Date:20000602
Docket: IMM-1087-99
BETWEEN:
DR. PRAKASH PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for judicial review of a decision rendered by Mona Fahmy (the "visa officer"), dated January 5, 1999. The visa officer refused the application for permanent residence of Prakash M. Patel (the "Applicant").
[2] The Applicant applied under the independent applicant category. He was assessed under the Canadian Classification and Dictionary of Occupations ("CCDO") and the National Occupational Classification ("NOC") in the intended occupation of Medical Laboratory Technologist (CCDO 3156-122) and (NOC 3211.1). The Applicant was awarded the following units of assessment:
| Specific Vocational Points 15 |
| Arranged Employment/Designated Occupation 00 |
| Knowledge of English and French 06 |
[3] In To v. Canada (Minister of Employment and Immigration),1 Justice Stone discussed the standard of review applicable on review of a decision rendered by a visa officer. Justice Stone wrote:
| Here, the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court: |
| It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, were required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.2 |
| [4] The Applicant argues that there is improperly tendered evidence. Specifically, the CAIPS notes have been included as part of the tribunal record. Given that there is no affidavit accompanying the CAIPS notes, the Applicant argues that these notes should be stricken from the record. |
| [5] The Minister of Citizenship and Immigration (the "Respondent") maintains that the CAIPS notes form part of the Certified Tribunal Record which is evidence properly before this Court. |
| [6] In Qiu v. Canada (Minister of Citizenship and Immigration),3 Madam Justice Reed addresses this question. Madam Justice Reed writes: |
| 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. |
| 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.). |
| 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. |
| 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. |
| 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.). |
| 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. 4 |
| [7] I concur with the reasoning of Madam Justice Reed. Thus, the CAIPS noted will not be struck from the record, however I am mindful of the reduced evidentiary value of the notes. |
[8] The Applicant states that the visa officer erred in awarding the Applicant 13 units of assessment instead of 15 units of assessment, as the Applicant had only completed 11 years of high school, rather than 12, before entering university.
[9] The Respondent argues that the visa officer reasonably assessed the Applicant in giving him 13 units of assessment for education.
[10] The Applicant completed seven years of primary school, four years of high school, seven years of university or college and two years of formal apprenticeship training.
[11] I am of the opinion that the visa officer did err in awarding the Applicant 13 units of assessment for falling under subsection (d) of Education Factor found in Schedule I of the Immigration Regulations, 1978, SOR/78-172 as amended. This subsection reads:
| where a first-level university degree that requires at least three years of full-time study has been completed, fifteen units; |
[12] In light of the fact that the visa officer erred in assessing the Applicant under the Education Factor, the application for judicial review is granted.
[13] Counsel for the parties have seven days following their receipt of these reasons
to request that a question be certified.
OTTAWA, Ontario
June 2, 2000
__________________
1[1996] F.C.J. No. 696, A-172-93 (May 22, 1996) (C.A.).
2Ibid. at para. 3
3[2000] F.C.J. No. 141, IMM-1022-99 (January 28, 2000) (T.D.).
4Ibid. at paras. 3-8.