Federal Court Decisions

     IMM-201-96

BETWEEN:

     MOU, Huai Chuan Kevin,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

LUTFY J.:

     The applicant, a citizen of China, applied for permanent residency for

himself as principal applicant and for his spouse and son as dependants. The principal application was assessed pursuant to section 8 and Schedule 1 of the Immigration Regulations, SOR/78-172 (the "Regulations").

     The applications were processed in the consular office in Buffalo, N.Y. and considered by Ms. Claire Wittenberg in her capacity as visa officer (the "Visa Officer"). The applicant was interviewed by the Visa Officer on November 16, 1995. The Visa Officer attributed sixty-eight units of assessment pursuant to Schedule 1 of the Regulations, two short of the required minimum of seventy. Her decision to refuse the application for permanent residency was communicated to the applicant on November 20, 1995. It is this decision which is under judicial review.

     The applicant's intended occupation in Canada is that of a linguist. He holds the equivalent of a Master of Arts degree from the Department of Chinese Language and Literature of Shanghai Teachers University. He is presently engaged as a doctoral student and teaching assistant at the University of British Colombia.

     There are, in my view, errors in law in the Visa Officer's assessment of units which have caused me to conclude that this application for judicial review should be granted. These errors were made in the Visa Officer's assessment of the applicant's personal suitability, his education and the age factor.

     In her consideration of the applicant's personal suitability, the Visa Officer awarded five out of a maximum of ten units. Her reasons are succinctly expressed in her notes. In her view, the marketability of the applicant's qualifications as a linguist in ancient Chinese language and literature appears uncertain.

     The applicant was assessed one unit out of a maximum of ten for occupational demand. Under this factor of assessment, the applicant's employment opportunities as a linguist are determined by considering "labour market demand" pursuant to departmental guidelines. The low assessment of one unit reflects the chances of marketability for the applicant's intended occupation.

     The Visa Officer's consideration of the "marketability" of the applicant's intended occupation under the personal suitability factor constitutes "double counting", in my opinion, a practice which has been characterized as an improper exercise of discretion by the Court of Appeal in Zeng v. Canada, (1991), 12 Imm. L.R. (2d) 167 at 171. Even if the Visa Officer was referring specifically to the limited marketability of the applicant's expertise in Chinese language and literature quite apart from the market demand for linguists generally, the result is the same. The applicant was assessed less units under both personal suitability and occupational demand for the same considerations. This error in itself justifies the reconsideration of the applicant's application for permanent residence.

     In addition, in my view, the Visa Officer incorrectly awarded fifteen units under the education factor because of her characterization of the applicant's Master of Arts degree from Shanghai Teachers University as a "first-level university degree". After the applicant successfully passed a comprehensive exam, the University of British Colombia recognized his Master of Arts degree and accepted him in its doctorate program. The Visa Officer was aware of this. The applicant should have been awarded sixteen units for his "second-level university degree".

     On the basis of these errors alone, it is appropriate to grant this application for judicial review. An issue is likely to arise, however, during the reconsideration of these applications for permanent residency with respect to the age factor units to be assessed to the applicant and with respect to the age of his dependant son at the time the application was filed. When were the applications formally made or, in other words, when were the rights of the applicant and his dependants "locked-in"? There appears to be no specific and clear provision in the applicable legislation and regulations upon which to determine the lock-in date.

     Subsections 3(2) and 3(3) of the Immigration Act Fees Regulations, SOR/86-64 (the "Fees Regulations"), require that the processing fees for the principal applicant and for the dependants respectively are payable at the time the applications for landing are made. Similarly, section 26 of the Fees Regulations requires that the right of landing fee is payable at the time of the application for an immigration visa. The provisions do not specifically stipulate that none of the applications will be deemed received until the processing and right of landing fees for each of the principal applicant and the dependants have been paid. However, this appears to be the manner in which the Visa Officer considered the applicant's application for permanent residence.

     The record indicates that the process required three separate IMM-8 forms, one for each of the principal applicant and his dependant spouse and son. Section 9 of the Immigration Act, RSC 1985, c. I-2 (the "Act"), and subsections 3(2) and 3(3) of the Fees Regulations do not provide clear language as to whether one or three applications are in issue.

     In Wong v. The Minister of Employment and Immigration, (1986), 64 N.R. 309, the Court of Appeal concluded at page 311; "...that an application for an immigration visa is made when it duly initiates the process leading to the issue or refusal of the visa and not only when that processing is committed to the particular official authorized to dispose of the application." In reaching this conclusion, it was noted at page 311: "Nothing in the Act or Regulations discloses a legislative intention that form, in the circumstances, prevail (sic) over substance." In that case, the time of the partially completed application form was said to be the operative date. Otherwise, the dependant child would have lost certain rights because of his change of age by the time the application forms were fully completed.

     In Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763, the Court of Appeal chose the date of completion of a pre-application questionnaire as the lock-in date even though the application and fee were received subsequently. During the interval, the number of units for the occupational demand of the intended employment of the applicant Choi had changed to his disadvantage.

     In Yeung v. Canada (Minister of Employment and Immigration), (1992), 17 Imm. L.R. (2d) 191 (F.C.T.D.), it was held that the assessment should be based on "...the date of the original application and payment of fee". In that case, the applicant's rights were protected by locking-in the application date and not the subsequent time that had been used by departmental officials. The application and fee had been received simultaneously. The decision in Yeung did not have to resolve the issue of insufficient fees accompanying the application.

     In Maharaj v. Minister of Citizenship and Immigration, [1995] F.C.J. No. 1495, the fees which accompanied the application were not in the proper currency. This error was not corrected until some seven months later which was determined to be the lock-in time for the assessment of the application. During the seven month interval, the units awarded under the educational factor had been changed. As a result, the applicant in Maharaj failed to pass the paper screening and was not interviewed.

