Date: 20000525
Docket: IMM-2994-99
BETWEEN:
BAN LAN CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] This is an application under s. 18.1 of the Federal Court Act for a Judicial Review of a decision of a visa officer (the "Visa Officer") of the Canadian Consulate General"s office in Hong Kong refusing the Applicant"s application for permanent residence in Canada.
[2] The Applicant submitted his application for permanent residence to the Canadian Embassy in Beijing under the Independent category as a Programmer (engineering and scientific) in 1996 and on 3 August 1998 the file was transferred to the Canadian Consulate General"s office in Hong Kong.
[3] The Applicant received diplomas in Electronic Technique and Automatic Control from Nanjing University in Nanjing, People"s Republic of China, in 1992, and Computer Science and Application from Southeast University in Nanjing in 1997. The Applicant began work as a programmer in 1992.
[4] The Applicant was interviewed by the Visa Officer at the Canadian Consulate General"s office in Hong Kong on 18 May 1999 and was later informed by letter dated 21 May 1999 that his application for permanent residence was refused because he was allotted only 68 points out of the required 70. The points allotted are as follows:
| Age 10 |
| Occupational Demand 10 |
| Specific Vocational Preparation 15 |
| Experience 6 |
| Arranged Employment 0 |
| Demographic Factor 8 |
| Education 13 |
| English 2 |
| French 0 |
| Personal Suitability 4 |
| Total 681 |
[5] The present application concerns the allotment of the 4 points out of a possible10 in the category of personal suitability. In arriving at this allotment, the Visa Officer says in her affidavit filed in response to the present application that she considered factors such as the Applicant"s "lack of support network in Canada, his apparently minimal job search efforts, and his lack of a contingency plan in the event that he could not find work".2
[6] The finding respecting the Applicant"s "apparently minimal job search efforts" is challenged on a point of due process.
[7] The Applicant"s evidence on this issue is as follows:
| The visa officer also asked me how I had prepared myself for the job market in Canada. My answer was that I had searched a number of internet web-sites for job and labour market information including the Human Resources Development Canada web-site. On that web-site I had found information on unemployment rates for Canada in general (10%) and Toronto in particular (7%). |
| I also advised the visa officer that I had registered my resume on a number of employment search websites such as "hot jobs" and "monster " jobs. When she asked if I had downloaded anything to confirm that I had done so I replied that I had not but I did write down my user name and password and offered them to the visa officer but she did not accept them or even look at them. |
| At no time before the interview was I advised that it was necessary for me to bring along evidence to confirm job searches I had made. |
| At no time before the interview was I advised that it was necessary for me to bring along evidence to confirm that I had registered for employment with any agencies including internet websites. |
| I do not recall being asked during the interview to provide evidence to confirm that I had searched the internet for job information.3 |
[8] The Visa Officer"s evidence on the same issue is as follows:
| I asked Mr Chen what he had done in terms of looking for a job in Canada. Mr Chen claimed to have downloaded some information from the Internet regarding employment opportunities in Canada but was not able to provide any proof of this at the interview. |
| Mr Chen further claimed to have registered with the "Hot Jobs" employment search website on the Internet but he was unable to provide any substantiating documents with respect to this claim. I do not recall Mr Chen ever offering to provide me with his user name or password for any employment search websites with which he claimed to be registered. |
| Although prior to the interview I did not ask Mr Chen to bring written documentation substantiating his job search efforts, my expectation is that applicants will bring to an interview as much documentary proof as possible to corroborate their claims. Applicants are expected to be aware that immigration officials are attempting to determine if they have solid job prospects in Canada. Paper copies of job searches on the Internet are easily obtainable, and I would expect that someone who had searched for a job on the Internet would have printed off information relating to possible jobs. Since Mr Chen was unable to provide me with any documentary proof of his Internet job search efforts, I questioned the extent to which he had actually looked for work in Canada on the Internet.4 |
[9] There is no question that the onus is on the Applicant to proof his suitability, but under the circumstances, in my opinion, it was unfair to judge his failure to bring paper copies of downloaded information in such a strict manner.
[10] In the present case the Visa Officer made a negative finding on suitability which is, in fact, really a negative finding of credibility. If the Visa Officer believed the Applicant in what he said to her, she would not have required the documentary evidence. There is no reason on the face of the record for the Visa Officer to be suspicious about what the Applicant said, and on this basis, the Visa Officer"s expectations were unwarranted.
[11] On the evidence, the Applicant did not have notice that bringing documentary proof of electronic searches was necessary. Failing such notice, if after commencing the interview the documentary proof was considered necessary, in my opinion, the visa officer should have provided the Applicant with an opportunity to obtain the documentary evidence and file it at a later date. Or, better yet, the Internet could have been searched then and there to find proof of the Applicant"s efforts. As indicated above, during the interview the Applicant provided his user name and password to facilitate such a search, and even though the visa officer attests that she does not recall this being done, if the Applicant"s offer had been acted upon the desired proof would have been immediately obtained.
[12] In my opinion, in a close case such as the Applicant"s, it was unfair and a breach of due process for the Visa Officer to impose her expectations upon the Applicant in reaching a decision.
[13] Accordingly, I set the Visa Officer"s decision aside and refer this matter to another visa officer for redetermination.
(Sgd.) "Douglas Campbell"
Judge
May 25, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2994-99
STYLE OF CAUSE: BAN LAN CHEN
v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: MAY 23, 2000
REASONS FOR ORDER OF CAMPBELL J.
DATED: MAY 25, 2000
APPEARANCES:
Mr. Dennis Tanack FOR PLAINTIFF
Ms. Rama Sood FOR DEFENDANT
SOLICITORS OF RECORD:
Dennis Tanack
Barrister & Solicitor FOR PLAINTIFF
Vancouver, BC
Morris Rosenberg
Deputy Attorney General FOR RESPONDENT
of Canada
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