Digests

Yan v. Canada (Minister of Citizenship and Immigration)

IMM-3832-01

2003 FCT 510, Gauthier J.

24/4/03

10 pp.

Judicial review of visa officer's rejection of application for permanent residence in Canada in independent category-- Applicant citizen of China--Obtained bachelor's degree in science from Fudan University in Shanghai in 1993 and bachelor's degree of medicine from Shanghai University of Traditional Chinese Medicine in 1996--Also completed Microsoft Certified Professional course--At time of application, applicant worked at Shanghai University of Traditional Chinese Medicine primarily as teacher as well as researcher into effects of traditional Chinese massage on withdrawal symptoms of drug addiction--Also performed approximately two to three hours of massage every two or three days--Also claimed experience in providing physiotherapy treatment to certain members of university sports team on "as needed basis"--Applicant asked to be evaluated as research physiotherapist, or as computer programmer and/or system analyst under three distinct occupations provided in National Occupation Classification (NOC)--Received only 61 units--Because applicant's particular background did not conform to requirements set out in NOC for physiotherapist, applicant awarded zero units for occupation and zero units for experience--Same award made regarding occupation and experience as computer analyst-- Given applicant did not have any specific job offer in Canada, these results led to automatic disqualification unless visa officer exercised discretion pursuant to Immigration Regulations, 1978, s. 11(3)--Applicant expressly requesting visa officer to exercise such discretion in letter dated July 21, 1999, from lawyers to Canadian Consulate General--Refusal letter neither referring to request nor giving any indication visa officer addressed her mind to it--No mention of request in officer's CAIPS notes--Even affidavit filed as part of respondent's record silent in that respect--Visa officer's evaluation under Immigration Regulations, 1978, s. 11(1),(2), all pure findings of facts entirely within mandate and all reasonable--Whether visa officer breached duty of fairness to consider applicant's request officer exercise discretion under s. 11(3) of Regulations--Visa officer not obliged to justify decision not to exercise discretion under s. 11(3), but that does not mean need not consider specific request made by applicant --Court can certainly consider absence of reference to s. 11(3) in affidavit of visa officer as element enabling it to infer request of applicant not considered--Visa officer failed to consider request by applicant to exercise discretion under s. 11(3) of Regulations--Applicant seeking order to refer matter back for redetermination under provisions in force at time application originally considered--But Immigration and Refugee Protection Regulations, s. 76(3) providing discretion to overlook fact skilled worker not obtaining minimum number of points, if visa officer believes number of points awarded not sufficient indicator of whether may become economically established in Canada--Request under s. 76(3) will provide opportunity to review unusual circumstances raised by applicant--Application allowed--Immigration Regulations, 1978, SOR/78-172, s. 11 (as am. by SOR/93-44, s. 8)--Immigration and Refugee Protection Regulations, SOR/2002-227, s. 76(3).