Date: 20030801
Docket: IMM-4197-02
Citation: 2003 FC 941
OTTAWA, ONTARIO, THIS 1st DAY OF AUGUST 2003
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
RAVI KIRON KALRA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the decision of Margaret Gass (the "visa officer"), dated June 27, 2002, wherein she denied the applicant's application for permanent residence in Canada.
[2] The applicant is a citizen of India. He submitted an application for permanent residence to Canada under the Independent category and requested assessment as a Marine and Naval Engineer (National Occupation Classification ("NOC") 2148.5) and as a Foreman, Air Conditioning and Refrigeration Mechanic (NOC 7216.0). The applicant's wife and son were included in the application as dependants.
[3] The application was considered pursuant to the Immigration Regulations, 1978, SOR/78-172 (the "Regulations"). The applicant was not scheduled for an interview. After assessing the applicant's application, the visa officer awarded him the following points:
Age 08
Occupational Factor 00
Education and Training 17
Experience 00
Arranged Employment 00
Demographic Factor 08
Education 15
English 09
French 00
Bonus (Close Relative in Canada) 00
Personal Suitability 00
---
Total 57
[4] Since the applicant lacked the required 70 points under the Regulations, the visa officer refused to grant him a visa. The visa officer also found that the applicant had not demonstrated that he had at least one year of full-time work experience as a Marine Engineer, and awarded him no points for experience. Similarly, she found that the applicant had not performed a substantial number of duties of a Marine Engineer,as described in the NOC, and awarded him no points under the occupational factor. The visa officer further found that the applicant did not have experience performing some or a substantial number of the main duties of a Foreman, Air Conditioning and Refrigeration Mechanic. Because subsections 11(1) and (2) of the Regulations require at least one point under each of the experience and occupational factors, the application was automatically refused.
[5] The applicant now seeks judicial review of this decision on the following grounds. The applicant states that the visa officer failed to provide reasons for allotting no units of experience under the occupation of Foreman, Air Conditioning and Refrigeration Mechanic. The applicant argues that the visa officer did not go beyond his job title of surveyor of ships and failed to determine the active duties performed by him. The applicant contends that he fulfilled the following duties: maintenance of M/E, auxiliaries, steering system, air conditioning mechanical blowers, refrigeration plant, all cranes, winches, windless, mooring winehes [sic], cargo oil pumps, boilers, and electrical and hydraulic systems pertaining thereto. Those are relevant to the intended occupation of Foreman, Air Conditioning and Refrigeration Mechanic. Therefore, the applicant submits that an interview should have at least been granted before denying his application for permanent residence in Canada.
Analysis
[6] Whether the issues are framed as a breach of the rules of procedural fairness or the failure to consider relevant factors (which qualifies as an error of law), the grounds raised by the applicant principally flow from the fact that the reasons given by the visa officer would be inadequate in the circumstances.
[7] The visa officer gives the following reasons in her decision:
You do not meet Canada's Immigration selection criteria and therefore do not qualify for immigration to Canada. Any additional units of assessment which may be awarded for the personal suitability factor at an interview would not affect this result. In view of my decision to refuse your application, you will not be called for a personal interview with a visa officer. As explained above, applicants must obtain at least one unit of assessment in each of the factors, occupational factor and experience. You have not demonstrated that you have at least one year of full-time work experience in your intended occupation and thus, receive 0 units of assessment for the experience factor. Subsection 11(1) of the Immigration Regulations, states that an immigrant visa shall not be awarded to an immigrant unless at least one until of assessment is awarded for the experience factor.
You do not meet Canada's Immigration Selection criteria and therefore do not qualify for immigration to Canada. Any additional units of assessment which may be awarded for the personal suitability factor at an interview would not affect this result. In view of my decision to refuse your application, you will not be called for a personal interview with a visa officer. As explained above, applicants must obtain at least one unit of assessment in each of the factors, occupational factor and experience. After a careful review of the information contained in you application, I am not satisfied that you perform a substantial number of duties as described in NOC for your intended occupation. Subsection 11(2) of the Immigration Regulations, states that an immigrant visa shall not be awarded to an immigrant who is not awarded any units of assessment for the occupational factor.
