Digests

Fernando v. Canada (Minister of Citizenship and Immigration)

IMM-5899-99

2001 FCT 205, Dawson J.

20/3/01

14 pp.

Judicial review of visa officer's refusal of application for permanent resident status--Applicant applied under assisted relative category, indicating intended occupation "Caterer: self-employed"--Canadian High Commission in Sri Lanka Policy explaining Sri Lankan educational system stating secondary education requiring student to write two public examinations: General Certificate of Education (Ordinary Level) and General Certificate of reduction (Advanced Level)--No certificate obtained upon successful completion of O Level examinations, but to proceed to A Level, must obtain six ordinary passes (achieving 35 to 50%) including three credits (between 50 and 75%) in not more than two sittings--Must obtain ordinary passes in first language, mathematics--Because government not setting standards for successful completion of O Level examinations, Commission adopted entry requirements for A Level as mark for successful completion of O Level studies--Applicant saying passed five subjects in one sitting in 1971, including first language, math; passed sixth subject in 1974--Visa officer saying applicant passed four subjects in 1971, another four subjects in 1972, and received a single credit in 1974--Visa officer awarding no points under education factor--Applicant only assessed under occupation "caterer", not as "self-employed person"--Awarded 68 units, two short of number required to obtain immigrant visa--Application allowed--(1) Applicant not paying fees required in order for application to be processed in self-employed category--Perfection of application requiring necessary fees be paid--Thus no duty at law to assess applicant as self-employed person absent payment of requisite fees at time application for landing made--Obligation to advise of deficiency only arising if recognition of any expectation applicant would be assessed as self-employed person--Application submitted by experienced counsel under cover of letter referring to "independent immigrant" category--Overseas Processing Manual distinguishing between "independent immigrants", "entrepreneurs and self-employed immigrants"--Reference to "independent immigrant" category not alerting Commission to any expectation applicant applying as self-employed person--Further, applicant in self-employed category subject to definition of self-employed persons requiring applicant to establish intention, ability to establish, purchase business in Canada that will create employment opportunity for immigrant and make significant contribution to Canadian economy or cultural or artistic life--Nothing indicating how applicant would qualify as self-employed person as defined--Neither breach of duty of fairness, nor reviewable error in failing to have applicant assessed in self-employed category--(2) Requiring applicant to obtain results allowing applicant to obtain admission to A Level studies not sufficiently unreasonable as to warrant judicial interference--But because visa officer operating under erroneous belief at time of interview that student required to obtain six passes with four credits at one sitting, as opposed to six passes with three credits at up to two sittings, assessment sufficiently flawed that visa officer's decision should be set aside.