Date: 20020118
Docket: IMM-2875-01
Neutral Citation: 2002 FCT 58
Between:
LU WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review with respect to the decision of Amitys Salas, a visa officer at the Canadian Embassy in Paris, France dated May 16, 2001, determining that the applicant did not meet the requirements for immigration to Canada in the independent category.
[2] The applicant is a citizen of China. He submitted his application for permanent residence under the occupation of editor (National Occupational Classification code 5122.0).
[3] The application could not succeed as the applicant did not have the work experience necessary in that occupation. In her decision, the visa officer stated:
Section 11(1) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of "experience in an occupation for which they are qualified and are prepared to follow in Canada", unless the immigrant has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience. You do not meet these requirements because you were not able to satisfy me that you have the work experience you mention to have.
[4] The standard of proof to be applied by a visa officer in assessing an application for permanent residence in Canada is proof on a balance of probabilities (see, for example, the recent decision in Quang Minh Bui v. The Minister of Citizenship and Immigration (October 30, 2001), IMM-5781-99, 2001 FCT 1178).
[5] In the case at bar, the visa officer refused the applicant's application because the latter was not able to satisfy her that he had the work experience he said he had. The following abstract of the transcript of the visa officer's cross-examination on her affidavit makes it clear that she required the applicant to satisfy her of his experience beyond any doubt:
Q Now, you mention in the refusal letter that the applicant was not able to satisfy you that he had the work experience that he said he had. Correct?
A Correct.
Q What standard are you applying when you use the words satisfy you? What does he have to do to satisfy you?
A By accurately answering the question he was asked to about his work experience.
Q Well, what I mean is this. Does he have to satisfy you to the point where you don't have any doubts that what he's telling you is true?
A Yes, that's the case.
[6] Given this evidence, like in Quang Minh Bui, supra, I am satisfied that "a material error of law was committed in the visa officer's analysis of the evidence in this case in that a standard of proof that was too rigorous was applied".
[7] Consequently, the application for judicial review is allowed and the matter is sent back for redetermination by a different visa officer who is to assess it using the balance of probabilities as the standard of proof.
JUDGE
OTTAWA, ONTARIO
January 18, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2875-01
STYLE OF CAUSE: Lu Wang and the Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: December 12, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD DATED: January 18, 2002
APPEARANCES:
Mr. Peter A. Chapman FOR APPLICANT
Ms. Rama Sood FOR RESPONDENT
SOLICITORS OF RECORD:
Chapman and Company Law Corporation FOR APPLICANT Barristers and Solicitors
Mr. Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada