Mozumder v. Canada ( Minister of Citizenship and Immigration )
IMM-2766-95
Denault J.
21/3/97
4 pp.
Application for judicial review of visa officer's decision-Applicant, spouse applying for permanent resident status in Canada-Applicant awarded total of 68 points, failing to meet requirements for immigration to Canada-Duly completed and signed September 5, 1994 applications of applicant, spouse documentary evidence of intention that, as between spouses, Mrs. Mozumder ought to be regarded as principal applicant-Decision in Nanji v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 60 (F.C.T.D.) standing for proposition visa officer under no statutory, common law duty to advise applicant spouse could be assessed for landing-Applicant's responsibility to designate who will be assessed-As between immigrant and spouse, Immigration Regulations, s. 8(1) makes it mandatory for visa officer to assess only one or other-"Option" contemplated by s. 8(1) must be exercised by immigrant who is principal applicant prior to visa officer undertaking assessment rather than after assessment-Option must be exercised in timely manner so as not to depend on result of assessment of principal applicant-Not appropriate case for certified question as proposed by counsel for applicant-Visa officer duty bound to inform applicant of negative assessment and to provide her with opportunity to contradict or correct assessment prior to making decision mandated by Immigration Act-Visa officer breaching duty of fairness owed to applicant by depriving her of opportunity to respond to allegations contained therein, contrary to audi alteram partem rule-Documentary evidence failing to support finding of bad faith on part of visa officer-Decision set aside-Immigration Regulations, 1978, SOR/78-172, art. 8(1)-Immigration Act, R.S.C., 1985, c. I-2.