Date: 20030206
Docket: IMM-1861-01
Neutral citation: 2003 FCT 131
Toronto, Ontario, Thursday, the 6th day of February, 2003
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
MOHAMMAD YAQUB
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant seeks judicial review of a visa officer's decision dated March 1, 2001, denying his application for permanent residence as an independent applicant in the occupation of Civil Engineering Technician (NOC 2231.2).
[2] The only issue to be determined is whether the visa officer's decision to award the applicant 03 units of assessment for the personal suitability factor was patently unreasonable.
[3] The applicant submits three allegations of error:
1.) The visa officer breached the principles of fairness by obtaining and relying on
extrinsic evidence without informing the applicant and without giving him an opportunity to respond;
2.) The visa officer breached the principles of fairness by failing to advise the
applicant of any concerns the officer may have had regarding the applicant's suitability without giving the applicant any opportunity to respond and to disabuse
him of concerns;
3.) The visa officer erred in law by drawing negative inferences that were patently
unreasonable.
[4] The first allegation of error relates to a telephone call made by an employee of the Canadian High Commission to verify a letter of reference that the applicant had submitted. The employee, upon contacting the company in question was informed that the applicant had never worked there. The visa officer deposes that the verification was for the purposes of assessing the applicant's experience and was not relied upon for purposes of the personal suitability factor. The applicant was awarded full units of assessment for experience on the strength of other employment. There is no mention of this evidence in either the visa officer's affidavit or CAIPS in relation to the personal suitability factor. The officer's statements were not impeached in any way on cross examination. A breach of procedural fairness has not been demonstrated.
[5] Regarding the second allegation of error, the law in this respect was recently reviewed and summarized by Gibson J. in Javed v. Canada (Minister of Citizenship and Immigration) 2003 FCT 96, [2003] F.C.J. No. 95. I adopt the reasoning of my colleague regarding the duty of fairness owed by a visa officer. Having done so, it follows that the applicant fails on this ground.
[6] The third allegation is that the visa officer erred by drawing negative inferences that were patently unreasonable. The visa officer deposes that he relied on three factors to arrive at his assessment of personal suitability. He states :
Following the interview, I carried out a final review of his application. I was left with the fact that he did not appear to have made an effort to learn about Canada, his job search was hurried at the last minute, and he appeared to be leaving a lot up to his cousin who resided in Canada, rather than showing initiative, motivation, resourcefulness or adaptability himself, in preparing for a new life in Canada. Mr. Yaqub was given a personal suitability score of three points.
[7] The applicant takes issue with the visa officer's reliance on the applicant's delay in searching for a job as a negative factor in the personal suitability assessment. In my view, it was not unreasonable for the visa officer to consider this factor as relevant to the applicant's motivation and initiative.
[8] It is settled law that the assessment of personal suitability is a matter within the discretion of the visa officer and will not be subject to judicial intervention if it is reasonable and neither arbitrary nor capricious. Here the visa officer concluded that the applicant was "leaving a lot up to his cousin". This conclusion is not supported by the evidence. The only statement the applicant made regarding his cousin was in response to the officer's question asking why the applicant wanted to live in Toronto. The applicant answered that his cousin is there, will help him, is a Canadian citizen and knows about Canada. That is the only reference in the record regarding the applicant's cousin. Insofar as the officer's finding that the applicant did not appear to have made an effort to learn about Canada, I am unable to find anything in record to support this conclusion. Neither the CAIPS nor the visa officer's affidavit indicates that the applicant's knowledge of Canada, or lack thereof, was discussed at all. The visa officer's responses to questions on cross examination do not shed any light on this issue. In short, there is no evidence to support a conclusion that the applicant had not learned about Canada.
[9] The onus lies on the applicant to satisfy the visa officer that he is entitled to a visa. The visa officer does not breach the duty of fairness by failing to advise an applicant regarding all of the concerns that the officer may have. That, however, should not be taken to mean that the visa officer is a passive observer. The interview process, of necessity, requires some communication.
[10] It is incumbent upon the visa officer to actively interview an applicant, seeking the information required by the officer in order to come to a fair and balanced conclusion... The procedure calls for an interview not an inquisition: Bhatia v. Canada (Minister of Citizenship and Immigration) (2000), 181 F.T.R. 119.
[11] It is not open to a visa officer to fail to ask questions of a general nature, arrive at a conclusion in the absence of evidence to support it, or arrive at a conclusion based on unrelated evidence, and then say that the fault lies with the applicant because the onus lies there.
[12] Here, the visa officer arrived at a conclusion in the absence of evidence to support it. The conclusion is therefore patently unreasonable. Since the reasons provided in the affidavit were sparse regarding the personal suitability factor, it would be speculative of me to attempt to determine the impact of the error.
[13] The application for judicial review is allowed. The decision of the visa officer is quashed and the applicant's application for permanent residence is referred back for reconsideration by a different visa officer. Counsel did not suggest a question for certification. This matter raises no serious question of general importance.
ORDER
The application for judicial review is allowed.
No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1861-01
STYLE OF CAUSE: MOHAMMAD YAQUB
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, FEBRUARY 5, 2003
REASONS FOR ORDER
AND ORDER: LAYDEN-STEVENSON, J.
DATED: THURSDAY, FEBRUARY 6, 2003
APPEARANCES: Mr. Paul Vandervennen
For Applicant
Ms. Mary Matthews
For Respondent
SOLICITORS OF RECORD: Mr. Paul VanderVennen
Vandervennen Lehrer
Barristers & Solicitors
45 St. Nicholas Street
Toronto, Ontario M4Y 1W6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030206
Docket: IMM-1861-01
BETWEEN:
MOHAMMAD YAQUB
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER