Date: 20010131
Docket: IMM-2814-00
Between:
XIAO LU,
Applicant,
- and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
(Delivered orally from the Bench on January 25, 2001
at Vancouver, British Columbia)
Muldoon, J.
[1] Well, the role of a judge is such that the judge cannot please everyone who appears before him because there's always a matter in contention. As is usual, it has to be resolved, and it seems that whichever way it is resolved here in this case is not going to blight anyone's life.
[2] But the Court's concern is that the refusal letter from the visa officer displays weaknesses which ought not to have the Court approve the visa officer's performance of her duty and ought not to have the Court dismiss the application out of hand.
[3] If we turn to the visa officer's refusal letter, passing by the CAIPS notes, we see some matters which are probably not reasonable holdings. Mostly the findings are in the last paragraph, where she says that she:
| "is not satisfied that you meet all the above requirements, in particular that your status in the U.K. is temporary." |
That was not only true at that time, but now we know it was true because now we know, through both counsel, who seemed to agree on the fact, that the applicant has returned to the People's Republic of China.
"You have no previous travel history."
Well, that's not quite true either. He certainly travelled to England and he, at the time this letter was written, I suppose, or at the time of his application he hadn't travelled back to China yet. But we now know that he has. So he now has a travel history, and that's because counsel obliged the court by telling us this fact which the visa officer didn't know. Both counsel have affirmed it, so it is no longer in contention.
"I do not have the ability to establish your ties to your home country, People's Republic of China, and I'm not satisfied that your purpose in Canada is temporary"
All right, that's a finding which the visa officer was required or obliged to consider.
"but I do not have the ability to establish your ties to your home country PRC"
is again an unreasonable finding when he has two living parents in China and both are employed at well-paying jobs, and both are capable, one might suppose, of looking after his needs so long as he is a dependent.
"or that you are a bono [sic] fide visitor to Canada."
Well, those findings have to be based on something. But since the other findings are not properly based and are unreasonable, then that finding really cannot stand. It doesn't follow from the other findings which are not reasonable.
She says:
| " Consequently your application for temporary entry to Canada is refused." |
Well, that's her conclusion and of course, that is why we are here today.
[4] The findings of the visa officer, who filed no affidavit because she was absent on vacation when the time came to file an affidavit, are not reasonable. Now, it's true, she could have applied -- or the respondent could have applied to extend the time and then who knows, the visa officer might have vindicated herself on cross-examination or disgraced herself on cross-examination. It's not for me to say, I don't know what would have happened there. But the case is therefore weakened because there is nothing more from the visa officer.
[5] Now, on the same terms, there is no particular statement in the handwriting or in the words of the applicant, from him either.
| MR. KISCHER: I'm sorry, My Lord. There is an affidavit of the applicant. |
| THE COURT: Yes, there is an affidavit. Not at the right time though. Not at the right time. |
So there's no obligation on him to give an affidavit or a statement, and of course, there's no obligation on the visa officer to give an affidavit, but both are missing. So there are deficiencies in this case which make this judge consider that it would be unsafe to dismiss this application even though the dismissal of the application will hardly blight the applicant's life.
[6] The evidence is such, and you've both reminded the Court that the Court is naturally concerned with the evidence before it. That's quite true. That is the advice of good counsel. The Court is concerned with the evidence before it, as you've both reminded the Court. So the evidence before the Court, in this judge's opinion, renders it unsafe to dismiss the applicant's application on the evidence.
ORDER
The application is granted and the application of Xiao Lu is referred to another visa officer to assess it - to assess it according to law, making the requisite findings for the adjudication in terms of the application which will then be made. They may be somewhat different at that time because there will have been the affluxion of time.
(Sgd.) "F.C. Muldoon"
Judge
January 31, 2001
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: IMM-2814-00 |
| STYLE OF CAUSE: Xiao Lu |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: January 25, 2001 |
| REASONS FOR ORDER AND ORDER OF MULDOON, J. |
| DATED: January 31, 2001 |
APPEARANCES:
| Mr. Rudolf J. Kischer For the Applicant |
| Ms. Pauline Anthoine For the Respondent |
SOLICITORS OF RECORD:
Rudolf J. Kischer
Barrister and Solicitor
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |