Date: 20021113
Docket: IMM-5007-01
Neutral citation: 2002 FCT 1176
BETWEEN:
SONG TAO ZHOU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] Mr. Song Tao Zhou (the "Applicant") seeks judicial review of the decision of J.L. Waterman-Zhang, Designated Immigration Officer (the "Immigration Officer"). In her decision, the Immigration Officer dismissed the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of China, applied in October 2000 for admission into Canada as a member of the family business class. This was his second attempt to obtain permanent residence in Canada; a prior application made in 1999 was rejected by letter dated March 20, 2000.
[3] The covering letter that accompanied the current application for permanent residence clearly stated that the Applicant sought admission into Canada as a member of the family business class. However, due to the inadvertence of counsel for the Applicant, the material submitted with the application did not include documentary evidence that the Applicant was in possession of an approved job offer in Canada. The first application for permanent residence had included proof that Citizenship and Immigration Canada ("CIC") had approved employment of the Applicant with a family business.
[4] The Applicant's 2000 application was rejected by the Immigration Officer following a review of his file. According to her refusal letter, he was assessed in his intended occupation of cook, National Occupational Classification 6242.0. He was awarded 54 units of assessment. He was awarded no units for arranged employment.
[5] The Immigration Officer provided an affidavit for use in this proceeding. At paragraph 8 she deposed as follows:
The Applicant also alleges through counsel in paragraph 12 that I failed to take into consideration 10 units of assessment for pre-approved employment. Applicant's counsel presumably refers to 10 units for a Family Business Job Offer (FBJO). It is true that I awarded no points for FBJO. There was no approved FBJO submitted with this application. There is an agreement between the Applicant and Fortune Food Products Company Ltd. on file (Tribunal Record, pp. 32-35). However, I considered this as an informal job offer because Citizenship and Immigration Canada had not approved it as required.
[6] The Applicant argues the Immigration Officer breached the duty of fairness by failing to advise him that his application materials did not include confirmation or CIC approval of the job offer to support the 10 units of assessment which were available in that regard. He submits that since this approval was part of his initial application for entry as a permanent resident, the Immigration Officer was obliged to make inquiries about the current status of the job approval when his present application was assessed.
[7] In response, the Respondent argues that there is no positive obligation upon an immigration officer to alert an applicant to a deficiency in his application materials. The burden lay upon the Applicant to show that he met the legislative and regulatory requirements for admission into Canada. The Respondent relies on Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (T.D.) to support this argument.
[8] Further, the Respondent argues that the file relating to the earlier application for permanent residence was irrelevant to the second application and that the Immigration Officer might have invited justifiable criticism if she had referred to it.
[9] I accept the Respondent's argument that the duty of fairness does not impose a general duty upon an immigration officer to draw the attention of an individual applicant to possible deficiencies in an application. However, in the present case, this does not dispose of the matter. As noted by the Supreme Court of Canada in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, the concept of procedural fairness is variable and its content is to be determined in the specific context of each case.
[10] In this case, the file maintained by the Respondent in connection with the Applicant bears a file number, B041290690. In this space provided on the face of the file under the heading "Cross Reference-Renvoi", another file number is recorded with notations. This entry reads "xref B038447253 (AMAL)". At page 39 of the Tribunal Record produced by the Respondent is the refusal letter sent to the Applicant on March 20, 2000, in response to his first application for permanent residence in Canada. The file number on this letter is B038447253.
[11] The reference on the front of this file to "AMAL" is confirmed in the Computer Assisted Immigration Processing System ("CAIPS") notes maintained by the Respondent with input from the Immigration Officer. The entry for May 14, 2001 says "B038447253 is physically amal. to this file".
[12] The entry on the face of the Applicant's file shows that the file concerning his 2000 application for permanent residence was amalgamated with his earlier file. Any doubt about the meaning of "amalgamated" is eliminated by reference to the entry in the CAIPS notes for May 2001. The two files were physically amalgamated; in other words, joined together.
[13] The entry for September 5, 2001 reads, in part, as follows:
Reapplying as cook. Oddly, appears to have taken less prestigious job-manager of a canteen in a factory, or a department of a canteen, not entirely clear.
[14] The cover page of the Applicant's application and entry in the CAIPS notes for May 14, 2001, suggest that the Immigration Officer indeed had the "old" file before her while assessing the "new" one. That inference can reasonably be drawn from her entry that the Applicant was "reapplying as cook".
[15] In these circumstances, when the Respondent's own records including the CAIPS notes, show that the Applicant's files were amalgamated, the Immigration Officer was, or ought to have been, aware that the Applicant had previously submitted proof that he was eligible for the award of units for pre-arranged employment. Procedural fairness required her to question the lack of documentation showing the continued availability, or otherwise, of that pre-arranged employment.
[16] In my opinion, the duty of fairness owed to the Applicant in this factual situation was denied.
[17] The application for judicial review is allowed and the matter remitted to a different immigration officer for determination according to the law.
[18] There is no question for certification arising from this application.
ORDER
The application for judicial review is allowed and the matter remitted to a different immigration officer for determination according to law.
There is no question for certification.
"E. Heneghan"
J.F.C.C.
OTTAWA, ONTARIO
November 13, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5007-01
STYLE OF CAUSE: SONG TAO ZHOU v. MCI
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: NOVEMBER 6, 2002
REASONS FOR ORDER : THE HONOURABLE MADAM JUSTICE HENEGHAN
DATED: NOVEMBER 13,2002
APPEARANCES:
Mr. Henry M. Beaumont FOR THE APPLICANT
Mr. Brad Hardstaff FOR THE RESPONDENT
SOLICITORS OF RECORD:
Beaumont Church LLP FOR THE APPLICANT
Calgary, Alberta
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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