Date: 20000313
Docket: IMM-873-99
BETWEEN:
SHOU PING CHOU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is a judicial review of a decision by a visa officer refusing to issue the applicant a visa for admission to Canada as an entrepreneur immigrant.
[2] The first question to address is the nature of the evidence before me, particularly the status of the visa officer's CAIPs notes.
[3] The documentary record that was before the visa officer, including the business plan submitted in support of the applicant's application, is part of the record before me. The applicant swore an affidavit, on which she was not cross-examined, attesting to the questions and the answers given at the interview of her and her husband conducted by the visa officer. This is also part of the record before me.
[4] Also in the record are handwritten notes, presumably made by the visa officer at the time of the interview on January 28, 1999, and notes of the interview, which were subsequently entered by the visa officer into the computer, on February 8, 1999 (the CAIPs notes). The visa officer did not file an affidavit attesting to the truth of the statements made in either the handwritten notes or the CAIPs notes. The applicant has had no opportunity to cross-examine the author of the notes.
[5] There is no taped record or transcript of what was actually said at the interview. The question that arises, then, is what status do the CAIPs notes have as evidence of what took place at the interview, in the absence of an affidavit from the visa officer attesting to the truth of their content.
[6] This issue was recently raised in Hailing Qiu v. The Minister of Citizenship and Immigration (IMM-1022-99, January 28, 2000). In that case, counsel called my attention to a long line of jurisprudence that has held that the notes of a visa officer, in the absence of an affidavit from that officer attesting to the veracity of what is said therein, are not admissible as evidence.
[7] In Wang v. Minister of Employment and Immigration, [1991] 2 F.C. 165 (C.A.), a memorandum and handwritten notes prepared by a visa officer of the interview were struck from the record because there was no supporting affidavit attesting to their veracity. The Court of Appeal wrote at pages 170 - 171:
| ... The Respondent argues that, because of the inconvenience of arranging depositions by visa officers who, by definition, are outside Canada, the Court ought to accept their notes and memoranda as proof of the truth of their contents even though no affidavit averring to that truth is filed. In this, as in some of the other appeals dealt with serially, the visa officer concerned produced notes made during the interview and/or a memorandum made considerably later setting forth his recollection. ... |
| I see no justification for deviating from evidentiary norms in these circumstances. No legal basis for acceding to the Respondent"s argument has been demonstrated and, in my opinion, it is devoid of a practical basis. In the first place, unless the error said to vitiate the decision appears on the face of the record, the intended immigrant also, by definition, outside Canada must depose to his or her evidence and, unlike the visa officer, may not be conveniently located to do so. There is no justice in according one witness to the proceeding an opportunity to present evidence in a manner that precludes it being tested by cross-examination. In the second place, the suggestion of administrative inconvenience seems flimsily based. Given that visa officers normally inhabit premises in which may be found other functionaries before whom affidavits acceptable in Canadian courts may be sworn, there seems no practical reason why his or her version of the truth cannot, with equal convenience, be produced in affidavit as in memorandum form. Finally, should a disappointed applicant wish to inconvenience a visa officer by a cross-examination there is the sanction that the right will have to be exercised, at least initially, at some considerable expense to the applicant. |
[8] The CAIPs notes entered into the computer by a visa officer are not different in kind from the handwritten notes of a visa officer. The only difference is the method of recording; the one being typewritten, the other handwritten.
[9] There are many decisions that follow the Wang decision. These are listed in Yan v. Canada (Minister of Citizenship and Immigration), (IMM-2202-98 - June 3, 1999) (F.C.T.D.). See, Fung v. Canada (MEI) (1991), 121 N.R. 263 (F.C.A.); Gaffney v. Canada (MEI) (1991), 12 Imm.L.R. (2d) 185 (F.C.A.); Qiu v. Canada (MCI) (IMM-2715-96, May 16, 1997) (T.D.); Ayubi v. Canada (MCI) (1997), 38 Imm.L.R. (2d) 276 (T.D.); and Patel v. Canada (MCI) (IMM-829-98, October 5, 1998) (T.D.). In those decisions, the visa officer did not file an affidavit attesting to the veracity of the notes or the conduct of the interview. Also, the decision in Wang was recently cited with approval by the Federal Court of Appeal in Moldeveanu v. Canada (Minister of Citizenship and Immigration ) (1999), 1 Imm. L.R. (3d) 105 (F.C.A.).
