Date: 20001026
Docket: IMM-4544-99
BETWEEN:
DILBAGH WALIA
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Mr. Walia, a citizen of India, applied for admission into Canada as a permanent resident in the independent category. His intended occupation, as recorded in his application, was as a "Draughtsman". His application was refused following an interview and review of his file by Mr. Michael Watts (the "Visa Officer").
[2] The refusal letter, dated July 25, 1999, advised that the Applicant had failed to obtain the necessary total of 70 units.
[3] According to the refusal letter, the Applicant earned the following units of assessment:
| Age 10 |
| Occupational Demand 01 |
| Specific Vocational Preparation 15 |
| Experience 06 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 15 |
| English 06 |
| Assisted Relative Bonus 05 |
| Suitability 03 |
| Total 69 |
[4] The Applicant raises three issue in his application for judicial review. He says that the visa officer erroneously failed to assess him as a civil engineering technologist. Secondly, the Applicant argues that the Visa Officer improperly considered extraneous factors in assessing his personal suitability. Finally, the Applicant submits that the CAIPs notes maintained by the Visa Officer are inconsistent with this sworn affidavit and in the absence of an affidavit from the Visa Officer, those notes are not evidence.
[5] The Respondent replies that the Visa Officer was under no duty to assess the Applicant for an alternative occupation. The Respondent denies that the Visa Officer considered extraneous factors and states that there was no error in law in reaching the decision under review. Finally, on the issue of the CAIPs notes and the absence of an affidavit from the Visa Officer, the Respondent submits that the CAIPs notes are in any event part of the certified tribunal record and may be admissible as evidence in the guise of business records.
[6] In my opinion, the disposition of this application for judicial review turns on the status of the CAIPs notes. If these notes are not properly before the Court as "evidence" then they are present only as part of the certified tribunal record. For that reason, I will first address the status of the CAIPs notes.
[7] That question was recently 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:
| 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. |
[8] I rely on this decision as authority for the exclusion of the CAIPs notes as evidence.
[9] I reject the argument of the Respondent that the CAIPs notes can be accepted as evidence as business records, pursuant to the Canada Evidence Act, R.S.C. 1985, C-5, as amended, section 30. In my opinion, the making of notes during an interview by a visa officer is not "a record made in the usual and ordinary course of business" contemplated by section 30(1) of the Canada Evidence Act, supra.
[10] A visa officer can be called upon to act as a decision-maker. That role requires the exercise of the discretion granted by the Immigration Act, R.S.C. 1985, c. I-2, as amended. The discharge of the decision-making function is not a "business" contemplated by section 30(1) of the Canada Evidence Act, supra.
[11] The absence of an affidavit from the Visa Officer means that I am left to consider this application for judicial review on the basis of the tribunal record and the affidavit filed by the Applicant in this proceeding, and the submissions by counsel.
[12] The Applicant was denied a positive decision on his application for permanent residence in the independent category because he failed to obtain sufficient units of assessment. The specific weakness was his assessment for personal suitability. He was short by one unit of assessment for reaching the minimum of 70 units of assessment. In his affidavit, the Applicant says that the Visa Officer failed to ask him any questions about Canada. This is not contradicted by any evidence from the Visa Officer and puts his assessment in doubt.
[13] Furthermore, the refusal letter initially says that he failed to obtain the necessary units of assessment because he did not obtain at least one unit for relevant experience.1
[14] This is obviously wrong since the table of awarded units shows an award of 6 units for experience.
[15] In my opinion, these two points cast doubt on the reasonableness of the decision. No explanation was provided by means of an affidavit from the Visa Officer. The CAIPs notes are not before the Court as evidence.
[16] Accordingly, the application for judicial review is allowed and the matter will be submitted to a different visa officer for redetermination.
[17] Counsel were asked if there would be a question for certification arising from this case. Counsel for the Respondent asked that were I to dispose of the matter on the issue of the CAIPs notes, then I should certify the same question that arose from the decision of this Court in Chou, supra. The following question will be certified:
| Are a visa officer's notes concerning an interview with an applicant, as entered in CAIPs notes, evidence of what took place at the interview, in the absence of an affidavit from the visa officer attesting to the truth of what he or she recorded as having been said at the interview? |
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
October 26, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-4544-99 |
| STYLE OF CAUSE: DILBAGH WALIA |
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: TUESDAY, OCTOBER 24, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: THURSDAY, OCTOBER 26, 2000
| APPEARANCES BY: Mr. M. Chaudhary |
| For the Applicant |
| Ms. L. Hendricks |
For the Respondent
| SOLICITORS OF RECORD: Chaudhary Law Office |
Barristers & Solicitors
405-255 Duncan Mill Rd.
North York, Ontario
M3B 3H9
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20001026
Docket: IMM-4544-99
Between:
DILBAGH WALIA
Applicant
-and-
| THE MINISTER OF |
CITIZENSHIP AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
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