DRAFT 2
Date: 19990820
Docket: IMM-6828-98
BETWEEN:
TIANMING WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PELLETIER J.
- [1] Mr. Wang is an unsuccessful visa applicant. He asks the assistance of the Court in having his application reconsidered.
| [2] Mr. Wang received a degree in computer science from the Beijing Institute of Technology in 1984. From 1984 to 1996 he worked in various computer related capacities at the Qiqihar Machinery Factory in Qiqihar, People"s Republic of China except for a two year stint with the Keytech Computer Corporation in Beijing. Mr. Wang applied for a visa in the occupational classification of Computer Programmer. This required him to show that he had work experience performing the duties of a computer programmer as set out in the NOC. The Immigration authorities asked Mr. Wang to submit proof of his work experience in the form of documentary evidence from former employers which should be accompanied by a certified translation, if the original was not in English or French. For reasons which are not clear, Mr. Wang asked a friend to translate the letter which the Qiqihar Machinery Factory supplied. The friend was not able to certify the translation, and, in addition, made an error in translation by identifying the employer as the Harbin Peace Machinery Factory. Since Mr. Wang"s application did not show that he had ever worked for the Harbin Peace Machinery Factory, the letter was not helpful. |
| [3] There is a conflict in the evidence as to the conduct of the interview, which took place in New York where Mr. Wang now resides. Mr. Wang alleges that he was poorly treated and the Visa Officer denies that he was treated any differently than any other applicant. This is only relevant insofar as it provides context for that portion of Mr. Wang"s affidavit which deals with the Visa Officer"s assessment of his work experience:When we got to the working experience section, she asked me the documents. I said that I have submitted the original document along with the translation. She found the original document and the translation. She showed me the translation and said: "The translation is not acceptable, it is not notarized." I said: "I can get it notarized and submit it right after the interview." She said: "No, you can not submit it later, you must submit it before or on the interview, and the certificate of experience should be done like birth certificate by the Notary Public in China. I can not give you any unit on this factor." I requested again for later submitting. She still refused my request. Finally she told: "Sir, your application is refused. After you finish your graduate studies and improve your English, you can apply again." Then she finished the interview. |
| [4] This is to be compared with the affidavit of Sara Trillo, the Visa Officer, which in its material parts provides as follows: |
| 10. As proof of his work experience, the Applicant presented a letter of reference in Chinese which the Applicant had translated into English by a friend who was not a certified translator. I informed the Applicant that his reference letter was not acceptable because as indicated in the interview letter, all documents not in English or French must be accompanied by a certified translation. Nonetheless I examined the Applicant"s letter of reference. |
11. The translation indicated that the letter was from Harbin Peace Machinery Factory and that the Applicant had worked in the information centre engaged in developing applied software, had participated and taken charge of developing applied software many times, that in 1985 the Applicant was twice recipient of the Excellent Worker award, that in 1987 he had presided over designs and organization, that in 1990 he had exploited motor-driven engine and driving management information system for the Harbin Department store and that in 1995 he had been appointed Deputy Director of the Information Centre. It also indicated that the letter had been issued on September 15, 1997.
12. I compared the contents of the reference letter to the section on the Applicant"s application entitled "work history for the last ten years". Nowhere in the section entitled "work history for the past ten years" did the Applicant indicate that he worked at Harbin Peace Machinery Factory.
13. As the Applicant had not provided any reliable proof of work experience, I did not consider that he had work experience in his intended occupation, I determined that he did not have at least one year full-time experience in his intended occupation and I did not award him any units of assessment under the Factor Experience of Schedule I of the Regulations.
14. During the interview I became aware that the Applicant spoke English with difficulty. I asked the Applicant questions about his Application, his work experience and his qualifications and either he could not or would not answer my questions. I requested that the Applicant read the declaration, which is item 32 of the Applications, before he signed it and he could read and understand what he read. I dictated to the Applicant from section 29(a) of the Application He could write English well. Even if his spoken English was not good, I awarded the applicant six units of assessment for knowledge of the English language in the well level, even though the interview had been difficult due to either the Applicant"s limited knowledge of spoken English or his unwillingness to answer my questions. I did not award the Applicant any units of assessment for French as he indicated that he had no knowledge of the French language.
15. I have read the assertions on paragraph 4 of the Applicant"s Affidavit which was sworn on January 14, 1999, where he indicates that he was treated rudely by the immigration officer and that the officer impolitely interrupted his answer many times, spoke much faster than normal on purpose and made him confused. I was not rude to the applicant. I treated him in the same polite manner that I treat all the applicants. I did not interrupt him nor did I speak much faster than normal on purpose to make him confused. I gave every opportunity to the Applicant to answer my questions and to inform me of his qualifications and experience. ...
[5]Following the interview, Ms Trillo forwarded a letter to Mr. Wang dismissing his application for a visa because "... you do not have the qualifications nor the required minimum of one year experience in your intended occupation, at least for Canadian standards." Mr. Wang was allowed no points for experience in the assessment grid found at Schedule I to the Immigration Regulations 1978 the effect of which was to deny him a visa because s. 11(1) of the Regulations provides that a visa shall not be issued to a person who scores 0 on the experience item.
