Date: 19980529
Docket: IMM-5165-97
BETWEEN:
GUO-YANG XIAO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
HEALD D.J.
INTRODUCTION
[1] This is an application for judicial review which seeks to quash the decision of Designated Immigration Officer Patricia A. Fitzgerald dated November 6, 1997 (the "Visa Officer"). By that decision, the Visa Officer rejected the within applicant's application for permanent residence at the paper-screening (pre-interview) stage. The applicant seeks a further order compelling the reassessment of his application under the Canadian Classification and Dictionary of Occupations ("C.C.D.O.") which was in effect for the purpose of assessing potential immigrants prior to May 1, 1997. The applicant also seeks to prohibit the respondent from refusing the within application without prior communication with the applicant and a further order requiring the respondent to either issue the permanent-residence visa being sought or to schedule an interview. Finally, the applicant seeks his costs of the application on a solicitor-client basis.
THE FACTS
[2] The applicant is a Chinese national. He is a Chef by trade. On April 30, 1997, he submitted his application for a permanent-residence visa. He included supporting material along with a bank draft for $3,150.00 CDN. This material was sent to the Regional Programs Centre of the Canadian Consulate General, Buffalo, New York.
[3] The application, the supporting material, and the bank draft were returned to the applicant with an accompanying note dated May 14, 1997. The note advised that the correct fee was $3,250.00 CDN. It also stated:
| Please note that no record of you [sic] application has been retained in the APC. The contents of your application package are being returned to you with this letter. Once you have the correct processing fee, you should return it along with your completed application package.1 |
[4] The applicant re-submitted the application on May 30, 1997. Included with the application was the original bank draft and an additional money order for $100.00. The application was reviewed by Visa Officer Fitzgerald whose notes read as follows:
| Appears that appln was originally rec on 30 APR 97, however fee was incorrect. Appln was sent back with request for an additional $100. All was re-submitted on 30 May 97, with orig ck for $3150 plus a money order for the additional $100.2 |
[5] Effective May 1, 1997, a new scheme for assessing applications for permanent residency was instituted. The new scheme relies on the National Occupational Classification (N.O.C.), which replaced the C.C.D.O. In the applicant's view this change has a profound effect on this application for judicial review.
[6] The Visa Officer rejected the application on November 6, 1997. The basis for rejection was that the applicant had not obtained a sufficient number of units of assessment to qualify him for immigration into Canada.3 The Visa Officer awarded the applicant the following units of assessment under the N.O.C.:4
AGE 10/10
OCCUPATIONAL FACTOR 10/10
SPECIFIC VOCATIONAL PREPARATION ("SVP")
or
EDUCATION/TRAINING FACTOR (ETF) 7/18
EXPERIENCE 4/8
ARRANGED EMPLOYMENT 0/10
DEMOGRAPHIC FACTOR 8/8
EDUCATION 10/16
KNOWLEDGE OF ENGLISH AND
FRENCH LANGUAGES 0/15
ASSISTED RELATIVE BONUS 5/5
TOTAL (Minimum required: 60)5 54/100
ISSUES
| 1. Application Date: Whether the Visa Officer should have applied the C.C.D.O. criteria instead of the N.O.C. criteria since the application was originally reviewed prior to May 1, 1997; |
| 2. Costs: Whether costs should be awarded on a solicitor-client basis; |
| 3. Questions for certification: Whether any questions should be certified for appeal. |
1. Application Date
[7] Application fees for permanent residency visas are twofold: (a) the "cost-recovery" fee, or application processing fee; and (b), the right-of-landing fee. An applicant for landing is required to pay the processing fee at the time of application. The right-of-landing fee must be paid sometime before the issuance of the visa.6
[8] In this case, the applicant purported to submit both the processing fee and the right-of-landing fee at the time of application. However, his remittance was $100.00 short of the total required. As stated, his application was returned to him with a note requesting the additional $100.00.
[9] In the submission of the respondent, there is no provision in the Act or Regulations that prevents the Minister from requiring that the appropriate and exact fee accompany the application. I do not find this submission persuasive for the following reasons:
[10] Firstly, in stating that it was established, public and well-known policy that applications submitted without the exact fee would not be processed, the Visa Officer made explicit reference to the 1998 application forms which contain such a provision. However, in this case, the applicant used the 1997 application form which contains no such provision;
[11] Secondly, although the Minister may issue guidelines and other non-binding instruments as a matter of administrative practice, even if such a policy existed in 1997, it acted as much more than a mere guideline in this instance: it was clearly mandatory in nature and the application had a legal effect. The Minister's authority to make such requirements is derived exclusively from the relevant legislation: Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at 35. I cannot find any authority in the Immigration Act, the Immigration Act Regulations, 1978, or the Immigration Act Fees Regulations for such a requirement. It is no answer for the Minister to state that nothing in the Act or Regulations prohibit him from making it. His authority must be found in explicit and positive language in a relevant statute or regulation. Here, the Immigration Act Fees Regulations are not even ambiguous on the issue; they are entirely silent on whether applications may be returned for overpayments.
[12] For the foregoing reasons, I have concluded that the Visa Officer should have applied the C.C.D.O. criteria instead of the N.O.C. criteria since the application was received prior to May 1, 1997, namely April 30, 1997, as noted supra.
2. Costs
[13] Rule 400 of the Federal Court Rules, 1998 does not apply to this case. Rule 22 of the Federal Court Immigration Rules governs this immigration proceeding. That rule is not affected by the coming into force of the Federal Court Rules, 1998. Accordingly, Federal Court Immigration Rule 22 applies to this case and necessitates the existence of special reasons. My perusal of this record does not persuade me that special reasons exist in this case. Accordingly, no costs are awarded.
3. Questions for Certification
[14] Counsel for the applicant has submitted eleven questions for certification.
[15] I have not been persuaded that any of the proposed questions are appropriate for certification in the circumstances of this case. Accordingly, no question will be certified.
CONCLUSION
[16] The application for judicial review is allowed, the decision of Designated Immigration Officer Patricia A. Fitzgerald dated November 6, 1997 is set aside and the matter is returned for rehearing and redetermination by a different Designated Immigration Officer on the basis that he or she should apply the C.C.D.O. criteria in effect at the time of the original filing of this application, pursuant to the transitional provisions contained in section 2.03(1) of the Immigration Regulations, 1978 (as amended).
Darrel V. Heald Deputy Judge
OTTAWA, ONTARIO
May 29, 1998
__________________1 Applicant's application record at p. 19.
2 CAIPS Notes, dated September 23, 1997.
3 Applicant's application record at p.3.
4 Applicant's application record at p. 4.
5 Although subparagraph 9(1)(b)(i) of the Immigration Regulations, 1978 fixes the actual minimum at 70 units, an applicant can only obtain a maximum of 10 units at a personal interview. Accordingly, it seems to be the practice to settle for 60 units at the pre-interview stage, excluding the factor of personal suitability which is determined at the interview.
6 Column IV of Item 2 (processing a duly completed application for landing) and of Item 19 (conferral of the right of landing) of Schedule I, Immigration Regulations, 1978 , SOR/97-22, as amended by SOR/97-202, in force April 20, 1997.