Date: 19991026
Docket No.: IMM-3412-98
Ottawa, Ontario, this 26th day of October, 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
ASMAT ALI KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
[1] Mr. Khan is a citizen of Pakistan who is currently a permanent resident of the United States. He wished to immigrate to Canada. He applied for a visa, giving his occupation as Guidance Head. He filed a letters of reference from his former employer, Montessori Pre/Grade School Tutoring Center Inc., (Montessori Center) as part of his application material. The processing centre in Buffalo N.Y. attempted to confirm his employment but there was no answer at the Montessori Center"s number. On the day of the interview, the visa officer in New York City also tried to telephone the Montessori Center but again, no one answered the telephone.
[2] At the interview, Mr. Khan indicated that he had worked as a guidance counsellor in Pakistan. However, the visa officer found that he was confused and vague about the dates of his employment, his duties and the types of services provided to the students. The visa officer told Mr. Khan that she did not believe that he worked as a guidance counsellor in Pakistan.
[3] Mr. Khan and the visa officer discussed his employment at the Montessori Center. She told him that the CD-ROM database which she checked shows Montessori Pre/Grade School Tutoring Center under "child care services" and not under public school. She advised him of the unsuccessful attempts to contact the Montessori Center by telephone. Mr. Khan told the visa officer that he taught mathematics to students in grades 2, 3, and 5. He did not mention any guidance or counselling services. Mr. Khan indicated that the Montessori Center has 3 classrooms but he was unable to explain how the Center provides instruction and guidance services for students in grades 1 to 6 in 3 classrooms.
[4] The visa officer told Mr. Khan that she did not believe his story. She gave him no points for experience (Item 3 of Schedule I to the Immigration Regulations 1978) because she did not believe that he had worked as a guidance counsellor in Pakistan or the United States. Section 11(1) of the Regulations provides that a visa shall not be issued to a person who scores zero on item 3. As a result, Mr. Khan"s application is refused.
[5] Mr. Khan"s view of the interview is somewhat different. He recalls it as being very short and focussing primarily on the question of licensing. According to notes made at the request of his counsel, following receipt of the refusal letter, the visa officer advised him that his application was refused because he was not properly licensed. He understood this to mean that he could not get a visa unless he was licensed in Canada but he is unable to become licensed in Canada until he is resident in a province. He feels this is unfair. He also believes that the visa officer should have written to the Montessori Center when there was no response to telephone calls.
[6] Mr. Khan takes the position that it was a breach of the duty of fairness for the visa officer not to take additional steps to confirm his employment experience when the visa officer clearly had doubts about it. He relies upon Muliadi v. M.E.I [1986] 2 F.C. 205 (F.C.A.) as authority for this proposition.
[7] In Muliadi, the visa application was rejected because the applicant"s business proposal was assessed unfavourably by an official of the Ontario government. The applicant was not made aware of the negative assessment nor was he given an opportunity to respond to it. Had he been made aware of the assessment, the applicant could have provided further information in support of his application:
| "Had the appellant been informed of that assessment before it was decided to reject his application, he might have been able to look into the matter and, possibly, to disabuse the visa officer of his view that the business was not viable. He might also have been in a position to tell the visa officer that no inquiries or contact had been made by the Ontario authorities. He had no way of knowing the result of the assessment process until informed of it by the visa officer in December 1982. By then the decision to reject his application because of the unfavourable assessment had already been made." |
[8] There is nothing in Muliadi which would impose on the visa officer a duty to pursue the applicant"s employment references when they could not be contacted by telephone. They are the applicant"s references; if there are particular problems in contacting them, it is for the applicant to see that they can be contacted. To hold otherwise would be to remove the onus from the applicant to satisfy the visa officer of his\her entitlement. The only duty which was imposed on the visa officer in these circumstances was to advise Mr. Khan of her doubts about his employment. She did this. Mr. Khan had the opportunity to explain. This is all that the duty of fairness required. Furthermore, Muliadi concerns information provided to the visa officer by someone other than the applicant, information which the applicant would not know of unless disclosed to him by the visa officer. In this case the information was supplied by the applicant. Muliadi has no application to these facts. See Jurawan c. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1240, Zhang c. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 638.
[9] Mr. Khan also relies upon Gill v. M.E.I. (1990) 12 Imm. L.R. (2d) 305 (F.C.T.D.) in which the applicant reported in his application that the had never been married. Had he ever been married, he would have been ineligible under the program under which he was applying. The visa officer received information that the applicant had been married twice. This is not disclosed to the applicant at the time of interview and his application is rejected on the grounds of previous marriage and untruthfulness. Jerome A.C.J. (as he then was) held that the applicant ought to have been told of the information and been given an opportunity to present his side of the case. Once again, this is a case of information provided by third parties, of which the applicant would not have been aware. It has no application to these facts.
[10] In summary, there was no obligation on the visa officer to do anything other than what she did, that is, to advise Mr. Khan of her concerns about his employment status. It was not for her to pursue the matter further. He had the obligation to satisfy her as to his present employment status. He did not do so.
[11] In any event, it is clear that the fundamental problem with Mr. Khan"s application was that he was unable to persuade the visa officer that he had ever worked as a guidance counsellor. This is a conclusion which she came to after interviewing the applicant and hearing him describe his duties in the guidance positions which he said he held. The refusal was a function of the applicant"s inability to describe his duties as a guidance counsellor in such a way as to persuade the visa officer that he had in fact worked as a guidance counsellor. This was a finding which was open to her on the evidence before her. It is a finding which was critical to his application as it resulted in a score of 0 for experience, which precluded the possibility of a visa being issued. There is no basis for interfering with this finding by the visa officer.
[12] Mr. Khan"s final ground is that the visa officer did not take relevant factors into account in assessing Mr. Khan"s personal suitability. The argument flows from the absence of any detail in the computer notes as to questions which were asked of Mr. Khan, as well as the visa officer"s inability on cross-examination to recall the specific questions which she asked Mr. Khan. Counsel concludes from the absence of detail that the appropriate questions were not asked. In my view, the absence of references to particular questions in the computer notes is a matter which goes to credibility. It is not, in and of itself, evidence of a failure to consider particular factors. Likewise, the visa officer"s lack of memory on the specific questions which she might have asked the applicant is a matter going to credibility and not evidence per se of a failure to consider the appropriate factors. Having read the entire cross-examination of the visa officer, I am not prepared to draw any adverse inferences as to credibility. As a result, I believe her evidence that she did consider the appropriate factors in assessing Mr. Khan"s personal suitability.
[13] In the result, there is no basis upon which I can interfere with the visa officer"s decision. The application is dismissed.
ORDER
The application is dismissed.
"J.D. Denis Pelletier"
Judge