[6]Mr. Wang commenced an application for judicial review, as a result of which he obtained disclosure of the notes made by Visa Officer on the computer system ( the CAIPS notes) immediately following the interview. The material part of those notes are as follows:LETTERS ON FILE ARE NOT ACCEPTABLE. ORIGINALS ARE IN CHINESE AND THE TRANSLATION HE SAYS IS FM A FRIEND, NOT OFFICIAL TRANSLATION AS REQUESTED BY US. NOT ACCEPTABLE.
ONLY HAS 1 LETTER OF REFERENCE ON FILE. HE SAYS IT IS THE QIQIHAR MACHINERY FACTORY. THE TRANSLATION FM IS FRIEND INDICATES THAT HE WORKED IN INFO CENTER ENGAGING IN DEVELOPING APPLIED SOFTWARE. DEVELOPING APPLIED SOFTWARE MANY TIMES. IN 85 RECEIVED EXCELLENT WORKER AWARD IN 87 PRESIDED OVER DESIGNS AND ORGANIZATION.
FM HARBIN P[EACE MACHINERY FACTORY.
NO PROOF OF WORK EXPERIENCE - ZERO POINTS FOR EXPERIENCE.
HE DOES NOT MEET THE REQUIREMENTS. HE HAS NOT PROVIDED VALID PROOF THAT HE HAS EXPERIENCE IN HIS OCCUPATION. HAS NOT CONVINCED ME THAT HE HAS THE EXPERIENCE IN HIS INTENDED OCCUPATION. ADVISED SUBJ OF THIS AND ALL THE REASONS FOR THE REFUSAL AND THAT I WILL CONFIRM IN WRITING ASAP. HE HAS A LOT OF TROUBLE TO COMPREHEND ENGLISH. HE CAN READ AND WRITE, BUT WHEN YOU ASK QUESTIONS HE GETS A VAGUE LOOK AND DOES NOT RESPOND. I DO NOT THINK THAT HE HA [SIC] THE EXPERINCE [SIC] ADVISED THAT IW ILL CONFIRM MY DECISION IN WRITING ASAP AND AS ROLF NOT PAID NO REFUND DUE.
[7]The grounds of Mr. Wang"s application are that the Visa Officer ought to have allowed him to file a certified translation of the experience letter and that she ought to have brought the contradiction between the employer referred to in the experience letter and the employers listed in the application form to his attention to allow him to explain the discrepancy to her.
[8]In reviewing the material, the basis of the Visa Officer"s refusal is not clear. Paragraphs 11, 12, and 13 of the Visa Officer"s affidavit suggest that the Visa Officer did not take the contents of the letter into account because it was not "reliable proof of work experience". The CAIPS notes also refer to the lack of proof of occupational experience but then go on to say that the applicant has not convinced her that "he has the experience in the intended occupation". This is to be read in the context of the comments made at para 14 of the Visa Officer"s affidavit about the applicant"s difficulty with English.
[9]On what ground was Mr. Wang"s application rejected? Was it rejected because the Visa Officer did not consider the contents of the experience letter on the formal ground that it was not properly certified? (No reliable proof) Or, was it rejected because neither the letter nor Mr. Wang"s answers at the interview, taken at face value, satisfied the Visa Officer that Mr. Wang met the requirements of the NOC? ("He has not convinced me..."). Or is it some undefined combination of the two?
[10]Mr. Wang focuses upon the first possible explanation and says that the Visa Officer had a duty to either allow him to file a certified translation of the letter and to allow him to explain the discrepancy between the letter and his application. He relies on a number of cases which hold that a Visa Officer must allow an applicant an opportunity to speak to the Visa Officer"s concerns about the application.
[11]In Pangli v. Minister of Employment and Immigration (1987) 4 Imm. L.R. (2d) 266, the Federal Court of Appeal held that where there was confusion about an applicant"s intention caused by a discrepancy between two documents, natural justice required that the applicant be interviewed to remove the confusion or discrepancy. The applicant had filed an application for permanent residence and, on the same day, in the Canadian Consulate in New Delhi he made a statutory declaration said that his intention was to come to Canada for one year only to visit his daughter. This intention would take him outside the definition of immigrant which would make him ineligible for a visa. The Court made a point of saying that, in the particular circumstances of the case, the applicant was owed an interview. The particular circumstances were not doubt the fact that the problem was in some sense created by Immigration officials assisting the applicant in electing inconsistent alternatives without questioning him to see what he really wanted to do. That element is absent here. The documents in question were submitted by the applicant in the course of pursuing his application. The discrepancy was created by someone for whom the applicant, not the respondent, was responsible.
