Date: 20001116
Docket: IMM-2094-99
BETWEEN:
ALI AKBAR MOHAMMAD SHAHI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Ali Akbar Mohammad Shahi (the "Applicant") seeks judicial review of the decision of Visa Officer, Peter M. Current (the "Visa Officer") dated March 3, 1999. In his decision, the Visa Officer refused the application for permanent residence on the ground that the Applicant was a member of the inadmissible class of persons described in s. 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), specifically on the basis that he was unable to fulfill the requirements of sections 8, 9 and 11 of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations").
[2] The Applicant is a citizen of Iran. He applied for admission into Canada as a permanent resident in the independent category, stating that his intended occupation in Canada was that of a respiratory therapist. The Applicant applied on behalf of his wife and two dependent children, as well as on his own behalf. He identified his current occupation in Iran as that of respiratory assistant (oxygen therapist).
[3] The Applicant attended an interview with the Visa Officer on February 17, 1999. The refusal letter was dated March 3, 1999. According to the refusal letter, the Applicant was assessed in the occupation of respiratory therapist according to the National Occupational Classification ("NOC"). The NOC is a catalogue of occupations in Canada prepared by Human Resources Canada. It provides a description of the occupations listed in it and the requirements to be met in order to work in Canada.
[4] In the refusal letter, the Visa Officer awarded the following points in the assessed occupation of respiratory therapist NOC 3214:
| Age: 10 |
| Occupation: 10 |
| Specific Vocational Preparation: 15 |
| Experience: 0 |
| Arranged Employment: 0 |
| Demographic Factor: 8 |
| Education: 16 |
| English: 9 |
| French: 0 |
| Relatives: 0 |
| Suitability: 5 |
| TOTAL 73 |
[5] Pursuant to section 9(1)(b)(i) of the Act, minimum units of assessment which must be obtained by an immigrant applying in the independent category is 70 units. As noted above, the Applicant obtained 73 units. However, the Visa Officer awarded no units for experience. On that basis, pursuant to section 11(1) of the Regulations, the Applicant could not be issued a visa. The Visa Officer clearly stated in his letter that the reason for his refusal was the lack of any credit for experience and this conclusion flowed from his findings that the Applicant did not have the necessary training or educational qualifications required under the NOC.
[6] According to the refusal letter, the Applicant was also assessed as an Anesthesiologist (NOC 311). The refusal letter does not say why the Applicant was refused in this alternate occupation, although it is clear that he was refused.
[7] Upon the hearing of this application for judicial review, the Applicant raised several issues. He alleged that the Visa Officer improperly assessed the NOC requirements for a respiratory therapist. Second, he argued that the Visa Officer wrongfully failed to exercise the positive discretion available under section 11(3) of the Regulations. Third, he argued that the failure of the Visa Officer to respond to a written request to extend time for submission of further information was procedurally unfair. Finally, he alleged that the absence of an affidavit from the Visa Officer limited the reliance to be placed on the CAIPs notes.
[8] However, my approach to this Application for Judicial Review is affected by the absence of an affidavit from the Visa Officer. The effect of the absence of an affidavit from the Visa Officer has been considered by this court in Chou v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 314 (Q.L.) (F.C.T.D.) where Madam Justice Reed said at paragraphs 13 and 14:
| I accept, then, that the CAIPs notes should be admitted as part of the record , that is, as the reasons for the decision under review. However, the underlying facts on which they rely must be independently proven. In the absence of a visa officer's affidavit attesting to the truth of what he or she recorded as having been said at the interview, the notes have no status as evidence of such. |
| Counsel argues that I should accept the truth of the facts stated in the notes, unless they are contradicted in the applicant's affidavit. I do not accept that position. As noted above, to give the contents of the notes that status would be to treat them as evidence, when they cannot be so treated. In addition, in this case the applicant's affidavit was filed before she could know what was in the CAIPs notes. She cannot be expected to refute statements of which she was not aware. |
[9] I adopt the same approach here. In the absence of an affidavit from the Visa Officer, the CAIPs notes are not available as evidence on this application for judicial review. In my opinion, in the absence of such evidence, it is impossible to assess the reasonableness of the decision which the Visa Officer made. Accordingly, the application for judicial review is granted and the Applicant's application for permanent residence will be reconsidered by a different Visa Officer.
[10] Counsel submitted no question for certification.
J.F.C.C.
Ottawa, Ontario
November 16, 2000