Date: 19980424
Docket: IMM-831-97
BETWEEN:
KIN WING LAU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.:
[1] On this judicial review, on the isolated point raised by counsel for the applicant as to whether the visa officer's discretion applied in this case was fettered by a 1995 memorandum from the Deputy Minister, in my opinion there is no doubt that the memorandum does not constitute guidelines, but is a directive, the terms of which are inconsistent with the herein applicable statements of Strayer, J. in the case Chen v. Minister of Employment and Immigration, 13 Immigration Law Review (2d) 172, where he says:
While it is nowhere clearly spelled out, the selection standards authorized for use by para. 114(1)(a) of the Act, and the actual factors identified in Sched. I of the Regulations, appear to be essentially related to the ability of an immigrant to make a living in Canada or to be economically sustained other than by the state.
[2] Therefore, having wrongly followed the guidelines to the letter, I find that the visa officer in this case fettered her discretion.
ORDER
The application is allowed and the decision of visa officer Ms. Barr dated November 21, 1996 is set aside and the matter is referred to another visa officer for redetermination in accordance with the following directions:
| 1.In that there is no dispute as to the fact that the applicant has achieved 71 units which satisfies s.10(1)(b) of Immigration Regulations in accordance with the 1991 Immigration Regulations, the only issue that remains is whether negative discretion is appropriate. In this regard, the exercise of discretion must be made in accordance with the dictum of Strayer, J. in Chen. In contemplating the exercise of a discretion, if any, the "good reasons" referred to in S. 11(3) of the Regulations must include consideration of: |
| (i)two job offers, to which substantial weight must be given; and |
| (ii)the undertaking, to which substantial weight must be given. |
| 2.The respondent should provide the applicant with notice of whatever facts he intends to rely upon to ascertain whether there are good reasons for the exercise of negative discretion, if any, and allow the applicant to rebut the same before a decision is made. |
| 3.The redetermination is to be completed by the visa office in Hong Kong in accordance with these reasons. |
Given that the result herein was caused by the Deputy Minister's directive, I find special reasons to award costs to the applicant and I do so in Column III of
Tariff B.
"Douglas R. Campbell"
Judge
Toronto, Ontario
April 24, 1998
FEDERAL COURT OF CANADA
Date: 19980424
Docket: IMM-831-97
BETWEEN:
KIN WING LAU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-831-97
STYLE OF CAUSE: KIN WING LAU
-and-
| THE MINISTER OF CITIZENSHIP |
| AND IMMIGRATION |
DATE OF HEARING: APRIL 24, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL, J.
DATED: APRIL 24, 1998
APPEARANCES: Mr. Cecil L. Rotenberg, Q.C.
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD: Mr. Cecil L. Rotenberg, Q.C.
Barristers and Solicitors
Suite 808
255 Duncan Mill Road
Don Mills, Ontario
M3B 3H9
For the Applicant
Mr. George Thomson
Deputy Attorney General
of Canada
For the Respondent