[10] Counsel for the respondent argues that those decisions were rendered under the old Rules, and that it is now common practice for the Court to allow the respondent to rely on the CAIPs notes as evidence of what occurred at the interview, without an affidavit having been filed by the officer.
[11] I am reluctant to rely on decisions of my colleagues, which may have allowed reliance on the CAIPs notes even though no affidavit was filed by the visa officer, unless there is an indication that my colleagues had their attention drawn to the long line of jurisprudence set out above, to which I was referred in Hailing Qiu, supra.
[12] The jurisprudence referred to in the Hailing Qiu decision indicates that visa officer's notes are not admissible without an affidavit. Subsequent to that jurisprudence, the decision in Baker v. Canada (Minister of Citizenship and Immigration) (1999), 243 N.R. 22 (S.C.C.), has been rendered. In the Baker decision, notes, not unlike those in issue here, were characterized as the reasons for the decision that was under review.
[13] I accept, then, that the CAIPs notes should be admitted as part of the record, that is, as the reasons for the decision under review. However, the underlying facts on which they rely must be independently proven. In the absence of a visa officer"s affidavit attesting to the truth of what he or she recorded as having been said at the interview, the notes have no status as evidence of such.
[14] Counsel argues that I should accept the truth of the facts stated in the notes, unless they are contradicted in the applicant"s affidavit. I do not accept that position. As noted above, to give the contents of the notes that status would be to treat them as evidence, when they cannot be so treated. In addition, in this case the applicant's affidavit was filed before she could know what was in the CAIPs notes. She cannot be expected to refute statements of which she was not aware.
[15] In the present case, the visa officer's CAIPs notes were entered after a letter from counsel was faxed to him on January 29, 1999, indicating that his clients thought the interview had gone very well and asking whether there was any additional documentation that should be provided. The CAIPs notes repeat the visa officer's conclusion that the applicant had done no research into the type of business she planned to purchase. They state: "she explained that she had done no research whatsoever into settlement or business start-up"; "she had done no research at all into feasibility of this or any alternate intended business"; "no concrete research"; "PI has done little or no research or feasibility studies".
[16] As noted, there is no affidavit from the visa officer attesting to the truth of his observations. Furthermore, those observations are contradicted by the documentary evidence on the file in which the applicant presents a business plan stating an intention to open a store of a specific size, to be located in one of the areas of Toronto in which there is a significant Chinese population (the Broadview/Gerard area in eastern Toronto, or Midland Avenue in Scarborough, or North of Sheppard). The plan identifies the number of employees expected to be hired, the amount of money she expects to invest, the names and addresses of suppliers and the products they could be expected to supply, and the hours of operation of the store. The business plan is accompanied by real estate advertisements for the sale of business premises in Toronto, of the type the applicant says she is interested in purchasing.
[17] The applicant's affidavit records that she was asked at the interview about the business she intended to purchase and that she explained that there were "several places which are suitable for us and there are shops for sale there such as Toronto East, North of Sheppard. There are many Chinese people living there". She states that she answered the visa officer's question as to how she hoped to make the business profitable, saying that "I will try to expand the product range to include Chinese BBQ food. I will source special Chinese food which is not being sold now." She states that the visa officer asked "You have prepared your business plan and you should be clear about it. Please name some suppliers' names?" She records some of the suppliers' names that she gave in response.
[18] A significant factor in the visa officer's decision, as recorded in his reasons, is a finding for which there is no evidentiary basis. Thus, the decision under review must be set aside.
[19] Counsel for the respondent asked that if the decision was not in the respondent's favour, that I allow the respondent an opportunity to consider whether he wished to propose a question for certification before an order is issued.
[20] The respondent shall have ten days from the date of the issue of these reasons to make such representations, having first served them on counsel for the applicant. Counsel for the applicant shall have ten days thereafter within which to serve and file her responding representations. The respondent may within three working days of the service on him of the applicant's response file any reply.
Judge
OTTAWA, ONTARIO
March 13, 2000