Date: 20030226
Docket: IMM-5488-01
Neutral citation: 2003 FCT 248
Toronto, Ontario, Wednesday, the 26th day of February, 2003
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
SEYED MOHAMMAD ALI AYATOLLAHI
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of visa officer Timothy Bowman (the "visa officer"), dated October 31, 2001, of the Canadian Embassy in Tehran, Iran, wherein the visa officer refused the Applicant's application for a student authorization.
[2] The Applicant is a twenty-five year old male citizen of Iran. On September 30, 2001, he applied for a visitor's visa and student authorization for two years to pursue a Law Clerk diploma program at Seneca College in Toronto. He stated that, upon completion of his program of study, he intended to return to Iran to help his father who is a civil engineer and co-owner of a construction company.
[3] The Applicant attended an interview on October 31, 2001. The interview was conducted by Niloufar Taheri, an Immigration Program Officer (the "IPO") in Tehran. According to his affidavit, the visa officer reviewed the information collected by the IPO during the interview. That same day, the Applicant was informed that the visa officer had refused his application.
[4] According to his affidavit and entries in the Computer Assisted Immigration Processing System ("CAIPS") notes, the visa officer refused the Applicant's application because he was not satisfied that the Applicant would be entering Canada solely as a student for a temporary purpose. According to his affidavit, he based this decision in part on his judgment that the Applicant's study plans were not reasonable.
Issues raised by the Applicant
[5] In his application for judicial review, the Applicant raised three issues:
1. Should paragraphs 10 through 14 of the visa officer's affidavit be struck as they contain evidence outside the personal knowledge of the deponent?
2. Did the visa officer's decision violate the principle that "he who hears must decide"?
3. Was there a breach of procedural fairness because the decision maker did not apprise the Applicant of his concerns?
[6] For the reasons that follow, I am of the view that:
1. a portion of the visa officer's affidavit should be struck; and
2. this application should fail.
Analysis
Issue #1: Should paragraphs 10 through 14 of the visa officer's affidavit be stricken as they contain evidence outside the personal knowledge of the deponent?
[7] The Applicant submitted that paragraphs 10 through 14 of the visa officer's affidavit should be struck because they contain evidence outside the personal knowledge of the deponent in violation of rule 81 of the Federal Court Rules, 1998 (Patel v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1423 (T.D.) (QL)).
[8] Rule 81(1) of the Federal Court Rules, 1998 sets out the content of affidavits:
81. (1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefor, may be included.
81. (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s'ils sont présentés à l'appui d'une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l'appui.
[9] In my view, only the first sentence of paragraph 14 of the visa officer's affidavit should be struck. In this sentence, the visa officer states that the Applicant would not have been advised that the local officer would make a decision. The visa officer was not present at that interview; as a result, anything that transpired during that interview is outside of his personal knowledge and any statements to that effect should be struck (Federal Court Rules, 1998, rule 81(1); Patel, supra).
[10] The balance of the impugned paragraphs are in relation to standard practices at the Canadian Embassy (balance of paragraph 14, paragraph 10) or are within the visa officer's personal knowledge (paragraphs 11, 12, 13).
Issue #2: Did the visa officer's decision violate the principle that "he who hears must decide"?
[11] The Applicant also submitted that the fact that the visa officer, and not the IPO, made the decision to refuse his application for student authorization violates the principle that "he who hears must decide." This violation resulted in a breach of procedural fairness because the visa officer's specific concerns about the Applicant's credibility were not brought to the attention of the Applicant. As a result, the Applicant did not have an opportunity to disabuse the visa officer of those concerns. Therefore, the failure of the person who heard the case to decide the case resulted in a breach of procedural fairness requiring this application for judicial review to be allowed (Patel, supra; Hussain v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1570 (T.D.) (QL); Fong v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.); Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (T.D.)).
[12] An application to be admitted to Canada as a visitor involves a discretionary decision on the part of the visa officer (Immigration Act, R.S.C. 1985, c. I-2 s. 9(4)). This decision is based on an assessment of the visa application (Immigration Act, s. 9(2.1)); there is no statutory requirement for an oral hearing. In the case of an application for student authorization, the applicant must include certain documents with his or her visa application (Immigration Regulations, s. 15(1)). The only party to this application is the visa applicant (and any accompanying dependents); submissions are not made by parties opposite in interest to the applicant. The burden is on the visa applicant to satisfy the visa officer that he or she is not an immigrant (Immigration Act, s. 9(1.2)). In my view, these provisions of the Immigration Act and Immigration Regulations, 1978, SOR/78-172 indicate that the decision on an application for a temporary student authorization is not judicial or quasi-judicial in nature.
[13] An analogy can be made to the decision on an application for temporary employment authorization, which is governed by the same sections of the Immigration Act outlined above. In Silion v. Canada (Minister of Citizenship and Immigration),[1999] F.C.J. No. 1390 (T.D.) (QL), MacKay J. held that the decision of a visa officer refusing an applicant's application for a temporary employment authorization was administrative in nature and did not attract the principle that he who hears must decide. At paragraph 11, MacKay J. stated that:
[t]he decision is essentially an administrative one, made in the exercise of discretion by the visa officer. There is no requirement in the circumstances of this or any other case that he personally interview a visa applicant. There may be circumstances where failure to do so could constitute unfairness, but I am not persuaded that is the case here. Here the IPO did interview the applicant and reported on the results of that interview. That report was considered by the visa officer who made the decision. Staff processing and reporting on applications is a normal part of many administrative processes and it is not surprising it was here... followed. This is not a circumstance of a judicial or quasi-judicial decision by the visa officer which would attract the principle that he who hears must decide, or the reverse that he who decides must hear the applicant.
