Date: 20001214
Docket: IMM-4003-99
BETWEEN:
SHAH ZAINUL ABEDIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Shah Zainul Abedin, the applicant, is a 47 year old citizen of Pakistan who applied for permanent residence in Canada in the assisted relative category in the intended occupation of a Personnel and Recruitment Officer, National Occupational Classification ("NOC") 1223. Mr. Abedin later advised that he would also liked to be assessed in the occupation of a Specialist in Human Resources, NOC 1121.
[2] On June 8, 1999, Mr. Gregory Chubak, consul at the Canadian Consulate General in Hong Kong ("visa officer") refused Mr. Abedin's application for permanent residence.
[3] In this application for judicial review Mr. Abedin's seeks an order quashing the officer's decision.
FACTUAL BACKGROUND
[4] On June 3, 1999, Mr. Abedin was interviewed by the visa officer. The visa officer did not file an affidavit in this proceeding, but it appears that on the same day as the interview at an unspecified time the visa officer entered notes in the CAIPS (Computer Assisted Immigration Processing System) electronic file system.
[5] According to the refusal letter, Mr. Abedin obtained sufficient units to be issued a visa. However, the visa officer did not consider that the units of assessment which Mr. Abedin had been awarded were an accurate reflection of his ability to successfully establish in Canada. Therefore the visa officer exercised negative discretion pursuant to subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations").
[6] Subsection 11(3) of the Regulations provides:
| 11(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
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| 11(3) L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
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| [7] A senior immigration officer approved the reasons of Mr. Chubak so that in consequence Mr. Abedin's application was refused. |
| [8] While Mr. Abedin raised three issues on this application, in my view one issue is determinative. That is whether the visa officer breached the duty of fairness owed to Mr. Abedin by not advising Mr. Abedin of his concerns, thus failing to provide to Mr. Abedin an opportunity to respond to those concerns. |
| [9] The scope of the duty of fairness owed by a visa officer when exercising negative discretion under subsection 11(3) of the Regulations was recently considered by the Federal Court of Appeal in Sadeghi v. Canada (Minister of Citizenship and Immigration) (2000), 254 N.R. 337 (F.C.A.). There, at paragraphs 17 and 18, the Court held that: |
| 17 In order to ensure that visa officers base their opinion that there are good reasons for thinking that the points evaluation does not adequately reflect an applicant's chances of becoming successfully established in Canada, it is important that they raise their concerns with the individual in a way that enables her or him to respond, at least when they are of the kind on which the applicant may be able to shed some useful light. Accurate decision-making is particularly important when an adverse decision may deprive a person of her legal rights or, as here, a legitimate expectation of receiving a statutory benefit. |
| 18 The burden normally borne by visa applicants to put their "best foot forward" by placing before the visa officer all the information necessary to demonstrate that they satisfy the selection criteria reduces the obligation of visa officers to advise applicants, as a matter of procedural fairness, of whatever concerns they may have about the adequacy of the application. However, once an applicant has been awarded the units of assessment normally required for a visa by persons applying in the relevant category, it will often be unfair to expect the applicant to anticipate the grounds on which a visa officer may base a negative discretionary decision. |
| [10] In the present case, Mr. Abedin in an affidavit filed in this proceeding swore that: |
| 7. The interviewer seemed satisfied that the interview went well, and he so informed my wife and myself. Therefore, having been told at the interview that he was satisfied I was very shocked to receive the refusal letter, first informing me that I had received sufficient units of assessment to qualify for immigration, and then in the next paragraph informing me that he did not consider that I have the ability to successfully establish in Canada. |
| [11] As noted, no affidavit was sworn by the visa officer. |
| [12] It was submitted on the Minister's behalf that the visa officer clearly indicated in his CAIPS notes that the visa officer had advised Mr. Abedin that he had satisfied the selection criteria, but that the visa officer was going to recommend negative discretion and refuse the application. The Minister also submitted on the basis of the CAIPS notes, that the visa officer gave to Mr. Abedin an opportunity to adduce further rebuttal or additional information which Mr. Abedin did not do. The Minister urged that more weight be given to the CAIPS notes than to the affidavit of "a disappointed litigant". Mr. Abedin was not cross-examined on his affidavit. |
| [13] This submission raised squarely the issue of the use which may be made of the CAIPS notes when they are not supported by an affidavit of the visa officer with personal knowledge of the matters reflected in the notes. |
| [14] In Wang v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 165 (F.C.A.), the Federal Court of Appeal held that notes made by a visa officer during an interview were not acceptable as proof of the truth of their contents where no affidavit averring to the truth of their contents was filed. Applying Wang, in Qiu v. Canada (Minister of Citizenship and Immigration) (2000), 4 Imm. L.R. (3d) 247 (F.C.T.D.) Reed J. stated that "in the absence of an affidavit from the visa officer having personal knowledge of the events in question, the [CAIPS] notes are of dubious value as evidence of the facts recounted therein" and "[t]he respondent is not required to support her case with an affidavit, but the failure to do so will mean that the only sworn evidence before the Court as to what occurred at the interview will be that of the applicant". Reed J. also referred to the prior decision of this Court in Yan v. Canada (Minister of Citizenship and Immigration) (1999), 169 F.T.R. 139 (F.C.T.D.) where Cullen J. found in similar circumstances that an applicant's version of events must be presumed to be true where not contradicted by an affidavit sworn by the visa officer. |
| [15] Reed J. reached a similar result in Chou v. Canada (Minister of Citizenship and Immigration) (2000), 3 Imm. L.R. (3d) 212 (F.C.T.D.) Reed J.'s analysis has subsequently been followed in a number of cases including Liao v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 26 (F.C.T.D.) and Patel v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 776, IMM-1087-99 (June 2, 2000) (F.C.T.D.). Pelletier J. reached the same result in Tajgardoon v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1450, IMM-2063-99 (September 1, 2000) (F.C.T.D.). |
| [16] I find the principles set out in this jurisprudence persuasive and adopt them to conclude similarly that while the CAIPS notes are admissible as part of the record as being the reasons for the decision under review, the CAIPS notes do not prove the underlying facts which they record and on which they rely. For the CAIPS notes to have status as evidence of the truth of their contents, the maker must provide an affidavit swearing to the truth of what is recorded in the CAIPS notes. |
| [17] While the respondent argued that the CAIPS notes were admissible within the hearsay exception, and as business records under section 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5, I have not been persuaded that the notes satisfy the requirements of necessity and reliability under the principled approach to hearsay, nor that there is an evidentiary basis in the record before me to establish that the notes meet the requirements of admissibility for business records. |
| [18] In the present case I therefore conclude that in the absence of an affidavit from the visa officer there is no evidence to contradict Mr. Abedin's assertion that the visa officer informed Mr. Abedin that the interview went well so that Mr. Abedin was shocked to learn that the visa officer did not consider that he had the ability to successfully establish in Canada. |
| [19] The apparent basis of the visa officer's concerns about Mr. Abedin's ability to establish in Canada were stated in the visa officer's CAIPS notes as follows: |
| Noting that PI has worked for the government sector for his entire career, it was important that he display some motivation, initiative, and resourcefulness with respect to labour market entry in Canada. |
| PI was asked if he had any contingency plans should he not be able to secure a job as foreseen. Reply was that his brother would assist in finding him a job and that he would return to school to obtain training and knowledge of Canada's labour market circumstances. Given PI's age and lack of Canadian experience in a very specialized milieu/context, this is not a realistic strategy. |
| [20] Mr. Abedin swore that the issue of his contingency plans was raised at the outset of his interview when he was asked by the visa officer to take five minutes to write out what he would do in Canada if he did not obtain a job. Mr. Abedin stated that he responded to that question, and his written answer is found in the tribunal record. Mr. Abedin's answer there was "I will have to establish my own business. My brother is already there to help and guide me". |
| [21] The CAIPS notes do not record that the visa officer in any way considered the statement that Mr. Abedin was prepared to establish his own business. This was a factor relevant to consideration of Mr. Abedin's ability to establish which the visa officer may have been reminded of had he voiced his concerns about Mr. Abedin's ability to successfully establish himself in Canada to Mr. Abedin. |
| [22] In that circumstance, and in light of Mr. Abedin's evidence that he was given to understand that the interview went well, I find that the visa officer breached the duty of fairness owed to Mr. Abedin by failing to advise Mr. Abedin of his concerns. |
| [23] In the result, the decision of the visa officer made on June 8, 1999 is set aside and the matter is remitted for redetermination before a different visa officer. |
| [24] Counsel were during the oral hearing requested to provide written submissions dealing with both the use which might be made of CAIPS notes and the issue of certification of a question. As neither party proposed a question for certification, no question is certified. |