Date: 20010131
Docket: IMM-2350-00
Between:
SYED ANJUM AHMED,
Applicant,
- and
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
(Delivered orally from the Bench on January 23, 2001
at Vancouver, British Columbia)
Muldoon, J.
[1] I read this file till I fell asleep over it last night and then woke up this morning and read it again, and I have come to the conclusion that it is too close run, that it is so close that it would not be safe to reject the application. So I am going to allow the application because that will give the respondent an opportunity to reconsider the matter.
[2] I am not suggesting that the respondent has to change its mind. I do not know what the respondent will do because this Court is not the respondent. But this Court has to be satisfied that the respondent did what the respondent was obliged to do and considered what the respondent was obliged to consider. This Court is not satisfied of that.
[3] It indicated on this file are too many instances where the visa officer indicates that he did not consider this, he did not do that, and those are several too many to be safe. It is close run. It could be a razor's edge type of case and in that instance it would appear that the visa officer was obliged to consider 11(3). And it is true that that is permissive: "A visa offer may issue" or "refuse to issue" according to 11(3):
| "may issue an immigration visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 who does not meet the requirements of subsection 1 or 2, or refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by 9 or 10 if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada, and those reasons have been submitted in writing to and approved by a senior immigration officer." |
[4] That is what the law provides and that, it seems, has not been complied with and that would give good reason to invalidate the decision, to quash it.
[5] It just needs to be done thoroughly. If it be done thoroughly, there is no quarrel, probably. But one has to be satisfied that what ought to be done has been done, and from that point of view, this court is concerned about the decision of Madam Justice Reed in the case of Paramveer Jain and the Minister of Citizenship and Immigration where in paragraphs 4 and 5 she said:
| "Counsel for the applicant argues that the visa officer failed to assess the applicant in all his intended occupations, particularly that of an applied chemical technologist. An applied chemical technologist has a greater responsibility than an applied chemical technician. At the same time it is conceded that an assessment as a technologist could lead to an award of no more than 69 points, not the 70 required for the issuance of a visa. Counsel for the applicant cites Uy. v. Canada, Minister of Employment and Immigration [1991] 12 Immigration Law Reports, 2nd edition, 172 Federal Court of Appeal, as authority for the proposition that even if a reassessment cannot lead to an award of 70 points, there are circumstances in which the application should be returned for reassessment because visa officers can exercise discretion pursuant to immigration regulation 11(3) and grant visas when points awarded are below 70. I accept that reasoning." |
And that is good enough for this Court, it seems to this judge, in any event.
[6] This visa officer was asked if he considered that, and said, "Did I? No, I did not." Well, that is falling into the jaws of that noted judicial lion, stalking in this case of Paramveer Jain, and bagged by Madam Justice Reed.
[7] So in all, there's no point in the Court going through the vast mountain of detail in this case at this point. The Court is satisfied that a proper job of assessment was not done in this case and that the matter ought to be referred to a different visa officer for a proper assessment. Whether the applicant succeeds or fails is literally of no concern of this Court on these proceedings. He may fail, he may not, but he's entitled to have the proper assessment with the visa officer considering the proper factors for an assessment.
ORDER
Syed Anjum Ahmed's application is allowed, the visa officer's decision is quashed but the application is referred to a different visa officer in the same embassy to be assessed correctly according to law.
(Sgd.) "F.C. Muldoon"
Judge
January 31, 2001
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2350-00
| STYLE OF CAUSE: Syed Anjum Ahmed |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
DATE OF HEARING: January 23, 2001
| REASONS FOR ORDER AND ORDER OF MULDOON, J. |
| DATED: January 31, 2001 |
APPEARANCES:
| Mr. Peter A. Chapman For the Applicant |
| Ms. Emilia Pech For the Respondent |
SOLICITORS OF RECORD:
Chapman & Company
Barristers & Solicitors
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |