Date: 19990723 Docket: IMM-1983-98
BETWEEN:
GUANGQUAN TANG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
TEITELBAUM J.
Let the attached transcript of my Reasons for Order delivered orally from the Bench in Vancouver, British Columbia, the 71' day of July, 1999, (now edited) be filed to comply with s. 51 of the Federal Court Act.
(Sgd.) "Max Teitelbaum" Judge
DATED at Ottawa, Ontario this 23rd day of July, 1999.
FEDERAL COURT OF CANADA TRIAL DIVISION
VANCOUVER, B.C. July 7, 1999
IMM-1983-98 BETWEEN:
GUANGQUAN TANG,
APPLICANT;
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
RESPONDENT.
MR. D. PAGE, Appearing for the Applicant;
MR. M. SHEARDOWN, Appearing for the Respondent.
REASONS FOR JUDGMENT TEITELBAUM, J.:(Orally)
This is an application for judicial review to review the decision of Mr. Gregory Chubak, a decision that is dated February 26th, 1998 wherein the Vice Consul (Visa officer) allowed a total of 66 points while a minimum of 70 is required in order to enable the Applicant to come to Canada.
The Applicant's submission is based on three elements in the decision of the Visa officer: education, personal suitability, and the ability
to speak the English language.
I will first comment on the issue of the fact of the respondent failing to submit an affidavit from the Visa Officer.
With all due respect, I find it difficult to understand why the respondent failed to file such an affidavit, but of course it is for the
respondent to prepare its case in the manner it sees best. Obviously the respondent felt that an affidavit was not required, and the respondent relied on the CAIPS notes prepared by the Visa Officer.
With regard to the issue of the English language, I am satisfied that the award of two points is reasonable. The CAIPS notes speak of
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the fact that at the interview the Applicant spoke English but with difficulty.
I also note that in the affidavit filed by the Applicant, sworn to on the 22nd day of April 1998, there is an interpreter's declaration which states that the interpreter had to translate the complete contents of these pages to the Applicant from the English language to the Chinese language. This also indicates to me, not that the Applicant does not have any knowledge of the English language, but that he in all likelihood has difficulty with the English language.
It is within the discretion of the Visa Officer to award the points that he did, in that he concluded from having interviewed the Applicant that the Applicant spoke English with difficulty. Therefore he awarded the Applicant two points. As I have stated, I see no error in the decision of the Visa officer to award two points. I am satisfied that from the documents that were presented to the Visa Officer with regard to the Applicant's education, and having read the affidavit of the Applicant, that the Visa officer erred in awarding the Applicant ten points for education when thirteen points should have been awarded.
As I have stated to Counsel for the Respondent, and because I do not have an affidavit from the Vice-Consul, I am not in a position to infer anything from the CAIPS notes with regard to the issue of education and accept what the
'N :7
Applicant states in his affidavit as being
correct.
The issue of personal suitability troubles me, and again I don't have an affidavit from the Vice-Council to tell me how he concluded that the individual is entitled to five points for this item.
There is no doubt, and it is trite law, that
the Visa officer discretion in determining the issue of personal suitability.
The Visa Officer sits and speaks to the Applicant, sees the Applicant, and asks the Applicant questions as to what he has done towards establishing himself in Canada so that the individual Applicant can become a good citizen, and that means partake in the "Canadian way of life" and ensure that he obtains employment so that he can support himself and his family. But in this particular case the family was not accompanying him and the Applicant was coming by
has wide
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himself.
There was an issue of whether there was one or two informal job offers before the Visa Officer.
In the CAIPS notes the Visa officer speaks of an informal job offer, in the singular, while the Applicant states that there were two informal job offers. Again, it was for the respondent to file an affidavit in reply to the affidavit filed by the Applicant, and it could have been easily stated whether or not only one or two job offers, that is, the evidence of one or two job offers, were placed before the Visa Officer. I do not have that.
I ask myself whether or not I can infer, because the Visa officer only put in the issue of job offer in the singular, it means that only the one informal job offer was made. I cannot do that and I do not intend to do that.
And I do not know whether or not the Visa Officer might have given one or more points on the issue of personal suitably. The three points with regard to education, and maybe one or more points with regard to the issue of personal suitability, would have brought the Applicant up to 70 points. I am satisfied that the application for
judicial review should be allowed, that the matter
should be returned for a new hearing before a
different Visa Officer, and that at the new
hearing the Visa officer should once again review
all of the evidence that may be presented with
regard to education, personal suitability, and any
other heading that has to be determined.
I HEREBY CERTIFY THAT THE FOREGOING is a true and accurate transcript of the proceedings herein to the best of my skill and ability.
D.A. Bemister, Court Reporter
FEDERAL COURT TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1983-98
STYLE OF CAUSE: Re Guangquan Tang
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 7, 1999
REASONS FOR ORDER OF TEITELBAUM J. dated July 23, 1999
APPEARANCES BY:
Ms. Carolyn Laws for the Applicant Barrister and Solicitor
Mr. Mark Sheardown for the Respondent Department of Justice
SOLICITORS OF RECORD:
Ms. Carolyn Laws for the Applicant Barrister and Solicitor - Vancouver, BC
Morris Rosenberg for the Respondent Deputy Attorney General
of Canada