Nallainathan v. Canada (Citizenship and Immigration), docket IMM-5729-98

Date: 19991005

Docket: IMM-5729-98

BETWEEN:

PARTHIBAN NALLAINATHAN

Applicant

-and-

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

     REASONS FOR ORDER AND ORDER

CAMPBELL J.:

[1]      This judicial review concerns a decision of a visa officer refusing the applicant"s application for permanent residence. With respect to this decision I find two reviewable errors.

[2]      I find that the opinion letter dated January 20^th 1998 from the High Commission in Sri Lanka to the visa officer had impact on the decision rendered. As this letter was not provided to the applicants, and as a consequence no opportunity to respond was given, I find a breach of the duty of fairness.

[3]      In the hearing before the visa officer, the applicant made a critical argument regarding the application of the "Member of the Country of Asylum Class" provisions. It is agreed that the visa officer misinterpreted these provisions by erroneously applying a schedule relating to the "Member of Source Country Class" provisions. I find that this error in law had strong effect on the decision reached.

[4]      Taken in combination, I am satisfied that the two reviewable errors require a re-hearing of the applicant"s application for permanent residence.

ORDER

     Accordingly, I hereby set aside the decision herein and refer the matter to another visa officer for re-determination.

                                 "Douglas R. Campbell"

     JUDGE

TORONTO, ONTARIO

October 5, 1999

FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                          IMM-5729-98

STYLE OF CAUSE:                      PARTHIBAN NALLAINATHAN

                                                     Applicant

                             - and -

                                            

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

                            

DATE OF HEARING:                  TUESDAY, OCTOBER 5, 1999

PLACE OF HEARING:                  TORONTO, ONTARIO

REASONS FOR ORDER BY:              CAMPBELL, J.

DATED:                          TUESDAY, OCTOBER 5, 1999

APPEARANCES:                      Mr. Jegan Mohan

                                 For the Applicant

                             Ms. Marianne Zoric

                                 For the Respondent

SOLICITORS OF RECORD:              Mr. Jegan Mohan

                             Mohan & Mohan

                             225-3300 McNicoll Ave.

                             Scarborough, Ontario

                             M1V 5J6

For the Applicant

                              Morris Rosenberg

                             Deputy Attorney General

                             of Canada

                                 For the Respondent

                             FEDERAL COURT OF CANADA

                                 Date: 19991005

                        

         Docket: IMM-5729-98

                             Between:

PARTHIBAN NALLINATHAN

     Applicant

                             - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                        

     Respondent

                    

                            

            

                                                                             REASONS FOR ORDER