Date: 20000530
Docket: IMM-1955-99
BETWEEN:
MEHDI ADIB-MORADI LANGROUDI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] On 19 February 1999, as a citizen of Iran, the Applicant appeared for an interview before a Visa Officer ("Visa Officer") in Damascus, Syria on an application for permanent residence as a dental hygienist. This application was rejected, it is agreed, because the Applicant could not meet the following employment requirement:
| Dental hygienists are required to complete a college program ranging from one-to-three years, or other approved program in dental hygiene recognized by the governing board within the province or territory of residence.1 |
[2] The primary issue raised by the Applicant in challenging the decision is that the Visa Officer breached the duty of fairness owed to the Applicant.
[3] The Applicant graduated with a degree in dental sciences from Meshhad University in 1978. He completed his military service thereafter in 1978 and 1979. In 1983, he obtained a Masters in Dental Sciences at the University of Wales, attending the Dental School in Cardiff and specializing in Periodontology. The Applicant worked for the Iranian government in a dental clinic for two years, working as a dental hygienist and dentist. In 1987, the Applicant established his own dental clinic, working as a dental surgeon and periodontist. In the course of his practice, the Applicant performed duties which are performed by a dental hygienist.
[4] At the time of the Applicant"s interview, in order to satisfy the employment requirement above quoted, the Visa Officer was aware that the Applicant had contacted the College of Dental Hygienists of Ontario and had forwarded to it information concerning his qualifications. The Visa Officer was also aware that the Applicant had been advised that his qualifications were under assessment.
[5] The Applicant"s complaint is that, instead of waiting for an answer from the College to determine if it would consider the Applicant"s studies or aspects of the Applicant"s studies as sufficient to constitute an "other approved program in dental hygiene", the Visa Officer refused the application at the interview.
[6] The Applicant argues that, while it is acknowledged that the onus is on him to prove he has fulfilled the employment requirement, a positive duty also exists on the Visa Officer to delay making a decision pending receiving an answer to the Ontario enquiry. The authority for this proposition is Jerome A.C.J."s statement in Nicolae v. Canada (Secretary of State) [1995] F.C.J. 224 at paragraph 12 where he says:
| Where the visa officer has an impression of deficiency in the proof being offered by an applicant, there may be a duty to give the applicant some opportunity to disabuse the visa officer of that crucial impression. [Authorities omitted]. |
[7] The Respondent"s response to this argument is that the Applicant appeared before the Visa Officer before he got a response from Ontario, and because he did not ask for an adjournment to get a response, the Visa Officer was entitled to proceed to decide as he did.
[8] I would agree with the Respondent"s argument if I was satisfied that a full and fair interview had been conducted.
[9] In his affidavit in support of his application, the Applicant swears that:
| 6. I attended for my interview at the Canadian Embassy on February 9th 1999 in Tehran, and met with Mr. Jean Francois Hubert Rouleau. As soon as my wife and I entered the room, he stated that he had considered our application and made his decision, and that he was refusing our case because I was a dentist. I tried to explain the circumstances to him and he stopped me. I tried to show him the documents I had brought with me, but he stopped me again. He showed me a book open to a specific page on his desk and said that those were the regulations. He then went to leave the room and asked me and my wife to leave the room. The entire meeting lasted no more than two minutes. |
| 7. I felt quite shocked by this treatment. I do not feel that I had an interview at all. I was not given any opportunity to explain why I believe I am qualified as a dental hygienist. Mr. Hubert-Rouleau did not ask either my wife or me one single question.2 |
[10] The response of the Visa Officer to the Applicant"s statement is contained in his affidavit and is as follows:
| 5. The interview took place in English in Tehran on 09 February of this year. The applicant had stated on his form IMM8 that he wanted to be assessed as a dental hygienist, described as 3222.1of the National Occupational Classification ("NOC") manual, a copy of which description is attached as Exhibit "A" in support of this affidavit. |
| 6. Since the applicant had stated in his application that he had completed studies in dentistry in November 1978, followed by a master"s in dentistry in 1983 and a doctorate in dentistry, and the NOC requires completion of a three-year college program in dental hygiene, my questions related to the applicant"s training. |
| 7. Contrary to the applicant"s allegations at paragraphs 6 and 7 of his Affidavit, the interview did no last only two minutes, in that he had an opportunity to explain his situation to me. My CAIPS notes, reproduced at page 152 of the certified material and transmitted in accordance with rule 318 ("certified material"), indicate that he explained to me that he was working as a dentist and as a hygienist and that he had discussed the problem of his qualifications with his consultant, who allegedly told him to submit his application nevertheless. This all takes more time than 2 minutes! |
| 8. Notwithstanding the applicant"s level of education and experience, I explained to him that he could not be qualified as a dental hygienist under the NOC since he did not have the training required, that is, a diploma in dental hygiene. In the circumstances, I did not ask any questions regarding his knowledge of Canada, funds, etc. The interview was therefore a little shorter than the norm of about 20 minutes.3 |
[11] On this evidence, regardless of the time it took, I am satisfied that the interview was perfunctory, and did not allow for any meaningful discussion of the failure of the Applicant to meet the employment requirements at that time.
[12] In addition to my concern that a reasonable interview was not conducted, I am also concerned by the Visa Officer"s references to what he believed the employment requirements to be. Within the evidence just quoted, it is not apparent that the Visa Officer clearly understood that, apart from completing a three year college program, that the Applicant could also qualify by completing an "other approved program".
[13] Under the circumstances, given the extremely high qualifications of the Applicant, and given the fact that an application for "accredation" was outstanding before the College of Dental Hygienists of Ontario, to be fair to the Applicant, I find that the Visa Officer should have recognized the need to be cautious in reaching a premature decision.
[14] Thus, I find that on the facts of the present case, that the Visa Officer should have given an opportunity for the Applicant to obtain an answer from Ontario before reaching a decision on the application outstanding. Since this was not done, I find a breach in due process occurred.
ORDER
[15] Accordingly, I set aside the Visa Officer"s decision and refer this matter to another Visa Officer for reconsideration.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
May 30, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-1955-99 |
| STYLE OF CAUSE: MEHDI ADIB-MORADI LANGROUDI |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: MONDAY, MAY 29, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: CAMPBELL J. |
DATED: TUESDAY, MAY 30, 2000
| APPEARANCES: Ms. Barbara Jackman |
| For the Applicant |
| Mr. David Tyndale |
| For the Respondent |
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
| For the Applicant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000530
Docket: IMM-1955-99
Between:
| MEHDI ADIB-MORADI LANGROUDI |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
| AND ORDER |
__________________
1Respondent"s Application Record, p. 7.
2Applicant"s Application Record, p. 9.
3As the affidavit found in the Respondent"s Application Record, pp.1-5 is in French, by agreement, an English translation is Exhibit 1 in this proceeding.