[14] The facts of this Applicant's case can be distinguished from Patel, supra, where Tremblay-Lamer J. found that the principle that "he who hears must decide" was violated when a visa officer based his decision on the notes of an interview of the applicant by another visa officer. Unlike in Patel, supra, the IPO had no authority under the Immigration Act to make the ultimate decision; rather, that authority rested with the visa officer pursuant to subsection 9(2.1) of the Immigration Act. The IPO's role was to investigate the application and gather evidence to be used by the visa officer. The fact that this evidence was gathered in an oral interview did not require that the visa officer be a party to that interview (see e.g. Trans Mountain Pipe Line Co. v. Canada (National Energy Board), [1979] 2 F.C. 188 (C.A.); Armstrong v. Canada (Commissioner of the Royal Canadian Mounted Police), [1994] 2 F.C. 356 (T.D.).
[15] The decision of the visa officer in this case was not judicial or quasi-judicial in nature. As a result, the principle that "he who hears must decide" is not applicable to the visa officer's decision.
Issue #3: Was there a breach of procedural fairness because the decision maker did not apprise the Applicant of his concerns?
[16] The Applicant alleged that he was given no opportunity to disabuse the visa officer of his concerns about the Applicant's credibility.
[17] At paragraph 8 of his affidavit, the visa officer refers to the study plans as "less than fully credible." However, when that sentence is read in the context of the entire paragraph, it is apparent that the visa officer did not have concerns about the Applicant's credibility. Rather, the visa officer's concerns related to the relevance of the Applicant's proposed studies in a law clerk program in Canada to his father's construction business in Iran.
[18] Subsection 9(1.2) of the Immigration Act places the burden on the Applicant. The Applicant's affidavit and the CAIPS notes indicate that the IPO questioned the Applicant about his study plans and the relevance of that plan to his father's business. If the Applicant provided weak evidence to support his position that he had sufficient ties to his home country to ensure his return, the visa officer did not have to apprise the Applicant of this concern because this concern arises directly from the requirements set out in the Immigration Act (Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 468 at paragraph 19 (T.D.) (QL); see also Covrig v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1413 at paragraph 21 (T.D.) (QL).
[19] The Applicant referred to the cases of Mirzaii v. Canada (Minister of Citizenship and Immigration), 2003 FCT 164, [2003] F.C.J. No. 213 (QL) and Yue v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1004, [2002] F.C.J. No. 1299 (QL) in support of his submissions that he was denied procedural fairness by not being given an opportunity to address the visa officer's concerns. Although the Applicant acknowledged that not every concern would give rise to a duty to give the Applicant a chance to disabuse the officer of the concern, he argued that such an obligation would arise where the concern is the main reason for the negative decision.
[20] In this case, the visa officer stated his reasons as follows:
I based my decision in part on my judgement that his study plans are not reasonable, in that he proposed to study a law clerk program with the stated purpose of applying his studies in his father's construction business in Iran. He provided no explanation of how the proposed studies in Canada were indeed relevant to his future plans in Iran. The legal and business systems in Iran are considerably different from those in Canada and such studies would be of limited specific utility, in my judgement, to an Iranian construction business. Accordingly, I also found his study plans less than fully credible and refused the application.
[21] There was not, in my view, a breach of procedural fairness as a result of the visa officer's failure to put his concerns to the Applicant. Most importantly, the burden was on the Applicant to come forward with his best case. He did not do this; specifically, he failed to give any rationale for his proposed course of studies, other than to assist his father upon his return. Given the onus on the Applicant, I believe that it would have been reasonably open to the officer to refuse the application on that basis alone.
[22] However, in the absence of evidence linking his studies to his future in Iran, the visa officer went further and relied on his own expertise to attempt to establish a link. He found none. He did not, as was the case in Yue, supra, stereotype the Applicant. Nor did he bring in an extraneous element into his decision making as was the case in Mirzaii, supra, where the visa officer considered the "tendency of young persons" wishing to leave Iran permanently to enrol in "lower" educational programs.
[23] The fact that the legal regimes in Canada and Iran are different is certainly something that would be generally known and in the knowledge of anyone reasonably familiar with the two countries. Indeed, it is the job of the visa officer to have knowledge of matters such as this and to bring that knowledge to his position. This "evidence" does not go beyond a general understanding of country conditions. Accordingly, the visa officer was entitled to rely on this information without being required to offer the Applicant an opportunity to respond.
[24] Quite simply, the Applicant failed to meet the burden upon him and, in this case, the visa officer was entitled to rely on his knowledge of general country conditions to inform his decision. There was no breach of procedural fairness.
[25] No question was proposed for certification.
ORDER
IT IS HEREBY ORDERED THAT:
1. the first sentence of paragraph 14 of the visa officer's affidavit is struck for containing facts not within the deponent's personal knowledge;
2. this application for judicial review be dismissed;
3. there is no question for certification.
"Judith A. Snider"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5488-01
STYLE OF CAUSE: SEYED MOHAMMAD ALI AYATOLLAHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, FEBRUARY 25, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: WEDNESDAY, FEBRUARY 26, 2003
APPEARANCES BY: Ms. Wennie Lee
For the Applicant
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Wennie Lee
Barrister and Solicitor
255 Duncan Mill Road
Suite 610
Toronto, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030226
Docket: IMM-5488-01
BETWEEN:
SEYED MOHAMMAD ALI AYATOLLAHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER