CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Permanent Residents |
Qin v. Canada (Minister of Citizenship and Immigration)
IMM-1263-02
2003 FC 1504, Mosley J.
19/12/03
12 pp.
Judicial review of visa officer's decision refusing applicant permanent residence--Applicant seeking order of certiorari quashing visa officer's decision and order of mandamus directing respondent to process application for permanent residence in favourable manner--Application allowed on basis visa officer erred in not personally conducting interview of applicant pursuant to former Immigration Regulations (former Regulations), s. 11.1(b)--Clear from former legislative scheme Parliament intended "visa officers" be required to interview applicants in certain, prescribed circumstances, namely, those enumerated in s. 11.1--Here, interviewing officer acknowledged on cross-examination on her affidavit, that at time of interview she had not yet been authorized as visa officer--Stated she became "designated immigration officer" pursuant to Immigration Act, s. 109 in April 2002--Duty of fairness not prohibiting delegation of tasks, including delegation of collecting and summarizing facts, provided final decision made by properly designated decision-maker--However, when express statutory authority providing interview to be "conducted" by "visa officer" and term "visa officer" so precisely defined in legislation, such terminology therefore intended to have meaning and purpose --Further, no indication visa officer based decision on any erroneous finding of fact, made in perverse or capricious manner or without regard to material before him--However, discretionary decisions must be made pursuant to procedure mandated in legislation defining parameters of discretion-- Visa officer failed to adhere to legislation by not conducting interview pursuant to former Regulations, s. 11.1(b)-- Applicant not demonstrating case meets requirements to grant mandamus--Application allowed--Immigration Regulations, 1978, SOR/78-172, s. 11.1(b) (as enacted by SOR/92-133, s. 3)--Immigration Act, R.S.C., 1985, c. I-2, s. 109.