Date: 19991223
Docket: IMM-22-99
BETWEEN:
KHONDAKER REZAUL ISLAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
INTRODUCTION
[1]Khondaker Rezaul Islam a citizen of Bangladesh living in the United States for the past several years, (the "applicant") in this judicial review application applied, on September 17, 1997, for permanent residency status in Canada in the independent category with an intended occupation as a chemist. His application was turned down by letter dated December 2, 1998 from Sara Wiebe (the "visa officer") the day he was interviewed by her at the Canadian Consulate in New York City. He was assessed 0 units for experience and 2 units for personal suitability and a total of 63 units.[2]In his permanent residence application, the applicant said he had worked as a chemist with Antorik International Corporation ("Antorik") in Bangladesh from November 1988 to January 1991, was a teaching assistant at Howard University from January 1994 to December 1996 where he earned his Master's degree in chemistry, worked as a chemist for W.R. Grace and Co. ("Grace") from March 1997 to November 11, 1997, being placed there by Lab Support, a placement agency. At his interview on December 2, 1998, the applicant identified to the visa officer that, through Lab Support, he had worked as a chemist with Kirkegaard and Perry Laboratory from November 26, 1997 to April 3, 1998 and he also brought a letter of reference from Pharmacopeia dated November 24, 1998 which indicated he worked there as a chemist since May 1998.[3]The Tribunal record indicates the applicant had filed two letters of reference with his application. The first letter is from Antorik and is dated January 30, 1991 stating the applicant had served "as a Quality Control Officer". The second letter of reference is from Dr. John S. Hallock on Grace letterhead identifying him as a Staff Scientist in Packaging Research. Dr. Hallock in that letter of July 22, 1997 stated the applicant had worked at the Grace Washington Research Center in Columbia, Maryland where he "has made important contributions to two different projects in the field of photoimageable coatings for the printed circuit board industry" and "the focus of the projects at the Research Center is on developing new, proprietary technologies for next generation product development, and both of the projects he has worked on have involved considerable technical challenges and innovations on the path to demonstrating feasibility".
THE ISSUE AND DISCUSSION
[4]This judicial review proceeding turns on the question of procedural fairness: was the applicant given a meaningful opportunity in the particular circumstances of this case to deal with the concern which the visa officer expressed to him at the December 2, 1998 interview concerning the circumstances surrounding the Grace letter of recommendation
[5]Counsel for the applicant and counsel for the respondent do not dispute that fairness required in this case the identification of that concern and a meaningful opportunity to meet it. Counsel for the applicant says no such opportunity was meaningfully accorded; counsel for the respondent argues the opportunity was provided for at the interview and the applicant did not dispel the visa officer's concern.
[6]The legal principles applicable to this case are clear; the content of procedural fairness is flexible and variable depending upon factors such as the legislative context, the nature and importance of the decision and the rights of affected as applied to the particular circumstances at hand. These principles were recently reiterated by the Supreme Court of Canada in Baker v. M.C.I., [1999] S.C.J. No. 39.
[7]In my view, this judicial review application is to be resolved against the legislative context and the particular circumstances surrounding the processing of the applicant's application for permanent residence.
[8]There is no question the onus is on the applicant to satisfy the visa officer the application meets the requirements of the Immigration Act and the Immigration Regulations. An application for permanent residence must be complete; an applicant must put his application and supporting documents on the best footing possible. It cannot be ambiguous or vague.
| [9]How the applicant's permanent residence application was handled was as follows: (a) As noted, his application was filed on September 17, 1997; it was received by Citizenship and Immigration Canada in Buffalo, ("CIC"), New York, on September 19, 1997; |
| (b) He was paper screened, without interview, and assessed 65 units (70 is required); paper screening does not involve an assessment of personal suitability which takes place at an interview with a maximum number of points for this item being 10. |
| (c) A recommendation at CIC was made on December 24, 1997 to waive the interview. On January 5, 1998, the CAIPS notes on the applicant's application records this: |
| Made a routine telephone call to subj's ER (24 Dec97) but no one was available. Human Resources returned my call this date [Jan. 5, 1998]. Confirmed that subj is not employed with WR Grace and Company but was employed at one time as a contract EE working in the capacity of laboratory support for a short period of time. HR director stated she was in contact with Dr. Hallock who confirmed that he wrote a personal ltr of ref but not on ltrhd. It should be noted that ltf of ref was, in fact, submitted on ltrhd and reads as if subj is an employee with WR Grace. Given the A/M circumstances feel it prudent to convoke subj for intvw to address these concerns. |
| To PF to withdraw case and reopen to send to NY for intvw. |
| (d) He was interviewed eleven months later on December 2, 1998, by the visa officer but was not advised prior to that time of the nature of CIC's concerns, i.e. that the Grace letter which the applicant had submitted with his permanent residency application may have been fraudulent. |
| (e) At the interview, the applicant was confronted for the first time by the visa officer on this issue, namely that the letter of reference provided by the applicant was on Grace letterhead yet Dr. Hallock had indicated to CIC in a phone call initiated by CIC that his letter of reference was not on letterhead. |
| (f) The visa officer's CAIPS notes indicate "he was unable to explain the anomaly regarding the letter of reference from Grace". The visa officer was cross-examined on her affidavit where she had said the following at paragraphs 10, 15 and 16 of her affidavit: |