You asked to be assessed as well as a foreman, air conditioning and refrigeration mechanic NOC 7216. I am not satisfied you have experience performing some or a substantial number of the main duties under this occupation and for the reasons discussed above, you application is refused.
[8] A request was made pursuant to rule 9 of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22, to obtain the reasons for the decision. The Canadian High Commission responded to the request by sending a copy of the CAIPS notes and the letter of refusal and noted that the former formed part of the reasons for the decision.
[9] In the case at bar, the CAIPS notes were very short and merely contained the following information:
MARINE ENGINEER 21485
REFRIGERATOR AND AIR CONDITIONING MECHANIC FOREMAN NOC 7216
SUBJECT HOLDS AN MARINE ENGINEERING CERTIFICATE FROM THE MARINE ENG COLLEGE OF THE DIRECTORATE OF MARINE ENGINEERING TRAINING. HIS EXPERIENCE HAS BEEN ON BOARD MERCHANT VESSELS AND THIS APPEARS TO COME UNDER ANOTHER OCCUPATION THAN THE ONE SPECIFIED. HIS EXPERIENCE AS SENIOR SURVEYOR (OF SHIPS) DOES NOT ENCOMPASS THE NOC DUTIES. NEITHER DOES IT ENCOMPASS THE DUTIES REQUIRED FOR THE FOREMAN OCCUPATION. SPECIFIED.
REFUSAL LETTER TO BE SENT.
ND2 REFUSAL AFTER PPS
OPTION 2 AND 3 B. KAM ALSO ADD : YOU ASKED TO BE ASSESSED AS WELL AS A FOREMAN, AIRCONDITIONING AND REFRIGERATION MECHANIC NOC 7216. I AM NOT SATISFIED YOU HAVE EXPERIENCE PERFORMING SOME OR A SUBSTANTIAL NUMBER OF THE MAIN DUTIES UNDER THIS OCCUPATION AND FOR THE REASONS DISCUSSED ABOVE, YOUR APPLICATION IS REFUSED....
[10] The visa officer gives essentially the same reasons concerning the performance of a substantial number of duties described in the NOC as those provided in the refusal letter. Unfortunately, if I read the letter and the CAIPS notes together, I cannot find anywhere the underlying rational which led the visa officer to reach her decision. However, the respondent contends that the affidavit sworn by the visa officer and filed for the purpose of the present judicial review exposes the rational of her decision and is sufficient to meet the duty to give reasons for her decision as discussed in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[11] In the affidavit which followed the CAIPS notes, the visa officer expands upon her reasoning in the following manner:
4. In assessing the applicant's education, I did not consider his diploma at the Marine Engineering College, Calcutta, certified by Directorate of Marine Engineering Training, to be the bachelor's degree requisite for marine engineers. He did not submit a diploma designating that he held a Bachelors degree in Engineering. In addition, I also considered that a portion of his training for the diploma between 1973 and 1976 was a practical apprenticeship at the Calcutta Port Authority, where he received training in : machine shop, pattern shop, electrical workshop, blacksmith shop, boiler shop, diesel shop, fitting shop, marine repairs (on board). The information submitted states he received the practical training (excluding the period he attended Theoretical Classes in Marine Engineering College). I considered, in the absence of documentation to the contrary, that the subject held a college diploma equivalent and not a bachelors degree.
5. In assessing the applicant's application under N.O.C. 2148 (other professional engineers of the National Occupational Classification (the "NOC"), I considered the actual duties that the applicant claimed to have performed. I did not consider that they amounted to one year of full-time experience as follows:
"Marine and naval engineers design and develop marine vessels and floating structures, and associated marine power plants, propulsion systems and related systems and equipment and oversee the building, maintenance and repair of vessels and marine systems."
[...]
