Date: 19980818
Docket: IMM-1609-98
BETWEEN:
KIN LEUNG (RICKY) YAU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
[1] The applicant is seeking Judicial Review of a decision of a Visa Officer and brings two Motions. The first is to be permitted to file an additional Affidavit and the second, for an extension of time within which to file his record including the affidavit. At the time the applicant filed his Application for Judicial Review, he was of the opinion that he had been turned down as a self-employed immigrant for two reasons mentioned by the Visa Officer in his letter of rejection. These two reasons were:
| (a) that the applicant had no experience as a self-employed buyer; |
| (b) that landing the applicant would result in no significant economic benefit to Canada. |
[2] In his affidavit filed in opposition to the applicant, the Visa Officer suggests that he had additional reasons to reject the applicant. First, the applicant had not supplied him with up-to-date financial data; in any event, his financial assets were insufficient for his purposes. Second, because the applicant had not conducted any research into the Canadian market. Third, because the applicant had no business plan. Possibly also, he was assessed as an intending importer rather than an intending buyer's agent.
[3] By the time the additional grounds for refusal were known, there was only one remaining day to file affidavits and the applicant was in Hong Kong. The applicant therefore seeks leave to file an additional affidavit late.
[4] Assuming that the Visa Officer has refused the applicant relying on facts that were not drawn to the applicant's attention, and with respect to which the applicant at the hearing was given no opportunity to comment, is it appropriate that at this time the applicant be given opportunity to supplement the information supplied at the original hearing?
[5] In considering the proposed supplementation, I first look at the purpose of the proposed review. It is not to appeal the decision of the Visa Officer, it is rather to decide whether the procedure of the Visa Officer can be faulted. The proposed affidavit deals with the procedure at the hearing, and it is in my view substantially concerned with the lack of opportunity to comment on the subjects which the Visa Officer now says were considered by him in reaching the conclusion to refuse the visa. The proposed affidavit does provide evidence which was not before the Visa Officer. However, that evidence will not be considered for the purpose of deciding the Visa Officer's decision was wrong but rather for the purpose of showing that evidence of such a nature was available had the Visa Officer indicated a need to produce it. The affidavit also explains why a business plan and a proof of worth were not placed before the Visa Officer in case they should be needed. Namely, because they had been stolen some two days before in San Francisco.
[6] In addition, the proposed affidavit makes an attempt to resolve what I think of as the terminology problem. The proposed business of the applicant has been variously described as buyer, importer, trader, free-lance buyer, garment importer/exporter, supplier and buyer's agent.
[7] While the amount of evidence appears to be directed to proving that the Visa Officer decision was wrong, I am satisfied that such excess does not obscure the usefulness of the evidence in supporting an attack on the process.
[8] I will, therefore, allow the suggested affidavit to be filed. The applicant should also be permitted time to file a record containing the affidavit ordered.
[9] The affidavit of Kin Leung (Ricky) Yau, the subject of the Motion filed June 10th, 1998, may be filed on or before 4 p.m. August 27th, 1998. The applicant's record may be filed at the same time.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
August 18, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1609-98
| STYLE OF CAUSE: KIN LEUNG (RICKY) YAU |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF DISPOSITION: TUESDAY, JUNE 11, 1998
PLACE OF DISPOSITION: TORONTO, ONTARIO
REASONS FOR ORDER BY: GILES, A.S.P.
DATED: TUESDAY, AUGUST 18, 1998
| SOLICITORS OF RECORD: Benjamin J. Trister |
| Greenberg Trister Turner |
| Barristers & Solicitors |
| 401 Bay Street, Suite 3000 |
| Toronto, Ontario |
| M5H 2Y4 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980818
Docket: IMM-1609-98
Between:
| KIN LEUNG (RICKY) YAU |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
| AND ORDER |