IMM-1737-97
Between:
PUI TAK SIK,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent,
REASONS FOR ORDER
Campbell, J.
Let the attached transcript of my Reasons for Order delivered orally from the bench at Vancouver, British Columbia on February 25, 1998 now edited, be filed to comply with section 51 of the Federal Court Act.
(Sgd.) "Douglas Campbell"
Judge
Vancouver, British Columbia
March 2, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
(Before the Honourable Mr. Justice Campbell)
VANCOUVER, B.C.
February 25, 1998
IMM-1737-97
BETWEEN:
PUI TAK SIK,
APPLICANT;
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
RESPONDENT.
MR. G. GOLDSTEIN, Appearing for the Applicant;
MS. W. PETERSMEYER, Appearing for the Respondent.
REASONS FOR ORDER
CAMPBELL, J. (Orally):
| This case involves the very unique circumstances of a Buddhist elder being invited, in fact requested, because of her experience and ability, to come to Canada and serve a congregation as a religious leader. |
| On the face of it, there is no doubt this is a very appropriate case for a positive discretion to be exercised. Indeed, I know that the visa officer who considered this case saw it that way. |
| The context in which the decision making took place was really focused on whether the positive discretion should be exercised, and it appears on the face of the record that the only issue that was really outstanding was whether the invitation was thoroughly bonafides. And in particular, I am referring to the May 30th, 1996 entry in the computer log. |
| I find that that entry creates an expectation. The expectation is that, just to answer the bonafides question, an independent analysis to be done by the Canada Employment Service in Vancouver was required. The applicant was told this, and the decision-making process went on a hold awaiting that result. In more than a year the answer did not come back. The decision maker then decided to proceed, and while she says that she gave the applicant the benefit of the doubt, there is a sharp shift in the focus between May 30th, 1996 and the date of this decision. |
| Therefore, I find that an obligation was created on May 30th, 1996 and it was not met. The obligation was to obtain further information and advise the applicant of the results of the inquiry, and I think as well to provide an opportunity for further argument. I consider the failure to meet that obligation an error in due process which is a reviewable error in this case, and accordingly, I set this decision aside. |
| I refer this matter back to another visa officer for reconsideration with the directions that the decision not be made until the questions are answered, as contained in the memorandum of February 8, 1996, and, thereafter, an opportunity is provided to the applicant to respond to the answers. |
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: February 25, 1998
COURT NO.: IMM-1737-97
STYLE OF CAUSE: Pui Tak Sik
v.
MCI
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF CAMPBELL, J.
dated March 2, 1998
APPEARANCES:
Mr. Gerald Goldstein for Applicant
Ms. Wendy Petersmeyer for Respondent
SOLICITORS OF RECORD:
Evans, Goldstein & Eadie for Applicant
George Thomson for Respondent
Deputy Attorney General
of Canada