Date: 20010412
Docket: IMM-3629-99
Neutral Citation: 2001 FCT 327
BETWEEN:
XIAO YAN XU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
Introduction
[1] Xu Xiao Yan ("applicant") seeks judicial review of the June 15, 1999 decision of L. Chau ("visa officer"), made at the Canadian Consulate General in Hong Kong denying her application for permanent residence under the Independent category.
[2] The applicant is a citizen of the People's Republic of China. Her application indicates she holds a Bachelor's degree in economics from "Jiangxi Financial and Economical University". Between 1992 and 1994, the applicant worked for a local bank as a loan officer. Her duties involved reviewing and evaluating loan applications and making recommendations to management on the basis of her analysis. From 1994 to the present, the applicant has held the position of Vice-President, Investment and Financial Analyst of the Ningbo Free Trade Zone Xinhang Trade Co. Ltd.
[3] The applicant asked to be assessed under the National Occupational Classification ("NOC") system as a Financial and Investment Analyst, code 1112.0. The visa officer awarded her 68 units of assessment as follows:
Age 10
Occupational Demand 03
Education/Training Factor 17
Experience 08
Arranged Employment 00
Demographic Factor 08
Education 15
English 02
French 00
Personal Suitability 05
Total 68
[4] The visa officer also assessed the applicant under the occupation, Loan Officer NOC code 232.0 for which the applicant received 52 units of assessment. As the applicant failed to obtain the required 70 units of assessment in either occupation, her application was refused.
[5] As reflected in the units of assessment awarded for experience and as stated in the CAIPS notes, the visa officer was satisfied the applicant had experience in her intended occupation. Regarding personal suitability, the visa officer states in the CAIPS notes that the applicant "demonstrated motivation in advancing her career with different organizations. However, her knowledge of the Canadian stock exchange is of almanac variety, demonstrating she lacked initiative and resourcefulness in researching the country she intends to settle". The visa officer awarded 5 units for personal suitability.
[6] The applicant submits the visa officer breached the duty of procedural fairness by not providing her with the opportunity to respond to what the applicant characterizes as a negative assessment of her personal suitability. Particularly, the applicant states the visa officer made a negative assessment of her personal suitability, based on findings as to her initiative and resourcefulness. The applicant relies on Tam v. Canada (Minister of Citizenship and Immigration) (1996) 35 Imm. L.R. (2d) 207 for the proposition that the visa officer was under a duty to inform her of this, so she could respond to and potentially dispel this impression.
[7] The respondent takes the position that Tam, supra, is not applicable to facts of this case. Because the visa officer did not assess the applicant's personal suitability negatively and as burden rests on the applicant to establish eligibility, the respondent maintains there was no breach of the duty of fairness.
[8] In paragraphs 7 and 8 of her affidavit, the visa officer states:
7. Contrary to the Applicant's assertion at paragraph 5 of her affidavit, I did not assess the Applicant's personal suitability negatively. I assessed her demonstrated motivation, adaptability, resourcefulness and initiative, attributes relevant to the assessment of personal suitability, in accordance with Schedule 1 of the Immigration Regulations.
8. In assessing the Applicant's personal suitability, I considered her motivation, adaptability, resourcefulness and initiative. I considered the Applicant's career advancement with various organizations as a favourable indicator of motivation. However, the Applicant failed to demonstrate initiative and resourcefulness in that she did not conduct any research on the stock market in Canada. The stock market in Canada is markedly different from the controlled financial market in China and such information would be an element essential to her successful integration into the Canadian labour force. After considering all the attributes relevant to the assessment of the Applicant's personal suitability, I awarded 5 units of assessment for this factor.
[9] While the visa officer's assessment of the applicant's motivation was certainly favourable, I fail to see how the visa officer's assessment of initiative and resourcefulness can be construed as anything but negative. Although globally an award of 5 units of assessment may be seen as an average rating, where, as in this case, two key aspects of the assessment are negative, in my view the applicant should have been given an opportunity to address the visa officer's concerns.
[10] The respondent also submits that even if the assessment of personal suitability is considered to be negative, the CAIPS notes indicate the applicant was given an opportunity to respond. In her affidavit, the applicant states the visa officer told her only her English skills were lacking. Although in the CAIPS notes it states "Explained reasons for refusal to PI. No rebuttal offered.", in the visa officer's affidavit there is no specific response to the applicant's assertion. Given that the visa officer did not specifically address this assertion in her affidavit and having regard to the visa officer's stance that the personal suitability assessment was not negative, I accept the applicant's evidence that she was not informed of the concern and was not given an opportunity to respond. In my view, this constitutes a breach of the duty of procedural fairness.
[11] For these reasons, the application for judicial review is allowed and the June 15, 1999 decision is set aside. The matter is remitted back for reconsideration by a different visa officer.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
April 12, 2001