7. In assessing the applicant's application under N.O.C. 7216 (foreman of air conditioning / refrigeration mechanics) of NOC, I went beyond the titles that the applicant worked under over the years and focused [sic] on the actual duties, which the applicant claimed to have performed. Thus, I took note of the fact that his duties as a ship surveyor, for instance, did not encompass at least some of the main duties listed in N.O.C. 7216. This is true even after the applicant's ship surveyor duties had been broken down into their constituent elements. [...]
[...]
11. The real context of the applicant's onboard engineering experience, in fact, is that of an engineer officer - water transport - which is clearly spelled out under another NOC code and involves the operation and maintenance of all ships systems, including engines etc.
12. Similar concerns arise in respect of the context of the applicant's surveying and in-charge experience with his latest employer, which centres around inspecting / surveying as an independent third party for the purposes of surveys / audits / classification.
[...]
14. I note that the Applicant in his argument is attempting to expand or replace the actual occupation in which he asked to be assessed- that of Foreperson air conditioning and refrigeration mechanics,- not supervisor mechanic trades which could include another type of mechanic- i.e. FOREMAN, Marine service-engine repair. The Applicant only asked to be assessed in the Foreperson air conditioning and refrigeration mechanics occupation of the N.O.C. 7216 occupation description and not any other occupation listed in the description.
[...]
16. The Applicant asserts that he had some' relevant experience' in the other occupations listed in N.O.C. 7216.0. However, experience in one occupation does not mean a person is experienced in another occupation even granting that there may be some overlap. My duty was to assess whether the Applicant had performed some of the main duties of the occupation he selected as they are described in the N.O.C. description.
[12] In my opinion, this is not reflected in the CAIPS notes. None of this information is found in the CAIPS notes.
[13] In Bonilla v. Canada (Minister of Citizenship and Immigration) (2001), 12 Imm. L.R. (3d) 83 at paragraph 29 (F.C.T.D.) O'Keefe J. considered that the letter to the applicant and the officer's notes comprised the visa officer's reasons for her decision and those documents met the requirements to provide reasons. The Court in Tajgardoon v. Canada (Minister of Citizenship and Immigration) (T.D.), [2001] 1 F.C. 591 at 602-04 stated that:
Furthermore, if draft reasons are not part of the record, it is unlikely that CAIPS notes are part of the record either. They are not part of the body of information before the visa officer when he/she makes his/her decision in the same sense as the applicant's record of education or employment is. The CAIPS notes are an internally generated document and are not a document put before the visa officer by the parties. As Reed J. pointed out in Chou, supra, the CAIPS notes are more in the nature of reasons for the decision, notwithstanding the fact that in visa cases, the applicant will have received a letter containing the reasons for the refusal of his/her application.
But to say that the CAIPS notes are reasons does not dispose of the question of admissibility. There is no general principle that reasons are admissible by their production. Admissibility is always a question of "For what purpose?" In the hands of the applicant, the contents of the CAIPS notes tend to be used to show that the visa officer has misconducted himself in some fashion. In the hands of the respondent, the same notes are used to bolster the respondent's submission that all relevant factors were considered. [...] whose author is not available for cross-examination. The conclusion flowing from a traditional analysis of the law is that the CAIPS notes would be admissible at the instance of the applicant as admissions against interest but would not be admissible in the hands of the respondent because they are self-serving hearsay statements.
...
However, the respondent is not in a position to rely on the CAIPS notes as proof of their contents because this is classic hearsay. They are not admissible as business records in the absence of evidence [page604] which establishes that they satisfy the requirements of admissibility of business records. In order to make the CAIPS notes evidence of the facts to which they refer, they must be adopted as the evidence of the visa officer in an affidavit.
(My emphasis)
[14] Furthermore, the Court in Du v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 64 (F.C.T.D.), states:
... I find the principles set out in this jurisprudence persuasive and adopt them. It follows that while the CAIPS notes are admissible as part of the record, evidencing the reasons for the decision under review, the CAIPS notes do not prove the underlying facts which they record and on which they rely.
