Date: 20000128
Docket: IMM-1022-99
BETWEEN:
HAILING QIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.:
[1] This is an application for judicial review of a visa officer"s decision, dated February 22, 1999, which refused the applicant"s application for permanent residence to Canada.
[2] The applicant seeks judicial review on the grounds that the visa officer failed in his duty to assess the applicant as an executive secretary, and on the ground that the visa officer erred in his assessment of the applicant"s personal suitability.
CAIPs Notes - Unsupported by an Affidavit
[3] Counsel for the applicant raised a preliminary issue: the status of CAIPs notes insofar as they recount what occurred at the visa officer"s interview of the applicant, when those notes are not supported by an affidavit from the visa officer.
[4] I accept counsel for the respondent"s submission that the notes are properly part of the certified record because they constitute the visa officer"s reasons for the decision that has been made. See Baker v. Canada (Minister of Citizenship and Immigration) (1999), 243 N.R. 22 (S.C.C.).
[5] However, in the absence of an affidavit from the visa officer having personal knowledge of the events in question, the notes are of dubious value as evidence of the facts recounted therein. In Wang v. Minister of Employment and Immigration, [1991] 2 F.C. 165 (C.A.), a memorandum and handwritten interview notes prepared by a visa officer were struck from the record because there was no supporting affidavit attesting to their veracity. The Court of Appeal wrote:
| The Respondent argues that, because of the convenience of arranging depositions by visa officers who, by definition, are outside Canada, the Court ought to accept their notes and memoranda as proof of the truth of their contents even though no affidavit averring to that truth is filed. In this, as in some of the other appeals dealt with serially, the visa officer concerned produced notes made during the interview and/or a memorandum made considerably later setting forth his recollection. ... |
| I see no justification for deviating from evidentiary norms in these circumstances. No legal basis for acceding to the Respondent"s argument has been demonstrated and, in my opinion, it is devoid of a practical basis. In the first place, unless the error said to vitiate the decision appears on the face of the record, the intended immigrant also, by definition, outside Canada must depose to his or her evidence and, unlike the visa officer, may not be conveniently located to do so. There is no justice in according one witness to the proceeding an opportunity to present evidence in a manner that precludes it being tested by cross-examination. In the second place, the suggestion of administrative inconvenience seems flimsily based. Given that visa officers normally inhabit premises in which may be found other functionaries before whom affidavits acceptable in Canada courts may be sworn, there seems no practical reason why his or her version of the truth cannot, with equal convenience, be produced in affidavit as in memorandum form. Finally, should a disappointed applicant wish to inconvenience a visa officer by a cross-examination there is the sanction that the right will have to be exercised, at least initially, at some considerable expense to the applicant. |
[6] The CAIPs notes entered into the computer by a visa officer are not different in kind from the handwritten notes of a visa officer. The only difference is the method of recording; the one being typewritten, the other handwritten.
[7] There are many decisions that follow the Wang decision. These are listed in Yan v. Canada (Minister of Citizenship and Immigration), (1999) (3 June 1999), IMM-2202-98 (F.C.T.D.). Also, the decision in Wang was recently cited with approval by the Federal Court of Appeal in Moldeveanu v. Canada (Minister of Citizenship and Immigration ) (1999), 1 Imm. L.R. (3d) 105 (F.C.A.).
[8] The respondent is not required to support her case with an affidavit, but the failure to do so will mean that the only sworn evidence before the Court as to what occurred at the interview will be that of the applicant. In the Yan decision, supra, Mr. Justice Cullen wrote:
| In the absence of a sworn affidavit by the visa officer attesting to the conduct of the interview, the only evidence before the Court on this point is the applicant"s affidavit which indicates that the visa officer made a positive assessment and wished him luck finding a job in Canada. Given the lack of contradiction, the applicant"s version of events must be presumed to be true. |
Assessment as a Secretary
[9] I turn then to the applicant"s assertion that she was not properly assessed under the category of executive secretary. There is objective evidence in the certified record - a typing test where the applicant only succeeded in typing six words a minute - that supports the visa officer"s conclusion that the applicant had not been able to demonstrate the skills required for the occupation of secretary or executive secretary.
[10] The word secretary has different meanings in different contexts. The documents from the applicant"s employer, the Red Cross Society of China, appear to be using the word to describe a person having administrative responsibility for a certain part of the organization, rather than as a description of a person fulfilling the functions described in the CCDO/NOC descriptions of secretary and executive secretary. Thus, the visa officer"s conclusion that the applicant did not have employment experience in the occupations of secretary or executive secretary cannot be said to be unsupported by the evidence.
Assessment of Personal Suitability
[11] The applicant also asked to be assessed under the occupation "translator". The visa officer found that the applicant was qualified and experienced in that field. The visa officer awarded her 68 points. She requires 70 to obtain a visa . The visa officer awarded the applicant 4 out of the 10 points possible for personal suitability.
[12] The CAIPs notes, which were entered into the system eleven months after the interview, state that the visa officer arrived at the 4 point assessment because "I feel the applicant has done very little in preparation for immigration. Her knowledge of Canada is rudimentary." He stated "she appears to be reasonably adaptable but clearly lacks motivation," and "she has almost no connections to Canada apart from one friend whom she knows little about". He continues "she will have to be particularly resourceful to settle - a talent she has not especially impressed me with", and "she has adequate funds but she appears to lack the commitment and drive needed to succeed in Canada."
[13] The applicant filed an affidavit which contains notes she made of the interview. These notes were made immediately following the interview, on the instruction of her counsel.
[14] These notes do not record any questions asked of the applicant about her knowledge of Canada. They show she was asked whether she had any friends or relatives living in Canada, to which she replied friends. When she was asked where her friends lived she replied "Toronto. I have an agreement with Mr. Rotenberg that I will work with him?" The notes indicate that the visa officer had made a positive assessment of her application (a situation similar to that in the Yan case, supra).
[15] The assessment of personal suitability is highly discretionary. It also accounts for a significant number of the total points an applicant may be awarded. In a case such as the present, where there is evidence that can support a conclusion that the applicant was never asked pertinent questions to elicit the kind of information that could support the subjective conclusions reached; where the sworn affidavit evidence of the applicant contradicts some of the visa officer"s findings; where the visa officer has filed no affidavit, and the applicant is thus deprived of the opportunity to question him as to the basis of his conclusions concerning her personal suitability; and where there is no obvious evidence that supports those highly subjective conclusions; I am persuaded that the decision is one that should be set aside, and the applicant"s application referred back for reconsideration by a different visa officer.
"B. Reed"
J.F.C.C.
Toronto, Ontario
January 28, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-1022-99 |
| STYLE OF CAUSE: HAILING QIU |
- and -
THE MINISTER OF CITIZENSHIP
| AND IMMIGRATION |
| DATE OF HEARING: WEDNESDAY, JANUARY 26, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: FRIDAY, JANUARY 28, 2000
| APPEARANCES: Ms. Mary Lam |
| For the Applicant |
| Mr. Brian Frimeth |
| For the Respondent |
| SOLICITORS OF RECORD: Mary Lam |
Barrister & Solicitor
808-255 Duncan Mill Road
Don Mills, Ontario
M3B 3H9
| For the Applicant |
| Morris Rosenberg |
Deputy Attorney General of Canada
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000128
Docket: IMM-1022-99
Between:
| HAILING QIU |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
| AND IMMIGRATION |
Respondent
REASONS FOR ORDER