[12]The applicant relies upon Chou v. Minister of Citizenship and Immigration [1998] F.C.J. No. 819 for the proposition that contradictory evidence requires the Visa Officer to request supplementary information. Interestingly enough, in Chou, Teitlebaum J. refers to a previous decision of his in which he discusses the duty of fairness at some length:[para19] It appears that the duty to apprise the applicant of the visa officer's concerns is limited. Given that the applicant must establish that he has met certain criteria to enter Canada, the applicant should assume that the visa officer's concerns will arise directly from the Act or the Regulations. This does not mean that the visa officer should remain silent throughout the interview while the applicant states his case. The visa officer should lead the interview and attempt to draw out relevant information about the application. What it does mean is if, for example, an applicant for a visitor's visa has provided weak evidence supporting his position that he has sufficient ties to his home country to ensure his return, then the visa officer does not have to apprise the applicant of this concern. Such a concern arises directly from the Act and the Regulations. It may be preferable if the visa officer would inform the applicant of this concern but failure to do so does not violate the duty of fairness.
[para20] On the other hand, the prime example of when a visa officer should inform the applicant of his concerns is when the visa officer has obtained extrinsic evidence. In that situation, the applicant should have the opportunity to disabuse the officer of any concerns that may arise from that evidence.
[para21] In essence, where an interview is necessary to assess an applicant, the duty of fairness requires that the visa officer thoroughly interview the applicant on factors relevant to the claim and give the applicant an opportunity to respond to allegations or assumptions of which the applicant could not be reasonably aware.
[13]On the strength of this passage, it would not be fatal if the Visa Officer did not specifically bring the discrepancy between the experience letter and the application to Mr. Wang"s attention because the letter is not extraneous information. It is information which the applicant provided as part of the process of pursuing his application. It is not "allegations or assumption of which the applicant could not be reasonably aware". This is particularly so where the error is an error of translation and the applicant is required to have a working knowledge of English or French. The applicant was in a position to know of and correct the error even before the material was submitted to the Immigration officials.
[14]In Dhesi v. Minister of Citizenship and Immigration [1997] F.C.J. No. 59, the 19 year old applicant gave contradictory answers in the course of his interview. In addition, some of the answers contradicted the documentary proof already submitted by the applicant. Dube J. held that there was a duty on a Visa Officer to deal with the totality of the evidence and to explore contradictions between oral evidence and previously supplied documentary evidence. In this case, the discrepancy is between two pieces of documentary evidence provided by the applicant, one of which is tendered in proof of the contents of the other.
[15]In Huang v. Minister of Citizenship and Immigration (1998) 41 Imm. L.R. (2d) 247 (F.C.T.D.), the Visa Officer received extrinsic information which led her to conclude that the applicant had improperly obtained the credentials which he claimed. Heald J. held that a Visa Officer who believes that an applicant is guilty of a serious impropriety must give the applicant a chance to explain. This case falls within the class of cases dealing with extrinsic evidence.
[16]Hossain v. Minister of Citizenship and Immigration (1998) FCJ No 486 is authority for this proposition:[para11] It is the duty of a visa officer, before disposing of an application, to advise the applicant, where a negative assessment is contemplated, of that fact, and then provide to the applicant a fair and reasonable opportunity of answering the evidence against him.
[17]In this case, the Visa Officer did advise the applicant at the interview of her concerns about his work experience. She did not advise him of the discrepancy in the material filed but the substantive issue was the work experience issue.
[18]On balance, this claim reduces itself to an issue of the adequacy of an applicant"s materials. Mr. Wang filed a document in support of his claim which did not meet the Immigration Department"s criteria. It was not a certified translation. The wisdom of the Department`s insistence on certified translations is shown by the fact that this translation contained an error which was not helpful to the applicant. The Visa Officer was entitled to reject the document out of hand. Instead she considered it and discovered a discrepancy between the letter the application form. This simply turned out to be another reason for rejecting the document. By considering the document, the Visa Officer did not lose the right to reject it. To hold otherwise would discourage Visa Officers from considering non-complying documents when such consideration could only assist applicants. I find that the Visa Officer"s failure to bring the discrepancy between the experience letter and Mr. Wang"s application to his attention was not a denial of natural justice because the Visa Officer was entitled to reject the letter as there was no certified translation. The fact that she could reject for another reason did not change applicant"s position.
[19]Mr. Wang also complains that he was denied the opportunity to supply a certified translation. The Visa Officer denies Mr. Wang"s allegation that he offered to provide a certified translation. The onus is on the applicant to provide the materials necessary to satisfy the Visa Officer. In this case, the defect in the document should have been obvious to Mr. Wang, given his allegation on his application that he wrote English fluently. Since this was not extrinsic information, which the applicant could not have known about, I find that there was no obligation on the Visa Officer to provide Mr. Wang with an opportunity to file proper materials, even if he had asked to do so.
[20]This disposes of the argument based on the absence of proof of experience. However, if the argument is that there was evidence of experience which the Visa Officer failed to consider ("I am not convinced"), the result is the same. The affidavit of the Visa Officer as well as the CAIPS notes make it clear that Mr. Wang was given the opportunity to address the Visa Officer on the question of his experience. Paragraph 14 of the Visa Officer"s affidavit speaks to this. The Visa Officer had the benefit of an interview with Mr. Wang, at the conclusion of which she decided that she did not believe that Mr. Wang had the experience he claimed. This is a matter of credibility which I am not prepared to overturn.
[21]For these reasons, the application to set aside the decision of the Sara Trillo communicated in her letter of November 25 to the applicant is dismissed.
Judge
Toronto, Ontario
August 20, 1999