Date: 19980331
Docket: IMM-3742-97
BETWEEN:
YUNCHENG BI
Applicant,
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of an alleged decision of a visa officer at Hong Kong wherein the visa officer advised counsel for the applicant that his client's application for permanent residence in Canada was fully concluded by letter dated the 9th of September, 1996, which letter rejected the application. The alleged later decision is dated the 25th of July, 1997.
[2] The applicant is a resident of Hong Kong. He applied for permanent residence in Canada in the independent category. By letter dated the 9th of September, 1996, he was advised that his application for landing was refused. He was further advised that he was entitled to a refund of the "Right of Landing Fee" that he paid when he submitted his application. He was advised that the refund was being processed and that he should receive it within three to four months.
[3] By Order in Council P.C. 1997-680, dated the 24th of April, 1997, the Immigration Regulations 19781 were amended. The Canadian Classification Dictionary of Occupations (the "CCDO") criteria, against which the applicant's application was assessed, were repealed and replaced by a new National Occupation Classification guide. The transition between the two bases for assessing applications for landing based upon intended occupations was provided for by a new section of the Immigration Regulations as follows:
| 2.03 (1) For the purpose of an assessment by a visa officer under section 8, in respect of an application for a visa that was made under section 9 of the Act before May 1, 1997 and was still pending on that date, the applicable factors set out in Schedule 1, as that Schedule read immediately before May 1, 1997, shall apply. (2) If an application for a visa referred to in subsection (1) is refused, the visa officer shall reassess the applicant in accordance with the applicable factors set out in Schedule I, as that Schedule read on May 1, 1997. [emphasis added] |
2.03 (1) L'appréciation par l'agent des visas aux termes de l'article 8, dans le cadre d'une demande de visa pendante au 1er mai 1997 qui a été présentée avant cette date en vertu de l'article 9 de la Loi, se fait suivant les facteurs applicables prévus à l'annexe I dans sa version antérieure au 1er mai 1997. (2) Lorsque la demande visée au paragraphe (1) est refusée, l'agent des visas apprécie à nouveau le demandeur suivant les facteurs applicables prévus à l'annexe I dans sa version du 1er mai 1997. [Je souligne] |
[4] Thus then, where an application for landing such as that of the applicant herein was "still pending" on the 1st of May, 1997, the transitional rules provided that the application should be assessed by reference to the CCDO criteria. If the application failed on the basis of those criteria, it was to be reassessed on the basis of the National Occupation Classification guide.
[5] By the 16th of July, 1997, the applicant had still not received the refund of the Right of Landing Fee that had been promised to him in the letter of the 9th of September, 1996. In the result, counsel for the applicant faxed the visa officer in Hong Kong. His fax read in part as follows:
| No doubt you thought that this file was long since closed. However, owing to (1) the Commission's decision to retain Mr. Bi's "head-tax", thereby keeping his file open; (2) the Federal Court's approval of the Commission's reversal of a decision to issue an immigrant-visa to Dolly Shuk-Ching Chan (IMM-6477-93) and (3) s-s.2.03(2) of the Immigration Regulations, which requires assessment under NOC criteria of pending applications rejected under CCDO criteria, I am respectfully submitting that Mr. Bi's application be reconsidered because (a) properly assessed under the CCDO, he should have been approved and (b) assessing him as an "applications programmer" under NOC criteria brings his assessment to the seventy-point threshold. |
[6] The visa officer responded by letter dated the 25th of July, 1997 which read in part as follows:
| Mr. Bi's application for permanent residence in Canada was considered on its substantive merits and for possible humanitarian and compassionate grounds and was refused under both heads. Mr. Bi was provided with the decision containing the reasons for refusing his application for permanent residence in Canada by letter addressed to him dated 09 September, 1996 thereby fully concluding his application. Thank you for bringing to our attention our failure to refund Mr. Bi his Right of Landing Fee. Our refund procedure has now been initiated and a refund cheque will be issued in the next 3-4 months. [emphasis added] |
[7] The first issue argued before me on this application was whether or not the visa officer's letter of the 25th of July, 1997 was merely a "courtesy response" and therefore not subject to judicial review or whether it was a decision subject to judicial review. Reading the portion of that letter quoted immediately above in conjunction with the fax to which it replied, I conclude that it was a reviewable decision. Implicitly at least, in the second sentence of the quoted paragraph from the visa officer's letter of the 25th of July, 1997, the visa officer rejected the proposition that the applicant's application for landing was still pending on the 1st of May, 1997 and therefore, if rejected under the CCDO criteria, was required to be reassessed under the National Occupation Classification guide. Also implicitly, the visa officer declined to exercise any discretion that she might have had to reconsider her decision of the 9th of September, 1996, arising other than by reason of the amendments to the Immigration Regulations, 1978.
[8] I regard both of the implicit "conclusions" on the part of the visa officer as reviewable decisions. Put another way, I conclude that the letter of the 25th of July, 1997 was not a mere "courtesy response".
[9] Counsel for the applicant urged that the visa officer erred in both of her implicit conclusions or decisions. I reach the opposite conclusion. The visa officer's letter of the 9th of September, 1996 unequivocally rejected the applicant's application for landing. It is true that an administrative result, the refund of the Right of Landing Fee, remained outstanding. But that outstanding element was nothing more than an administrative result of the decision that was taken. The applicant's application for a visa was not "still pending" on the 1st of May, 1997. Therefore the visa officer's implicit conclusion or decision that she had no right or obligation under section 2.03 of the Immigration Regulations to reassess the applicant's application on the basis of the National Occupation Classification guide was not only reasonably open to her, it was correct.
[10] Decisions of this Court go both ways on the question of whether or not a visa officer who has rejected an application for landing in Canada has a discretion to reconsider her or his decision.2 I need not take a position on that question for the purpose of deciding this matter and I decline to do so. If the visa officer here had discretion to reconsider, as indicated earlier in these reasons, implicitly at least, she declined to exercise that discretion. I can find no error in that exercise of pure discretion. Put another way, her exercise of discretion not to reconsider, if indeed she had any such discretion, was reasonably open to her.
[11] For the foregoing reasons, this application for judicial review was dismissed from the bench.
[12] Neither counsel appearing before me recommended certification of a question. No question was certified.
_____________________________________
Judge
Ottawa, Ontario
March 31, 1998
__________________2 To the effect that a visa officer does not have such discretion, see Dumbrava v. Canada (Minister of Employment and Immigration) (1995), 31 Imm. L.R. (2d) 76 (F.C.T.D.); Brar v. Canada (Minister of Employment and Immigration) [1979] F.C. J. No. 1527 (Q.L.)(F.C.T.D.) and Rozenkovicius v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 334 (Q.L.)(F.C.T.D.). To the opposite effect see Soimu v. Canada (Minister of Citizenship and Immigration) [1994) F.C.J. No. 1330 (Q.L.) (F.C.T.D.); Chan v. Canada (Minister of Employment and Immigration) (1996), 34 Imm. L.R. (2d) 259 (F.C.T.D.); and Park v. Canada (Minister of Employment and Immigration) [1998] F.C.J. No. 133 (Q.L.) (F.C.T.D.).