| 10. When questioned about this at his interview, the Applicant was unable to explain why the employer would advise that his employment letter had not been issued on a letterhead, when the letter which he was presenting, was in fact, appearing on a letterhead. Furthermore, given the job description provided by his employer, this employment did not allow for the Applicant to be assessed as a Chemist. |
| 15. At the end of the interview, I informed the Applicant that I was not satisfied that he had met the requirements of the Act and Regulations. In particular, I told him that he had not demonstrated a minimum of twelve months' experience as a chemist. |
| 16. I gave the Applicant an opportunity to address my concern about his experience. He maintained that he had worked for W.R. Grace for a period of nine months, however, as stated above, I was not satisfied that the letter signed by Dr. Hallock was legitimate. The Applicant did not bring any other work experience to my attention which would have demonstrated that he had over twelve months' experience as a chemist. |
| (g) On her cross-examination, the visa officer admitted she did not provide the applicant with an opportunity to contact Grace or Dr. Hallock to clear up concerns "because I felt that his explanation of the interview did not give me a feeling that there would be value added in giving him extra time to provide more documentation to the file". She added this answer to a subsequent question: |
| A. In the context of interviewing people often you can tell from their immediate reaction to the question, from the way that they phrase their responses. If they are unable to inspire confidence, then often I will continue the file. |
| However, Mr. Islam did not inspire in me the feeling that it was warranted to keep the file open further. |
| She was asked why not. She answered "because I felt that given his answer and given his reaction that in fact the letter was fraudulent". |
| (h) In terms of personal suitability, it is clear from her cross-examination that she gave the applicant only two points because she believed he had provided a false document for his assessment. |
[10]The interview was conducted in the morning. The visa officer drafted her December 2, 1998 refusal letter over the lunch time that day.
[11]She had, at the close of the interview, advised him she was not satisfied he had met the requirements of the Act and Regulations and, in particular, she told the applicant he had not demonstrated a minimum of twelve months' experience as a chemist.
[12]The Tribunal record indicates after the interview the applicant immediately contacted the placement agency Lab Support, Dr. Hallock and legal counsel. On December 3, 1998, Lab Support provided a letter "to whom it may concern" confirming the applicant had worked on assignment as an analytical chemist for Lab Support working for W.R. Grace and Kirkegaard and Perry Laboratory. Dr. Hallock wrote a letter dated December 14, 1998 in which he confirmed the applicant worked as a chemist, explained that he had been mistaken in telling Human Resources at Grace that his letter of reference in respect of the applicant was not on W.R. Grace letterhead.
[13]The Lab Support letter and the letter from Dr. Hallock were provided to CIC in New York by way of enclosures from the applicant's Canadian legal counsel who, on December 17, 1998, asked that the matter be reopened. On December 22, 1998, the Vice-consul at the Canadian Consulate General in New York said this:
| An assessment of this application was made on its merits. A written decision was provided containing the reasons for refusing the application for permanent residence, thereby concluding this application. |
| This decision is final and there are no provisions for appeal to this office. |
CONCLUSION
[14]In my view, this judicial review application must be allowed. The visa officer's refusal was rooted on her view that the Grace letter was fraudulent. Such a view not only materially affected the applicant's application for permanent residence but, in addition, fundamentally impacted upon his reputation. In the circumstances, there were two breaches of the principles of procedural fairness. First, the applicant should have been given specific notice of the issue prior to the interview. It was not appropriate, in my view, for the visa officer to spring this concern on the applicant at the interview itself without prior notice. He was unaware of CIC's December 24, 1997 telephone call to Grace and Dr. Hallock's response, mistakenly as it turned out, that he had not provided his letter of reference on Grace letterhead. All the applicant knew was that Dr. Hallock had provided his letter of reference on Grace letterhead. When confronted with the issue, all he could say was he had no explanation about the discrepancy. What else could he say! Second, he should have, in the circumstances, been given an opportunity to clarify the issue. He was not given that opportunity; his application was immediately rejected on the spot, i.e. at the conclusion of the interview. After the interview, the applicant acted quickly; he obtained clarifications which were not considered by CIC in New York. I should mention here the visa officer herself was not asked to reconsider the matter. The decision not to reconsider was a decision made by the Vice-consul.
[15]Although the Vice-consul's decision of December 22, 1998 that there was no jurisdiction to reconsider the decision on account of new evidence is not under review, I add he was clearly wrong on this point. This issue was recently considered by my colleague Reed J. in Nouranidoust v. Canada (M.C.I.), IMM-3873-98, June 30, 1999. She held that immigration officers had the power to reopen a file when it was in the interest of justice to do so. That principle should have been applied here.
[16]The applicant's counsel asked for solicitor-client costs. I am not satisfied, in the circumstances, that solicitor-client costs are appropriate. I follow the case of Ayala-Barriere v. Canada (M.C.I.), 31 Imm.L.R. (2d) 99 where Wetston J. awarded party-party costs in a similar situation.
DISPOSITION
[17]For all of these reasons, this judicial review application is allowed with costs on a party-party basis; the matter is remitted for reconsideration by a different visa officer.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
DECEMBER 23, 1999