Federal Court Decisions

     IMM-2715-96

BETWEEN:

     QIU Yu Hai

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD J.

         The applicant seeks judicial review of the decision of visa officer Helen Lavoie of the Islamabad, Pakistan Canadian High Commission, dated May 14, 1996, which denied the applicant's application for a landed immigrant visa in the "independent" class pursuant to section 8 of the Immigration Regulations, 1978 (the "Regulations").

         At the hearing before me, I clearly indicated that I agreed with the applicant's preliminary objection on the admissibility of the visa officer's notes, given the circumstances. In my view, counsel for the applicant rightly pointed out that the Court of Appeal in Wang v. M.E.I.¹ held that such notes per se, without any sworn statement of their authenticity and veracity, are not properly part of the evidence. In a related appeal, Fung v. M.E.I.², the Court made the following comments at page 265:

As in other appeals heard serially with this, the visa officer's interview notes were introduced in evidence, exhibited to the affidavit of another immigration officer unable to attest to their veracity. The learned trial judge concluded:

"This application for judicial review raises two issues: is a visa officer required to go behind job occupation titles and consider the actual experience of the applicant as it is relevant to his intended occupation, and if so, was such an assessment carried out in respect of this applicant? . . .

"As I held in Hajariwala v. Minister of Employment and Immigration [(1988), 23 F.T.R. 241; 6 Imm.L.R. (2d) 222] the duty of a visa officer in this situation is to make an assessment of the applicant's work experience to evaluate it with respect to that applicant's intended occupation and any others which the applicant claims are included. In my opinion, however, the only reasonable interpretation of the interview notes and the applicant's account of the interview is that the visa officer did so in this case."

The evidentiary value of interview notes put in evidence in the fashion of these has been discounted in reasons for judgment in other appeals heard serially with this [Wang (L.) v. M.E.I., Court file A-1136-88, Gaffney v. M.E.I., Court file A-253-89].

Those notes aside, the conclusion reached by the learned trial judge was open to him on the basis of the appellant's affidavit alone. It was not a patently unreasonable interpretation of the evidence properly before him.

         In the present case, the respondent did not produce any affidavit evidence by the visa officer outlining the conduct of the interview with the applicant. Thus, following the above authorities, the notes taken by the visa officer in the course of that interview cannot be considered evidence of what transpired at the interview.

         The visa officer's notes aside, it appears on the basis of the rest of the evidence that the visa officer did not consider all of the applicant's experience in order to determine whether it was transferable to his intended occupation, thus failing to complete the assessment that was required of her by the Regulations (see Hajariwala v. M.E.I., [1989] 2 F.C. 79).

         It also appears that the visa officer committed a breach of her duty of fairness in the manner in which she conducted the interview in that she did not apprise the applicant of her concerns over his experience in relation to his intended occupations. The only evidence before the Court that speaks to this issue is the applicant's own affidavit. In this affidavit the applicant states that the visa officer limited her inquiry into his former employment to questions regarding the seating and the number of employees in the restaurants in which he had been employed. There is no evidence before the Court to allow me to conclude that the visa officer asked any questions regarding the applicant's training or his duties and responsibilities as a cook. There is no evidence on the record that the visa officer expressed any concerns whatever in relation to the applicant's qualifications for his intended occupations. The applicant had produced an outline of his experience and training with his application as well as references from his various employers (see Fong v. M.E.I., [1990] 3 F.C. 705).

         These errors made by the visa officer are sufficient to warrant the intervention of this Court, without the necessity of dealing with the applicant's further argument concerning the assessment of his personal suitability by the visa officer.

         Consequently, the application is allowed, the impugned decision is set aside, and the matter is referred back to a different visa officer for redetermination in a manner not inconsistent with these Reasons.

         The case raises no serious question of general importance within the meaning of section 83 of the Immigration Act.

OTTAWA, Ontario

May 16, 1997

                                

                                         JUDGE

__________________

     ¹      [1991] 2 F.C. 165 at 170 (F.C.A.).

     ²      (1991), 121 N.R. 263.