Date: 19990909
Docket: IMM-2704-98
BETWEEN:
FUXUE MA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] The applicant Fuxue Ma applied for permanent residence in Canada in the independent category as either a chef-cook, general or a claims adjuster (marine insurance), as those terms are defined in the CCDO. He was assessed only as a claims examiner. His application was denied after an interview.
[2] It is apparent that the negative decision with respect to Mr. Ma's application as a chef-cook turned on the visa officer's conclusion that a certain certificate of qualification was not genuine.
[3] Mr. Ma has submitted an affidavit indicating that the visa officer questioned him about the genuineness of the certificate. He asserts in his affidavit that the certificate is genuine. He also says that when questioned by the visa officer, he insisted that the certificate was genuine and that he could obtain further evidence to establish its genuineness. The visa officer accused Mr. Ma, in the interview, of fabricating the certificate and lying about it.
[4] Mr. Ma has submitted evidence that, if accepted, would establish that the certificate is genuine. His evidence is not contradicted by any affidavit evidence submitted by or on behalf of the visa officer.
[5] The assessment of the genuineness of documents submitted in support of an application for permanent residence is a matter for determination by the visa officer. In this case, the visa officer made such an assessment and concluded that the certificate was not genuine. The question before me is whether that conclusion was reasonably open to the visa officer.
[6] The visa officer has submitted no affidavit to explain how he concluded that the certificate was not genuine. The tribunal record contains CAIPS notes that provided some discussion of the issue, but the explanation is incomplete, and in any event the CAIPS notes are not supported by an affidavit of the visa officer who made them.
[7] Given the uncontradicted evidence of the applicant that the certificate was genuine, I am prepared to infer that the visa officer erred in assessing the genuineness of the certificate.
[8] The application for judicial review is allowed and the decision of the visa officer is set aside. The application for permanent residence is to be referred for reconsideration by a different visa officer on the basis of the Regulations in force when the application was made, or the new regulations if more favourable to the applicant. As no costs were sought, none are awarded.
"Karen R. Sharlow"
JUDGE
TORONTO, ONTARIO
September 9, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2704-98 |
| STYLE OF CAUSE: FUXUE MA |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: WEDNESDAY, SEPTEMBER 8, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: SHARLOW J. |
| DATED: THURSDAY, SEPTEMBER 9, 1999 |
| APPEARANCES: Mr. Mark Rosenblatt |
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD: Mark Rosenblatt
Barrister & Solicitor
335 Bay St., Suite 1000
Toronto, Ontario
M5H 2R3
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990909
Docket: IMM-2704-98
Between:
| FUXUE MA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |