Date: 20040329
Docket: IMM-5805-01
Citation: 2004 FC 477
Toronto, Ontario, March 29th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
JUAN LING FENG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, by a decision dated December 3, 2001, the Applicant was denied permanent residence in Canada as she did not gain sufficient points on her evaluation by the Visa Officer. Prior to the decision being made rejecting her application, Counsel for the Applicant asked, by way of a letter dated August 13, 2001, that positive discretion be applied under s.11(3) of theImmigration Act Regulations. The letter was not received by the Visa Officer concerned.
[2] As a result, the final decision was made by the Visa Officer without knowledge of the request that positive discretion be exercised. It is agreed that, had knowledge existed, the Visa Officer owed a duty to enter into a s.11(3) inquiry.
[3] On August 31, 2001, a letter was sent by counsel for the Applicant which stated as follows:
"Further to our letter dated August 13, 2001, enclosed please find the updated application form for Ms. Feng Juan Ling and family".
There is no doubt that the August 31st letter was received by the Visa Officer.
[4] I find that, as a matter of due process, the Visa Officer owed a duty of fairness to the Applicant to inquire into the existence and contents of the letter of August 13, 2001, as it is apparent by the letter August 31, 2001, that Counsel for the Applicant was relying on the fact that the Visa Officer would consider the letter of August 13, 2001. The Visa Officer did not meet this duty of fairness.
[5] As a result, in my opinion, the Visa Officer's decision was rendered in reviewable error.
ORDER
Accordingly, I set aside the Visa Officer's decision and refer this matter back to another visa officer for redetermination.
The issue of costs is adjourned for argument to May 3, 2004 at 3:00 p.m. in Toronto, Ontario.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5805-01
STYLE OF CAUSE: JUAN LING FENG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 25, 2004
REASONS FOR ORDER
AND ORDER BY : CAMPBELL J.
DATED: MARCH 29, 2004
APPEARANCES:
Ms. Inna Kogan
FOR THE APPLICANT
Mr. Marcel Larouche
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Inna Kogan
Barrister & Solicitor
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040329
Docket: IMM-5805-01
BETWEEN:
JUAN LING FENG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER