Date: 20000419
Docket: IMM-749-99
Yue Wu Dai,
Applicant
- and -
The Minister of Citizenship and Immigration,
Respondent
REASONS FOR ORDER
[1] The applicant, whose surname is Dai, applied to a visa officer in Hong Kong in January 1999, for something not actually clearly stated in his application to this Court, but most likely for a visa and permanent residence. From this Court the applicant seeks in the second paragraph on p.2 of his application an order for:
| a) a writ of certiorari quashing the negative decision of the visa officer; |
| b) a writ of mandamus directing the respondent to process the applicant's application for permanent residence in a favourable manner, or, in the alternative, referring the matter to a different visa officer for a redetermination of the application for permanent residence with such direction as this... Court deems just; |
| c) such further and other relief as counsel may advise and this Court deems just; ... |
[2] There was considerable discussion and various observations expressed at the hearing on January 25, 2000, as to whether the visa officer could read and understand the applicant's transcript of grades achieved at the Beijing Foreign Languages Institute in the year 1992, in fulfillment of a bachelor of arts degree. There was discussion of what would be the consequence of her comprehension or lack of comprehension. Evidence was later tendered to the Court whereby the visa officer stated that she could and did read and understand the transcript, of which a translation is now filed (Miriam Wadge's affidavit ex. B). Such evidence was tendered by virtue of the Court's consent order dated January 28, 2000. Having put the Court in the position of a comprehending reader of the applicant's transcript of academic grades, this Court observes that the applicant achieved creditably high grades in all of his course examinations.
[3] His average grade on 56 examinations over 4 years was 86.97%. Grading appears to be out of 100 maximum. Among his courses were : written English translation, English composition, translation, interpretation, English language newspapers, current affairs, spoken English, oral comprehension, English grammar, extensive reading in English, among others. The Court finds that the applicant's degree granted by the Beijing Foreign Languages Institute was a degree in a related discipline.
[4] So this Court thought and said at the hearing so that the applicant's expectation was most likely raised to apprehend that if his transcript had been readable by the visa officer, his application would most likely succeed. It does succeed. This Court invokes Lu v. M.C.I., IMM-414-99 cited by the applicant. The applicant's application was unreasonably dismissed by the visa officer on January 25, 1999. Her said decision will be quashed by an order in the nature of certiorari.
[5] In this Court's decision in Xie v. M.E.I., (1994) 75 F.T.R. 125, Mr. Justice Rothstein is reported at p. 125 et seq. as having written : "The Court's jurisdiction on applications for judicial review is found in s. 18.1(3) of the Federal Court Act, R.S.C. 1985, [Chap.] F-7, as amended," and he then and there recited it. Rothstein, J. continued:
| [17] A reading of s. 18.1(3) shows that there is nothing in the subsection that indicates that the court has the jurisdiction to substitute its opinion for that of the tribunal whose decision is under judicial review, and make the decision that the tribunal should have made. If Parliament had intended the court to substitute its decision for that of the board, commission or tribunal whose decision is under review, it could easily have put words in the Act to that effect. (See for example s. 52 of the Federal Court Act in respect of appeals to the Federal Court of Appeal.) As such words do not appear in the Act in respect of judicial reviews to the Federal Court, I am of the view that this court does not have jurisdiction to substitute its decision for that of the tribunal in a judicial review. |
| [18] While the court does have jurisdiction to refer a matter back for redetermination in accordance with such directions as it considers appropriate, it seems to me that the court should only issue directions to a tribunal in the nature of a directed verdict, where the case is straightforward and the decision of the court on the judicial review would be dispositive of the matter before the tribunal. While such cases undoubtedly will arise, as a general rule, the court should leave to tribunals, with their expertise in the matters over which they have jurisdiction, the right to make decisions on the merits based on the evidence before them. |
Also to be noted is Alleti v. M.C.I. (1998) 147 F.T.R. 310.
[6] Such ought to be the type of decision to be rendered in this case. The application is allowed, but referred to a visa officer other than the one whose decision has been reviewed and quashed herein. The other visa officer must determine that applicant's application according to law and according to these reasons, which are not necessarily to be regarded as conclusive for every one of the applicant's fellow graduates of the future, for each case must stand on its own facts.
[7] This Court invokes Federal Court Immigration Rules, 1993, rule 22 and awards no costs to either party.
[8] This is not a case in which there can be discerned a serious question of general importance, mentioned in section 18(1) and (2) of the Federal Court Immigration Rules, 1993. Therefore the Court declines to certify any such question.
Ottawa, Ontario
April 19, 2000
Judge