Date: 20010322
Docket: IMM-2287-00
Neutral Citation: 2001 FCT 220
BETWEEN:
GANG PAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The visa officer refused the applicant's request for a student permit because of the failure to submit the original, in addition to the copy, of certain deposit certificates. Copies of these certificates had been provided by the applicant to establish the sufficiency of his financial resources to travel to Canada and to pay his tuition fees and living expenses while studying here, as required by paragraph 15(1)(b) of the Immigration Regulations, 1978, SOR/78-172.
[2] The applicant challenges this refusal as unreasonable. In his view, the original certificates were unnecessary in light of the other information provided to the visa officer to satisfy the financial requirements of paragraph 15(1)(b).
[3] In November 1999, the applicant's application for the visa permit was received and first reviewed by immigration officials at the Canadian embassy in Beijing.
[4] On March 18, 2000, an immigration official wrote to the applicant requesting that he bring "original deposit receipts for all of the copies of deposit receipts you submitted". It is understood that "deposit receipts" referred to a series of bank certificates in the total amount of approximately RMB580,000.
[5] On April 4, 2000, the applicant was interviewed by the visa officer. He did not have the "original deposit receipts" that had been requested. Instead, he advised that on February 18, 2000, he converted the funds into U.S. currency. He provided the new deposit certificate of US$72,000 with the February date.
[6] Immediately after the interview, the visa officer refused the applicant's request for a student permit because he had not submitted the original deposit receipts. No other reason was given for the refusal.
[7] The respondent acknowledges that the visa officer received the deposit certificate for US$72,000 and that this amount met the financial sufficiency requirements of paragraph 15(1)(b) of the Regulations.
[8] The applicant acknowledges that his affidavit does not disclose his reasons for not producing the required "original deposit receipts". However, he relies on the information in the three affidavits in support of his application for judicial review to establish the unreasonableness of the visa officer's decision. None of the three affiants was cross-examined.
[9] The respondent defends the visa officer's insistence in examining the original certificates on the basis of information in the CAIPS notes. The visa officer was concerned that the amount of the funds in bank certificates was more than what might be expected in view of the total annual income of the applicant's parents. Also, the visa officer suspected that one or more of the certificates may have been altered. Counsel for the respondent also argued the applicant did not establish during the interview that the original funds had in fact been transferred and converted into the new certificate of US$72,000.
[10] The respondent, however, relies on the CAIPS notes without having produced an affidavit from the visa officer.
[11] In Tajgardoon v. Canada (Minister of Citizenship and Immigration) (2000), 8 Imm. L.R. (3d) 310 (T.D.), Justice Pelletier thoughtfully analysed the evidentiary value of the visa officer's CAIPS notes in an application for judicial review. He concluded that the admissibility of the CAIPS notes differed depending on whether they were being relied upon by the applicant or by the respondent (at paragraphs 19 and 20):
19. ... the contents of the CAIPS notes are admissible against the respondent as admissions against interest by the visa officer whose decision the respondent seeks to uphold.
20. However, the respondent is not in a position to rely on the CAIPS notes as proof of their contents because this is classic hearsay. They are not admissible as business records in the absence of evidence which establishes that they satisfy the requirements of admissibility of business records. In order to make the CAIPS notes evidence of the facts to which they refer, they must be adopted as the evidence of the visa officer in an affidavit. [Emphasis added.]
I respectfully adopt the reasoning of Justice Pelletier. In this case, the respondent should have filed the affidavit evidence of the visa officer if reliance was to be made on the CAIPS notes in defending the reasonableness of her decision. The concerns raised in her CAIPS notes, which the applicant considers unfounded, could then have been tested in cross-examination.
[12] In the absence of the visa officer's affidavit, it is not appropriate for this court to take into consideration her reasons for wanting to verify the original certificates, as set out in her CAIPS notes.
[13] Without the visa officer's affidavit, the admissible evidence before this Court is the acknowledgment by both parties that the applicant provided a bank certificate for US$72,000 which met the financial requirements of paragraph 15(1)(b) of the Regulations. The decision to refuse the student permit simply because the original deposit receipts were not produced by the applicant can only be characterized as one made without regard to the other relevant material before the visa officer.
[14] In reaching this conclusion, I do not determine whether the visa officer's concerns were misplaced. However, because of her failure to support her CAIPS notes with affidavit evidence, her decision must be set aside and the matter referred for redetermination by a different immigration officer who can assess, if the concerns still exist, the source of the funds.
[15] Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
March 22, 2001