complete her PhD the following year and that her supervisor had already offered her a job.
2. The Parties' Submissions
[7] The applicant alleges that the visa officer fettered her own discretion by applying the Low Income Cut-Offs ("LICO"), which is merely a guide and not the Act nor the Regulations. The test is whether or not an immigrant is able to make a living in Canada and not become an economic burden upon the state1.
[8] The respondent now acknowledges that the main applicant received $19,500 a year in scholarships and stipends, and that his wife receives $1,400 per month as a teaching assistant. A letter of W.D. Taylor, Chairman of the Department of Biology at the University of Waterloo indicates that she works eight months a year. Thus, the combined annual income for the couple totals $30,700, which is well in excess of the $21,760 needed for a two person family unit in the city the size of Toronto, as per the LICO guidelines.
3. Disposition
[9] In my view, it was clearly unreasonable for the visa officer to conclude that this highly qualified couple, particularly gifted in their respective field, should be turned down in their applications for permanent residence in Canada, mainly on an overly rigid application of guidelines. The Canadian government has already spent thousands of dollars in scholarships to this meritorious couple. It would be unfortunate if those skills acquired in Canada end up by benefiting another country. This cannot be the intent of the Immigration Act.
[10] Consequently, the application for judicial review is granted. All parties and the Court are agreed that there is no question of general importance to be certified.
OTTAWA, Ontario
September 26, 2000
Judge
__________________
1 see Chen v. Canada , approved by the Supreme Court of Canada, [1995] 1 S.C.R. 725.
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