Date: 20000817
Docket: IMM-6000-98
BETWEEN:
DEHUA CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McDONALD J.A.
[1] This is an application for judicial review of a visa officer"s refusal of the applicant"s application for permanent residence in Canada.
[2] The applicant makes five submissions. First, he submits that the visa officer under-assessed the Educational Training Factor by awarding only 7 points which he says should have been 15. This would mean that his point total under experience would have been 6 and not 4 bringing his total score to 64 rather than the 54 that was assecessed.
[3] Second, he submits that the visa officer disregarded credible, uncontroverted facts in deciding that he did not merit the exercise of positive discretion in his favour.
[4] Third, he argues that the visa officer improperly fettered her discretion by only considering whether the applicant had enough points, and not whether he adduced evidence that would overcome the rebutable presumption of the points system.
[5] Fourth, the respondent should have produced an affidavit from the visa officer.
[6] Lastly, the applicant argues that special reasons exist of an award to him of costs.
[7] On the final two points, I find no merit to the suggestion that an affidavit of the visa officer should be produced presumably for the purpose of cross-examination. Similarly, the costs argument is equally without merit.
[8] The applicant"s argument on points two and three is essentially that the officer simply added up the points assessed with no consideration for residual discretion under section 11(3). However, in her letter of rejection the visa officer says "I have carefully assessed and investigated your training and experience", which suggests that she did consider whether to exercise her discretion pursuant to 11(3). The points assessed fell far short of what was required and on the evidence I am not persuaded that the failure to exercise a positive discretion under 11(3) was unreasonable.
[9] On the applicant"s first point, I have been unable to find on the evidence that the methodology followed by the visa officer was improper in any respect. There is simply no evidence of bad faith or abuse of discretion on the part of the visa officer and as a result the application for judicial review will be dismissed.
"F. J. McDonald"
J.A.
Toronto, Ontario
August 17, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-6000-98 |
| STYLE OF CAUSE: DEHUA CHEN |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: THURSDAY, AUGUST 17, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: MCDONALD J.A. |
DATED: THURSDAY, AUGUST 17, 2000
| APPEARANCES BY: Mr. Timothy E. Leahy, Esquire |
| For the Applicant |
| Ms. Catherine Vasilaros |
For the Respondent
| SOLICITORS OF RECORD: Timothy E. Leahy, Esquire |
Barrister and Solicitor
5075 Yonge Street, Suite 408
Toronto, Ontario
M2N 6C6
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000817
Docket: IMM-6000-98
BETWEEN:
DEHUA CHEN
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |