Federal Court Decisions

Date: 20020130

Docket: IMM-2389-00

Neutral citation: 2002 FCT 115

Ottawa, Ontario, Wednesday the 30^th day of January 2002

PRESENT:            The Honourable Madam Justice Dawson

BETWEEN:

                                    NEMI GANAL DIZON

                                                                                                     Applicant

                                                    - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

                     REASONS FOR ORDER AND ORDER

DAWSON J.

[1]    Ms. Dizon seeks judicial review of the April 5, 2000 decision of a visa officer which refused Ms. Dizon's application for permanent residence in Canada. Ms. Dizon applied in the Independent/Assisted Relative categories in the occupation of Travel Counsellor, National Occupational Classification "NOC" 6431.0.

[2]    The visa officer awarded Ms. Dizon 63 units of assessment, 7 units less than the minimum of 70 units generally required. At issue in this application for judicial review are the visa officer's acknowledged errors in:

i)           awarding zero units for experience while at the same time awarding one unit of assessment in respect of the occupational factor; and

ii)          not awarding five units of assessment because Ms. Dizon had relatives in Canada and was applying in the Assisted Relative category.

[3]    The error with respect to the five units of assessment as an assisted relative was conceded by Ms. Dizon's counsel in oral argument not to be material to the decision. This application therefore turns on the effect of the first error.

[4]    Counsel were substantially in agreement that the applicable legal principles are as set forth in Min Lin v. Canada (Minister of Citizenship and Immigration), 2001 FCT 282; [2001] F.C.J. 501 at paragraph 2:

It is an error to award one unit of assessment for occupational demand and zero units of assessment for experience: Dauz v. Canada (Minister of Citizenship and Immigration) (1999), 2 Imm. L.R. (3d) 16 (F.C.T.D.). That error is reviewable if it had a material effect upon the decision, and if there was some evidence before the visa officer of relevant experience: Dauz, supra; Kopyl v. Canada (Minister of Citizenship and Immigration) (2000), 7 Imm. L.R. (3d) 281 (F.C.T.D.); and Bhogal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1581, IMM-5472-99 (September 28, 2000) (F.C.T.D.).

[5]                 To this statement of law counsel for the Minister adds the caveat that not only must there be some evidence before the visa officer of relevant experience, but such evidence must be meaningful and credible. I agree.

[6]                 As to the existence of such evidence in the present case, Ms. Dizon provided two certificates from her employer in support of her application for permanent residence which stated that she had worked both as a Counter/Reservation Officer and as an Operating Travel Agent. Additionally, both Ms. Dizon and the visa officer swore affidavits as to what transpired at Ms. Dizon's interview with the visa officer. It is fair to say that those affidavits recounted starkly disparate versions of events.

[7]                 The visa officer swore, among other things, that:

6. At the interview, the Applicant indicated that she had been a Travel Counsellor for 4 years. I referred to the main duties a Travel Counsellor would be expected to perform in Canada according to the NOC. I asked her what kind of travel information she provided to clients. Her response was that a trip to Europe costs $2380 dollars. I asked what other kind of information she provides besides this and she repeated the cost of a trip to Europe. I then asked her how she would organize, for example, a trip to Africa. The Applicant did not respond.

7. I then asked her how she would advise me on a travel destination if I wanted to travel somewhere outside the Philippines. She stated that a trip to Europe costs $2380 dollars. As I indicated in my CAIPS notes, the "Applicant was not forthcoming with any travel information". I asked her how she would promote a site in Europe. She said the Eiffel Tower is in Paris and there are pyramids in Egypt.

8. I indicated to the Applicant that one of the duties a Travel Counsellor would be expected to perform in Canada is "make transportation and accommodation reservations using computerized reservation and ticketing system". This duty is taken from the third bullet in NOC 6431, under Main Duties. The Applicant stated that she does not do that.

9. I asked the Applicant how she would promote a particular destination. She stated that a person could go to a city in the Philippines that is having a festival. I asked her for an example. She said the Mascara Festival. I asked where this is located and she stated Bacolod. I asked how she would promote this festival. The Applicant had no response.

10. I asked the Applicant how she made an airline reservation. She said that she uses the telephone and that their work place is not computerized.

[8]                 The visa officer's CAIPS notes prepared on the day of the interview contained all of that information set out in the visa officer's affidavit.