Moreover, in this case the CAIPS notes were certainly not made contemporaneously with the interview they purport to record. Any inference of reliability must depend upon the promptness with which the notes are entered into the CAIPS system. The unexplained delay in entering the notes and the absence of any evidence as to the provenance of the precise content of the notes leads me to conclude that the notes here cannot be viewed to be reliable.
It follows that I have not been persuaded that the notes satisfy the requirements of necessity and reliability under the principled approach to hearsay evidence, nor that they can be considered to be a declaration made during the course of duty, nor that an evidentiary basis has been provided to establish that the notes meet the requirements of admissibility for business records.
[15] In my view, the CAIPS notes can constitute the reasons for the visa officer's decision but not the affidavit. The affidavit should only be considered as a means to enter into evidence the CAIPS notes and to elaborate on the information found in the CAIPS notes but not as a late explanation for the decision. The affidavit is usually filed for the purpose of the judicial review and is filed many months or a year after the decision. It is usually based on the CAIPS notes which should reflect the reasoning followed by the visa officer to reject or allow the application. As pointed out in Idedevbo v. Canada (Minister of Citizenship and Immigration), 2003 FCT 175, [2003] F.C.J. No. 255, if the visa officer's affidavit is inconsistent with the CAIPS notes, the latter should be considered more accurate considering that they were entered following the review of the file and were closer in time to the actions than the former. In the case at bar, if I compare the visa officer's CAIPS notes and affidavit, it is obvious that the latter incorporates a lot more information than the former which raises the question: upon what documents, information or notes did the visa officer base her affidavit, which was executed a little less than a year after the decision?
[16] On this point, the Court stated in Sehgal v. Canada (Minister of Citizenship and Immigration), 2001 FCT 212, [2001] F.C.J. No. 385, at paragraph 7 that:
... I prefer the visa officer's assessment of what transpired between she and the applicant at interview in this regard to that of the applicant. The visa officer's recollection reflected in her affidavit is confirmed by her CAIPS notes made on the date of interview. By contrast, the applicant's affidavit was sworn some months after the interview took place and reflects no indication that it was made on the basis of notes prepared on the date of the interview.
(My emphasis)
[17] Furthermore, in Mohammad v. Canada (Minister of Citizenship and Immigration) (1997), 131 F.T.R. 52 ("Mohammad")he Court set aside the visa officer's decision for his failure to disclose, with reasons, his refusal to assess the applicant's intended occupation as Laundry Machine Mechanic. The Court also noted his failure to question the applicant concerning the occupation of Mechanical Engineering Technician, the one chosen by the visa officer himself for his decision. Lutfy J. at paragraph 5 stated that:
It is not sufficient for the visa officer to disclose his decision and reasons for excluding the applicant from his intended occupation in his affidavit in the judicial review proceeding. (See Reddy v. Canada (Minister of Citizenship and Immigration),[1995] F.C.J. No. 1124 (Q.L.) at paragraph 5.)
[18] In Reddy, supra, Reed J. warned against relying on ex post facto affidavits unsupported by documentation which has been prepared contemporaneously with the assessment. She also noted that "[a]t the same time ... I cannot conclude that the text of the decision letter demonstrates that the visa officer did not address his mind to the real issue" (at paragraph 5). In the case at bar, as pointed out previously, I find that there was a failure to prepare adequate CAIPS notes by the visa officer, which normally constitute the contemporaneous documentation prepared at the assessment. Furthermore, in reading the CAIPS notes and the decision letter, it appears that the visa officer did not go beyond the applicant's job of surveyor of ships and direct a specific line of questions to his actual work experience in the air conditioning field, broken down into its constituent elements for the purpose of making an appropriate assessment of his adaptability or transferability to the intended occupation of Foreman, Air Conditioning and Refrigeration Mechanic.