     In June 1996, Citizenship and Immigration Canada published the Immigration Manual - Overseas Processing. Chapter OP1, General Procedural Guidelines at paragraph 3.4.1 provides direction to officials on how to determine the lock-in date:

The lock-in date is the day the Department has physical possession of either an application for permanent residence in Canada (IMM-8) or if applicable, an undertaking to sponsor (IMM-1344), as well as the correct and complete fees (cost recovery processing fees and Right of Landing Fee).

The document also notes that neither the Act nor its Regulations defines "lock-in date".

     The applicant's material was first received on April 12, 1995 with a payment of $2,950 for processing and landing fees. On April 19, 1995, a consular official returned the money order and requested payment of an additional $100. The payment of the higher amount of $3,050 was received on April 26, 1995. If the applicant's application had been deemed to be received on April 12, 1995 instead of April 26, 1995, he would have received two units for the age factor. The applicant was assessed no units under this heading, presumably because his application was deemed to be received on April 26, 1995, four days after his forty-ninth birthday on April 22, 1995.

     The payment of $2,950 most likely represents the $500 processing fee and the $975 right of landing fee for each of the applicant and his spouse pursuant to section 3 and section 26 respectively of the Fees Regulations. There is no specific evidence in this regard and the statement is made upon a review of the fee schedule in the Fees Regulations. If the analysis is correct, no fee was included for the son.

     On April 12, 1995, when the applicant's material was first received, his son was under nineteen years of age. Pursuant to paragraph 3(3)(a) of the Fees Regulations, the processing fee for a dependant under nineteen years of age is $100. The sons's nineteenth birthday was on April 16, 1995. A consular official requested the payment of $3,050 on April 19, 1995, when the son was no longer nineteen years of age. In so doing, the son's fee may have been set at $100 on the basis of the material having been received on April 12, 1995 when he was under nineteen years of age. In this circumstance, no right of landing fee was payable for the son. Alternatively, the consular official erred in neglecting to charge the processing fee of $500 pursuant to paragraph 3(3)(b) and the right of landing fee of $975 pursuant to section 26 for dependants at least nineteen years of age at the time of the application. This would have required a total payment of $4,425. In any event, the principal application was processed upon receipt of $3,050 on April 26, 1995.

     In the present case, the applicant's application for permanent residence was assigned a file number (B 032 745 576), one which has remained the same throughout the process, as early as the consular letter of April 19, 1995 requesting the additional funds. The letter acknowledges receipt of the application at the Immigration Area Processing Center. The letter requests the resubmission of the processing fee with no reference to the landing fee or to the submission of a new application. The form letter may not have been amended since the introduction of landing fees on February 28, 1995 (SOR/95-120), pursuant to section 26 of the Fees Regulations.

     On April 19, 1995, the applicant was not yet forty-nine years old and was still eligible for two units. The funds that had been received by the consular official on April 12, 1995 were sufficient to cover the processing and landing fees of both himself and his spouse. In requesting the additional $100 on April 19, 1995, the consular official was either locking-in the date of April 12, 1995 when the application was received or erroneously requesting insufficient additional funds. The application was nonetheless processed.

     The only notation in the Visa Officer's record concerning the age factor is that she awarded no units. Her affidavit is silent on the age factor issue. In paragraph 3 of her affidavit, she asserts: "Les frais requis ont été reçus le 26 avril 1995." This affirmation is factually incorrect if she intended to convey that sufficient fees were received for the principal applicant, his spouse and his son as of April 26, 1995 unless, of course, she was using a lock-in date of April 12, 1995 in which case two units should have been awarded to the applicant for the age factor.

     The consular official may not have intended to set the lock-in date at April 12, 1995 in requesting only $100 in additional fees. Even so, there was no more valid reason, in my view, for the Visa Officer to choose April 26, 1995 as the operative date because sufficient fees were still not in hand. It is because of these exceptional and unusual circumstances, substantially different than those in Maharaj, that I have concluded that the rights of the applicant should be assessed as of April 12, 1995 when the application forms together with sufficient fees for both himself and his spouse had been received.

     The applicant's son is not a party to this proceeding. His application for permanent residency will only be addressed in a definitive manner if his father's application is granted upon reconsideration. However, it would be unfortunate if the proper exercise of discretion could not assure that his rights were not prejudicially affected by the errors of both the applicant and the respondent in the calculation of the son's fees.

     The necessity for a clear lock-in date, one that will be within the control of the applicant and not subject to arbitrary determination, was emphasized by MacGuigan J.A. in Choi (supra) at p. 767:

Any other date except the date of application would be purely arbitrary as a "lock-in" date for the occupational demand factor, depending solely on the vagaries of the administrative process. The application date is the only date within the control of the applicant, and is consequently the only date that can be established without arbitrariness.

     The Fees Regulations require that the processing fee and, more recently, the right of landing fee are payable at the time the application is made. Administrative efficiency may well dictate that all the fees for the principal applicant and the dependants be paid before the rights of anyone of them are locked-in. However, I have found no statutory or regulatory provision which clearly allows for this practice. It has not been necessary to address this issue definitively in this case. The conclusion to lock-in the applicant's rights as of April 12, 1995 for the age factor is, in my view, the only fair and appropriate one in the exceptional circumstances set out in these Reasons.

     The application for judicial review is granted and the applicant's application for permanent residence is referred for reconsideration by a different visa officer in a manner not inconsistent with these Reasons.

                         Allan Lutfy

                         Judge

Ottawa, Ontario

January 24, 1997