[9]                 Ms. Dizon swore, among other things, that:

9.              This was not my recollection of how the interview took place. I was very nervous for this interview. People in the community have told me that certain officers of the Embassy were very tough and at times, either rude or indifferent. I have asked Mr. Rotenberg through his local staff whether or not I could take a tape recorder into the interview and was advised that I could not. Therefore, when I met the visa officer she did nothing to allay my fears.

10.            The way the notes are cast, it appears that I was at lost [sic] to answer questions that were asked of me, however, such is not the case. When I started to answer the question that she asked, she would interrupt the answer and go on with another question.

11.            The first question she asked was answered with an immediate response. The officer then asked what kind of travel information I provided to clients. My response was immediate to the effect that I provided information by means of brochures and then discussed with the clients which places to go.

12.            This response was not noted by the visa officer in the CAIPS notes, but rather she reports that my answer was only "that a trip to Europe costs $2380".

13.            This response leaves the impression that I was not responding to the question or that I was a nincompoop.

14.            This not [sic] is not true and I state under oath that the way the note was cast requires an explanation, because I am not a nincompoop.

[...]

16.            Again, rather than the fact that she asked for information to which I made no response, it was that she interrupted my responses to her question. The way the notes are cast, they leave the wrong impression. It may be that as I became more nervous I took some time before I could answer but it never was that there was no response. I felt as I became more nervous that the visa officer had formed a negative impression of me prior to the interview and was doing little more than attempting to justify a refusal. Given the issues as mentioned by the previous person IDM, I was not given a fair chance to corroborate the information that was provided. If I might use the phrase "kangaroo court", this might best describe the visa interview.

[...]

19.            I recognized my obligation during the interview to answer the questions asked of me in a truthful and responsive way; however, I believe that Canadian-based officers should understand the fact that applicants are nervous and it is their duty to provide a meaningful atmosphere of comfort so that the applicant can have the best opportunity to explain oneself. This is especially so where the applicant has provided proof by way of third party information for which the Record shows no doubt.

[10]            The visa officer was cross-examined on her affidavit. Ms. Dizon was not. On cross-examination the visa officer testified that she formed the impression during the interview that Ms. Dizon was not forthcoming and did not perform the duties of a travel counsellor.

[11]            This conflict in the evidence is troubling. Ultimately it must be resolved on the basis that this is an application for judicial review and not an appeal. On an application for judicial review the onus is on the applicant to establish any reviewable error and it is not for the Court to exercise its own discretion on the merits of the application for permanent residence.

[12]            The determination of whether an applicant has performed the duties of the intended occupation is a pure question of fact. Paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7 provides that findings of fact are reviewable if made in a perverse or capricious manner, or without regard for the material before the visa officer.

[13]            Having read carefully the CAIPS notes, the affidavits filed by Ms. Dizon and the visa officer, and the transcript of the cross-examination of the visa officer I have not been persuaded that the visa officer's conclusion that Ms. Dizon was not forthcoming and had not performed the duties of a travel counsellor was perverse or capricious or made without regard for the material before the visa officer.

[14]            In so concluding, I particularly considered that on Ms. Dizon's own version of the interview she was nervous and took some time before she could answer, the CAIPS notes were contemporaneous in the sense that they were entered on the day of the interview, and the accuracy of the CAIPS notes were not materially impugned on the cross-examination of the visa officer. This evidence was sufficient to overcome any inference I might otherwise have drawn as a result of the respondent's failure to cross-examine Ms. Dizon.

[15]            Once the visa officer concluded that Ms. Dizon had not been forthcoming and had not performed the duties of a travel counsellor, the two certificates from Ms. Dizon's employer carried little or no evidentiary value. Therefore, it cannot be said that there was meaningful evidence before the visa officer of relevant experience.

[16]            In the absence of such evidence the visa officer's error was not material and hence not reviewable because pursuant to subsection 11(1) of the Immigration Regulations, 1978, SOR/78-172, Ms. Dizon was not entitled to obtain a visa once the visa officer properly determined that Ms. Dizon should receive no units of assessment for experience.

[17]            It follows that, notwithstanding the able and succinct submissions of Ms. Dizon's counsel, the application for judicial review will be dismissed. Counsel posed no question for certification and none is certified.

ORDER

[18]            THIS COURT HEREBY ORDERS THAT:

1.    The application for judicial review is dismissed.

"Eleanor R. Dawson"

                                                                                                           Judge