Feng v. Canada (Citizenship and Immigration)
Court headnote
Feng v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2004-03-29 Neutral citation 2004 FC 477 File numbers IMM-5805-01 Decision Content Date: 20040329 Docket: IMM-5805-01 Citation: 2004 FC 477 Toronto, Ontario, March 29th, 2004 Present: The Honourable Mr. Justice Campbell BETWEEN: JUAN LING FENG Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [1] In the present case, by a decision dated December 3, 2001, the Applicant was denied permanent residence in Canada as she did not gain sufficient points on her evaluation by the Visa Officer. Prior to the decision being made rejecting her application, Counsel for the Applicant asked, by way of a letter dated August 13, 2001, that positive discretion be applied under s.11(3) of theImmigration Act Regulations. The letter was not received by the Visa Officer concerned. [2] As a result, the final decision was made by the Visa Officer without knowledge of the request that positive discretion be exercised. It is agreed that, had knowledge existed, the Visa Officer owed a duty to enter into a s.11(3) inquiry. [3] On August 31, 2001, a letter was sent by counsel for the Applicant which stated as follows: "Further to our letter dated August 13, 2001, enclosed please find the updated application form for Ms. Feng Juan Ling and family". There is no doubt that the August 31st letter was received by the Visa Officer. [4] I find that, as a matter of due process,…
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Feng v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2004-03-29 Neutral citation 2004 FC 477 File numbers IMM-5805-01 Decision Content Date: 20040329 Docket: IMM-5805-01 Citation: 2004 FC 477 Toronto, Ontario, March 29th, 2004 Present: The Honourable Mr. Justice Campbell BETWEEN: JUAN LING FENG Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [1] In the present case, by a decision dated December 3, 2001, the Applicant was denied permanent residence in Canada as she did not gain sufficient points on her evaluation by the Visa Officer. Prior to the decision being made rejecting her application, Counsel for the Applicant asked, by way of a letter dated August 13, 2001, that positive discretion be applied under s.11(3) of theImmigration Act Regulations. The letter was not received by the Visa Officer concerned. [2] As a result, the final decision was made by the Visa Officer without knowledge of the request that positive discretion be exercised. It is agreed that, had knowledge existed, the Visa Officer owed a duty to enter into a s.11(3) inquiry. [3] On August 31, 2001, a letter was sent by counsel for the Applicant which stated as follows: "Further to our letter dated August 13, 2001, enclosed please find the updated application form for Ms. Feng Juan Ling and family". There is no doubt that the August 31st letter was received by the Visa Officer. [4] I find that, as a matter of due process, the Visa Officer owed a duty of fairness to the Applicant to inquire into the existence and contents of the letter of August 13, 2001, as it is apparent by the letter August 31, 2001, that Counsel for the Applicant was relying on the fact that the Visa Officer would consider the letter of August 13, 2001. The Visa Officer did not meet this duty of fairness. [5] As a result, in my opinion, the Visa Officer's decision was rendered in reviewable error. ORDER Accordingly, I set aside the Visa Officer's decision and refer this matter back to another visa officer for redetermination. The issue of costs is adjourned for argument to May 3, 2004 at 3:00 p.m. in Toronto, Ontario. "Douglas R. Campbell" J.F.C. FEDERAL COURT NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-5805-01 STYLE OF CAUSE: JUAN LING FENG Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: MARCH 25, 2004 REASONS FOR ORDER AND ORDER BY : CAMPBELL J. DATED: MARCH 29, 2004 APPEARANCES: Ms. Inna Kogan FOR THE APPLICANT Mr. Marcel Larouche FOR THE RESPONDENT SOLICITORS OF RECORD: Ms. Inna Kogan Barrister & Solicitor Toronto, Ontario FOR THE APPLICANT Morris Rosenberg Deputy Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT FEDERAL COURT TRIAL DIVISION Date: 20040329 Docket: IMM-5805-01 BETWEEN: JUAN LING FENG Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER
Source: decisions.fct-cf.gc.ca