[19] Counsel for the respondent further submits that Mohammad, supra, can be distinguished on the basis that this case was with respect to a breach to the duty of fairness and that no specific statement was made by the Court regarding the "reliance" on a visa officer's affidavit. This characterization appears improper. First, the use the Court will make of a visa officer's affidavit depends on the factors developed in the case law that I have already discussed (see paragraphs 13 to 15). Second, there is indeed an alleged breach of procedural fairness in the present case considering the reproach made that at least an interview should have been held.
[20] The respondent also relies on Xiong v. Canada (Minister of Citizenship and Immigration), 2002 FCT 430, [2002] F.C.J. No. 546. In that case, Layden-Stevenson J. states that "[t]he affidavit of the visa officer sets out, in detail, the reasons for her decision. It is the uncontradicted evidence of the visa officer that she explained her concerns to the applicant at the conclusion of the interview, informed him of the refusal and provided him with the opportunity to ask questions, rebut or provide additional information" (my emphasis). I personally find that this case is distinguishable. In the case at bar, nowhere in the CAIPS notes or the letter of refusal does the visa officer mention that she communicated her concerns to the applicant. Moreover, there was no interview here.
[21] The affidavit is not being used to substantiate what was said at an interview or complement the CAIPS notes which express the concerns of the visa officer. The refusal letter was dated June 27, 2002 and the affidavit was sworn May 19, 2003. The CAIPS notes were entered into the system on June 26, 2002, the day before her decision. Strangely, the visa officer specifies in her affidavit that the CAIPS notes were "made both during and after the interview" (see para. 2 of the affidavit of Margaret Gass sworn on May 19, 2003) although the applicant was "not [...] called for a personal interview with a visa officer" (see visa officer's decision). Indeed, if the visa officer's affidavit is to be considered, it appears that she was obviously well aware that the applicant's experience was better suited to another NOC occupation. She went so far as to identify, in her affidavit, the occupation of an "engineer officer - water transport", which, she states, "involves the operation and maintenance of all ships systems, including engines, etc." This raises a procedural fairness issue: was there an obligation on the visa officer to ask the applicant whether he also wished to be assessed in this alternative occupation?
[22] However, in view of the conclusion I have reached concerning the absence of adequate reasons, it is unnecessary that an answer be given to this last question. In the case at bar, the visa officer's letter mentions which provisions of the Regulations she relied upon in reaching her decision, but does not provide a reasonable rational permitting one to understand why the applicant does not meet the requirements set out therein in view of the stated duties of the applicant. The visa officer does, as the applicant suggests, "only repeat the fact that the applicant has not borne the title of Foreman, air conditioning and refrigeration, and that he is a surveyor of ships", and states that she is not satisfied that the applicant has experience performing some or a substantial number of the duties associated with the NOC occupation without identity which ones. Based on the above reasons, I do not find that the visa officer's refusal letter and the CAIPS notes considered together constitute sufficient reasons to satisfy the requirements of procedural fairness and fulfill the duty to give reasons. This fatal defect warrants the Court's intervention. Therefore, I will not examine the other issues raised by the parties.
Conclusion
[23] For these reasons, this application for judicial review will be allowed, the decision under review will be set aside, and the applicant's application for permanent residence in Canada will be referred back to the respondent for re-determination in accordance with the law by a different visa officer. Concerning the request for party party costs made by the applicant, Rule 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22, as amended, provides that "[n]o costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders." In the case at bar, I am not satisfied that there are special reasons which would justify the award of costs on a party party basis. Therefore, I will reject the request for costs made by the applicant. As indicated at the conclusion of the oral hearing, the parties may file submissions in writing regarding any question of serious general importance which ought to be certified for appeal. The Court requests such submissions within 10 days, and reply within seven days thereafter. An order will issue following the consideration of any such submissions.
__________________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4197-02
STYLE OF CAUSE: RAVI KIRON KALRA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 8, 2003
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
APPEARANCES:
MR. M. MAX CHAUDHARY FOR THE APPLICANT
MR. MARTIN ANDERSON FOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. M. MAX CHAUDHARY FOR THE APPLICANT
NORTH YORK, ONTARIO
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA