Date: 20001024
Docket: IMM-2944-99
BETWEEN:
ROWENA M. MINA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Rowena M. Mina, the applicant, applied for an employment authorization under the Live-In Caregiver Programme. She brings this application for judicial review of the decision of Athena Chan, a visa officer at the Canadian Consulate General in Hong Kong, dated May 31, 1999, refusing Ms. Mina's application.
FACTS
[2] Ms. Mina is a 33 year old citizen of the Philippines who in April of 1999 received an offer of employment as a live-in caregiver from an employer in Toronto, Canada. Ms. Mina, on May 20, 1999, then made formal application for an employment authorization. With her application, Ms. Mina included a copy of her Bachelor of Elementary Education degree from Arellano University in the Philippines, and a copy of her university transcripts. Ms. Mina advised that she graduated from university in May of 1991. The transcripts enclosed with her application were issued on June 17, 1995.
[3] Ms. Mina attended an interview with the visa officer on May 25, 1999. At the interview the visa officer informed Ms. Mina that the visa officer doubted the authencity of Ms. Mina's degree and transcripts. Ms. Mina had brought to the interview a certified copy of her university diploma and transcript. Ms. Mina apparently explained to the visa officer that the documents submitted with her application were not original, and were dated after her graduation, because the documents were a second set ordered in 1994 when she required them for employment purposes. The documents were issued in 1995.
[4] The visa officer then questioned Ms. Mina about her undergraduate courses and found Ms. Mina's answers to be unsatisfactory.
[5] After the interview concluded, the visa officer determined that given the unreliability of the documentation and Ms. Mina's inability to show reliable proof of her education, a refusal letter should issue.
[6] A refusal letter issued on May 31, 1999.
[7] In material part, the visa officer's letter stated as follows:
| At your interview on May 25, it was clearly established that you have not completed a course of study equivalent to Canadian secondary education, i.e. Grade 12. You are therefore unable to meet one of the three basic criteria of the Live-in Caregiver Program as set out in the Regulations. Given the high level of fraudulent documentation submitted in support of applications of this type, the officer must rely on your answers at the interview to determine if the education requirements are met. |
ISSUES
[8] In the memorandum of fact and law submitted with the application record three issues were raised on Ms. Mina's behalf. They were:
| i. Did the visa officer err in ignoring relevant evidence and in improperly relying on extrinsic evidence?; |
| ii. Did the visa officer fail in her duty to give Ms. Mina a full and fair assessment of her application?; and |
| iii. Did the visa officer apply a higher standard of proof to Ms. Mina because she studied in the Philippines? |
[9] Before me in oral argument, Ms. Mina's counsel stated that these issues essentially were three ways of looking at the same issue which counsel characterized as whether a visa officer may start with a reverse onus.
ANALYSIS
[10] On Ms. Mina's behalf it was argued that the visa officer improperly ignored relevant evidence, namely the certified copies of Ms. Mina's diploma and university transcripts which she brought with her to the interview. It was argued that the visa officer improperly rejected Ms. Mina's explanation that the documents were issued after her graduation because she had lost the original documents and had to then apply for certified copies.
[11] I do not accept the submission that the visa officer ignored the evidence of the certified copies of the diploma and university transcripts which Ms. Mina provided at the interview. The record indicates that the visa officer did examine those documents but found them to be unreliable. Her reason for doing so was set out as follows in the visa officer's affidavit filed in opposition to this proceeding:
| 9. Given the high level of fraudulent documentation pertaining to education which is regularly submitted by applicants to the Live-In Caregiver Program, and in view of the fact that neither of the documents submitted by Ms. Mina was the original, I could not rely on these documents as proof of their contents. [...] In the experience of this office and Manila, the fact that the transcripts are issued many years after the fact is an immediate signal that fraud may have occurred. |
[12] In circumstances where a visa post has experienced a high level of fraudulent documentation with respect to documentation such as that submitted by the applicant, it is not unreasonable for a visa officer to rely on that experience and to more closely review those documents.
[13] In the alternative it was argued on Ms. Mina's behalf that even if the visa officer was correct in her approach to the education documents, her method of verifying the authenticity of the documents was completely improper. It was submitted that there is little relationship between completing a course of study and being able, 8 to 12 years later, to recall specific courses which were studied. The visa officer was said to have made an unreasonable inference when she concluded that Ms. Mina's lack of memory was proof that she had not taken those courses.
[14] The visa officer swore in her affidavit that:
| 9. [...] Moreover, attempts at verifying the validity of these types of documents have consistently proven to be ineffective. In the Philippines, fraudulent documents are readily available and their use is common. [...] Even if confirmation is received for documents sent for verification, the confirmation may also be fraudulent. Through malfeasances of the academic institutions, documents have been issued to individuals who have not completed studies as claimed. |
[15] On cross-examination the visa officer's testimony was as follows:
| 13. Q. What do you mean at paragraph 9 when you say that the means of verifying the validity of documents have proven to be ineffective? |
| A. From my experience of working with living care giver applications from applicants of the Philippines I found that the verifications have proven to be time consuming and ineffective. |
| 14. Q. What do you mean by ineffective? Can you give me an example? |
| A. For example, when I send the documents back to verify with the universities or the institution they take a long time and sometimes they delay the application, and even if they were positive verifications we later discover that they were fraudulent. |
| 15. Q. By that do you mean that the verification is fraudulent or the university has issued a fraudulent verification? Do you understand the distinction? |
| A. Not quite. |
| 16. Q. When you say that the verification came back as fraudulent do you mean that someone had somehow fabricated the verification, or that the university had actually issued the document for someone who was not actually qualified? |
| A. Both. |
[16] On this evidence, I cannot find that the failure of the visa officer to send the impugned documents for verification was, by itself, unreasonable.
[17] As for the reasonableness of the inference drawn by the visa officer, it was the visa officer's testimony, upon which she was cross-examined, that in response to a question as to the course of study Ms. Mina pursued:
| 13. [...] Ms. Mina took a long pause without any answer and then stated that she had taken one physical education course in her first year, a folk dancing course and had done some practice teaching in the last six months of her first year. |
| 14. When asked again whether she had only taken one physical education course, Ms. Mina said no, that she had actually taken two physical education courses: one in the first year and one in the second year. |
[18] In fact, the transcript provided by Ms. Mina indicates that Ms. Mina took a total of six physical education courses throughout her four years of study, of which five were taken in her final year.
[19] On re-examination the visa officer testified as follows:
| 71. Q. Did you ask her to provide any other information? Did you ask her if there is anything else that she remembered about the course? |
| A. I told her to give me any other details but she was not able to do so and I got no response from her. |
[20] In those circumstances, I cannot conclude that the visa officer drew an unreasonable inference in determining that Ms. Mina's profound lack of memory was such that she failed to establish the completion of the education requirements.
[21] It was argued that the visa officer was obliged to give Ms. Mina a reasonable opportunity to participate in the hearing and that Ms. Mina should have been given an opportunity to provide further information to allay the visa officer's suspicions about the impugned education documents.
[22] Ms. Mina was informed at the interview of the visa officer's concerns regarding the authenticity of the documents. The question then becomes, in my view, whether the visa officer provided Ms. Mina with a fair opportunity of correcting or contradicting the officer's negative assessment.
[23] What the visa officer did was to ask Ms. Mina to discuss her studies so as to reveal a familiarity with those studies consistent with having completed the studies. In view of the visa officer's evidence as to the ineffectiveness of verifying the validity of educational documents by more usual means I cannot conclude that this course was unreasonable or unfair or that it denied to Ms. Mina a reasonable opportunity to contradict the visa officer's assessment of the documents.
[24] In the result, the application for judicial review will be dismissed.
[25] Counsel for Ms. Mina suggested certification of the question as to whether a visa officer breaches any duty when, after impugning a document, the officer simply tries to authenticate the document by asking questions of the applicant.
[26] Counsel for the Minister opposed certification of the question on the ground that it was a fact based question.
[27] In my view the appropriateness of a visa officer's conduct will depend upon the particular circumstances of the case as put in evidence. Thus, I accept the Minister's submission that the question is too tied to the individual fact circumstances to be certified. No question is certified.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
October 24, 2000