Date: 20020509
Docket: IMM-3727-00
Neutral citation: 2002 FCT 533
Ottawa, Ontario, Thursday, the 9th day of May 2002
PRESENT: The Honourable Madam Justice Dawson
B E T W E E N:
LOREDANA RITA NOVAC
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] The only issue raised in this application for judicial review is whether the visa officer acted unfairly or unreasonably in rejecting Mrs. Novac's application for permanent residence without advising her that the visa post had been unable to contact her employer in order to verify her work experience.
[2] Mrs. Novac and her husband were interviewed in connection with their application for permanent residence on November 16, 1999. Mrs. Novac was assessed in the category of Cook, in the Canadian Classification and Dictionary of Occupations ("CCDO") 6121126. The Computer Assisted Immigration Processing System notes contain the following relevant entries:
16-Nov-1999
Wife - Vocational school in wood processing. She never worked in that field. Made a 6 mths course to learn to be a cook. Has a certificate which looks really homemade but looking at her, she says that this is what she got and somehow, I believe her. [...] She says that she is working in a restaurant. Asked her for the name. Hesitant, then shows me the reference letter she has brought with her. Asking her how big is restaurant - not big. How many tables - hesitant. Asked again, now says 18. For how many people do you cook at lunch on a Saturday - no answer. What do you cook? Eggs, pizza, sandwich. What type of cooking did you learn? ... French, Romanian? Ro she says. What is typical Ro? No answer. Asked her to describe some typical dish - unable to do so.
[...]
OK will pass her as cook - makes it on points. Will have assistance from parents and brother upon landing. Funds are outstanding and I want her reference to be verified before entering sel dec
[...]
23-Dec-1999
I called the number given on the reference letter issued by S.C. Banatean-Com located in Deva. It was not/not the Banatean firm, a man answered. I repeated the number twice, he said it is correct, but this is his private number and he is living in Suceava, which is far away from Deva.
I also noticed that this reference letter says, that she worked (in past tense) at this company. Does not mention whether she is still working there or not.
G11 prepared requesting exact address, tel#, name of supervisor at her current ER and copy of carnet de munca (all pages).
15-Feb-2000
Signed
16-Feb-2000
And sent
16-Feb-2000
Recvd signed D7, reference, copy of work book.
29-Mar-2000
I have been calling the number of "Banatean Com Srl" for more than 2 weeks now, each day at different time but nobody ever answered the phone.
15-May-2000
I tried to call again: nobody answers the phone.
22-May-2000
Nobody answered again.
25-May-2000
No answer again. It is strange that applicant gave us a number where we cannot reach anyone.
Please advise on further processing. Thanks.
[...]
05-Jun-2000
I would say the reference has not panned out. To interviewing officer to decide.
16-Jun-2000
Refusing this application as appl failed to demonstrate that she has at least 1 yr of full-time experience as a cook. We verified the information she/she provided us on 2 occasions and it does not check out. Reviewed my interview notes and this fits with the behaviour she had when I questioned her. I am not satisfied that she has the experience she claimed to possess = refused
[3] In the refusal letter the visa officer wrote:
Furthermore, Subsection 11(1) of the Immigration Regulations sets out that a visa officer shall not issue a visa to an immigrant, if that immigrant fails to earn at least one unit for the factor "experience". You failed to demonstrate that you have at least one year of full-time experience, or the equivalent as a cook. Therefore, I cannot award you any units of assessment for the factor "experience".
I reached this conclusion by considering the information you provided in your application and at your interview. Specifically, I considered your employment reference with the restaurant "Banatean com srl". The information contained in your reference letter was verified and the results showed that there was no such restaurant at that telephone number. We asked you to provide us with the exact address, telephone number, name of your supervisor at your current employer and a copy of your carnet de munca (all pages) in our letter of 15 February 2000. You provided us with the requested information which we received on 29 March 2000. This information that you provided was verified several times at different hours of the day, during more than 2 weeks and no one ever answered.
As it is clear that you have submitted false or misleading documentation in support of your application, I am unable to rely upon any of the supporting documents which you have submitted. The misrepresentation that you made was of a material relevant fact (your experience as an aviation engineer), and I have therefore awarded you zero units for the factor "experience".
[4] The reference to aviation engineer is simply wrong, but I am satisfied that nothing turns on this error.
[5] On this evidentiary record, Mrs. Novac says that had she been aware of the visa officer's concerns as to the veracity of the employer's letter of reference she would have been able to provide additional information to deal with the visa officer's concern.
[6] Without in any way detracting from the principle that there is no obligation on a visa officer to provide a running account to an applicant as to the officer's concerns with specific answers the applicant may give, it is settled law that when a visa officer makes relevant inquiries, the officer is obliged to give a fair opportunity to an applicant to correct or contradict any relevant prejudicial information the visa officer receives. See, for example, Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (F.C.A.).
[7] While I agree with the submission of counsel for the Minister that Mrs. Novac should have inferred from the request to provide the name and telephone number of her supervisor that the contents of the letter of reference she had provided would be verified, fairness required that, before disposing of the application, the visa officer inform Mrs. Novac that it had not been possible to reach her employer so as to give her a fair opportunity to address the resulting concern.
[8] In so concluding, I am mindful that the Court must be careful that it not impose a level of procedural formality that, considering the volume of visa applications, would unduly encumber efficient administration. However, requiring the visa officer to notify Mrs. Novac that the visa post had not been able to contact her employer is consistent with the practice of at least some visa posts as evidenced in cases such as Liu v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1663 (T.D.).
[9] Moreover, because the visa post could not reach the employer by telephone (in the sense that no one answered the phone, as opposed to the number being non-existent or out of service) the visa officer rejected other documentary evidence including a government issued carnet de munca which detailed Mrs. Novac's work experience as a cook. I find rejection of a government document on this basis, without further verification in circumstances where no doubt was expressed as to the authenticity of the document to be unreasonable.
[10] On the Minister's behalf it was argued that Mrs. Novac had the onus of providing sufficient information to convince the visa officer of her experience, and that she failed to do so and failed to take any step to facilitate contact between the visa officer and her employer.
[11] Without doubt, the onus was on Mrs. Novac to establish her experience. However, the existence of that onus did not relieve the visa officer of the duty to act fairly.
[12] These errors warrant the Court's intervention and the application for judicial review will be allowed on the terms set out below.
[13] The Court was not asked to certify any question.
ORDER
[14] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the visa officer at the Canadian Embassy in Vienna, Austria, dated June 16, 2000 is hereby set aside.
2. The application is to be remitted for redetermination by a different visa officer against the criteria in effect at the time the application for permanent residence was received, and more particularly against the CCDO.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3727-00
STYLE OF CAUSE: Loredana Rita Novac and the Minister of Citizenship
and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 29, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE DAWSON
APPEARANCES:
Ms. Chantal Desloges FOR APPLICANT
Ms. Carol Chandran FOR RESPONDENT
SOLICITORS OF RECORD:
Green and Spiegel FOR APPLICANT
Barristers and Solicitors
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada