Date: 20020304
Docket: IMM-2624-01
Neutral citation: 2002 FCT 241
BETWEEN:
YIN CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant in the present case seeks judicial review of the April 17, 2001, decision of a Visa Officer denying his application for permanent residence in Canada.
[2] The Applicant applied for permanent residence in the Independent Category as a Computer Programmer. After interviewing the Applicant, the Visa Officer awarded him a total of 69 units of assessment; one point shy of the required 70 units of assessment. In the refusal letter, the Visa Officer stated that the units awarded were an accurate reflection of the Applicant's ability to become successfully established in Canada.
[3] The Applicant brings this judicial review to challenge the Visa Officer's award of five units of assessment for personal suitability. The Applicant submits that the Visa Officer erred in making negative inferences regarding the Applicant's employment history and that in failing to bring this concern to his attention, the Visa Officer also breached the duty of procedural fairness owed to the Applicant. In my opinion, these submissions have merit.
[4] Schedule I of the Immigration Regulations, 1978, requires a visa officer to assess personal suitability in terms of the ability of an applicant and his or her dependants to become successfully established in Canada based on qualities such as adaptability, motivation, initiative and resourcefulness.
[5] In her affidavit, the Visa Officer states that the personal suitability assessment was based in part on the Applicant's employment history:
Based on the materials that the Applicant submitted with his application and the information that he provided to me during the interview, I was not satisfied that he had experience in moving jobs or searching for new employment. I considered this to be an area where the Applicant could have demonstrated his adaptability, which is one of the factors to be considered in assessing an applicant's personal suitability under Schedule I of the Immigration Regulations, 1978. (Respondent's Record, p.2)
[6] The basis for this assessment is also found in specific statements contained in the Visa Officer's CAIPS notes as follows:
PA has no experience in looking for a job. Has only ever worked in one company. PA unable to demonstrate higher than average adaptability. (Tribunal Record, p.60)
In my opinion, this conclusion was reached in reviewable error.
[7] It is well-established that negative inferences regarding personal suitability may not be reasonably drawn from the fact that an applicant has only worked in one job during his employment history (Tam v. Canada (Minister of Citizenship & Immigration) (1996), 35 Imm. L.R. (2d) 207 (F.C.T.D.) at p.209).
[8] In addition, the relevant case law indicates that procedural fairness requires a visa officer to inform an applicant of his or her concerns and also afford an applicant the corresponding opportunity to address those concerns (He v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 811 at para 9).
[9] In the present case, the Visa Officer told the Applicant that he was awarded 5 units for personal suitability and asked if he had any comments. In my opinion, this also constitutes a reviewable error. The duty of procedural fairness required the Visa Officer to advise the Applicant of her concerns and provide him with an opportunity to respond. Simply inviting comments without providing the necessary context does not fulfil this requirement in a meaningful way.
O R D E R
[10] Accordingly, the Visa Officer's decision is set aside and I refer the matter back to a different visa officer for reconsideration.
(Sgd.) "Douglas R. Campbell"
Judge
Vancouver, British Columbia
March 4, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2624-01
STYLE OF CAUSE: Yin Chen v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 4, 2002
REASONS FOR ORDER OF THE COURT BY: Campbell J.
DATED: March 4, 2002
APPEARANCES:
Dennis Tanack FOR APPLICANT
Emilia Péch FOR RESPONDENT
SOLICITORS OF RECORD:
FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia