Toronto, Ontario, October 5, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Sayyed Mohammad bin Abdullah applied for permanent residence in Canada as a skilled worker. A visa officer refused his application, having awarded him an insufficient number of points in assessing his application under the provisions of both the Immigration and Refugee Protection Act and its predecessor, the Immigration Act.
[2] The only issue in this proceeding is the officer’s assessment of Mr. bin Abdullah’s personal suitability under the Immigration Act assessment grid.
[3] For the reasons that follow, I am satisfied that the officer erred in failing to provide any timely reasons supporting her assessment. As a consequence, the application for judicial review will be allowed.
Background
[4] Mr. bin Abdullah’s application for permanent residency in Canada was based upon his employment experience as a structural engineer. Because of the timing of his application, he was assessed under both the Immigration and Refugee Protection Act and the Immigration Act.
[5] Under the Immigration Act assessment grid, Mr. bin Abdullah was awarded a score of 63 points. He needed at least 67 points to qualify for a visa.
[6] As part of his application, Mr. bin Abdullah provided the visa officer with letters of reference from several of his employers. In the course of his interview, the officer noted that the language of each of the letters was very similar. Mr. bin Abdullah evidently advised the officer that he himself had drafted the letters, and then had each of his former employers sign the letters prepared for them.
[7] There has never been any suggestion that the reference letters were fraudulent. That said, the Computer Assisted Immigration Processing System (“CAIPS”) notes indicate that the officer asked Mr. bin Abdullah to provide new letters prepared by the signatories.
[8] Despite several additional requests for further reference letters, no new letters were ever provided by Mr. bin Abdullah. Nonetheless, the officer appears to have accepted the content of the letters at face value, awarding him 15 out of a possible 15 points for his employment experience.
[9] The officer then proceeded to give Mr. bin Abdullah two out of a possible 10 points for his personal suitability. There is no explanation in the CAIPS notes for this assessment. However, in her affidavit, the visa officer explains that she assessed Mr. bin Abdullah’s personal suitability in this manner because he had written his own employment references, and only acknowledged having done so after the similarity in the language was pointed out to him.
[10] The officer further explains in her affidavit that Mr. bin Abdullah did not seem to understand the importance of the references, nor did he seem to appreciate the impression that they could create in the minds of potential employers in Canada. In the officer’s view, the submission of the self-composed letters reflected the difficulties that Mr. bin Abdullah would encounter in establishing himself in the Canadian labour market.
Analysis
[11] At issue in this proceeding is the sufficiency of the reasons provided by the visa officer for her assessment of Mr. bin Abdullah’s personal suitability. A question as to the sufficiency of reasons supporting a decision raises a question of procedural fairness. As such, the Court is not required to embark on a pragmatic and functional analysis in order to determine the appropriate standard of review. Rather, the task for the Court is to determine whether the reasons provided by the decision-maker satisfy the level of fairness required in all of the circumstances: see Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
[12] In this case, the decision under review is contained in the visa officer’s CAIPS notes. These reasons have been supplemented by the officer’s affidavit. The first question, then, for the Court to determine is how much weight should be accorded to the officer’s reasons for her decision as they are set out in her affidavit.
[13] In my view, the reasons for the assessment provided in the officer’s affidavit should be given little weight. In coming to this conclusion, I adopt my comments in Alam v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 209, 2004 FC 182, at ¶ 19, where, in a similar situation, I observed that:
… It is apparent from the affidavit that, at the time that the affidavit was signed, the officer continued to have a specific recollection of the interview with Mr. Alam. Nevertheless, the affidavit was sworn several months after the interview, presumably at a point where the officer was aware that her decision was being challenged. In the circumstances, I prefer to focus my attention on the reasons expressed in the CAIPS notes, and to give little weight to the after-the-fact explanation provided by the officer.
To this effect, see also Kalra v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1199, 2003 FC 941.
[14] In this case, the officer’s affidavit was sworn some six months after the decision under review was made. Moreover, in the intervening months, the officer had undoubtedly been called upon to deal with many other visa applications, which would inevitably have had a negative impact on her ability to recall her precise thought processes in assessing Mr. bin Abdullah’s personal suitability. This is especially so where, as here, there are no contemporaneous notes reflecting her analysis.
[15] This is not a situation where the officer is merely elaborating on cursory reasons for an assessment provided in CAIPS notes. What the officer has done with her affidavit is to provide an entire line of reasoning that is not reflected anywhere in her notes. In all of the circumstances, I am thus satisfied that little weight should be attributed to the explanation for the decision provided by the officer in her affidavit.
[16] Turning then to consider the CAIPS notes themselves, although the visa officer appears to have ultimately accepted the letters at face value in assessing Mr. bin Abdullah’s work experience, the notes do reflect the officer’s quite understandable concern with the quality of the letters of reference that he had produced. However, there is absolutely no discussion or consideration in the notes as to how the nature of the letters actually provided by him related to the matter of his personal suitability.
[17] Indeed, there is no discussion at all in the notes with respect to the officer’s assessment of Mr. bin Abdullah’s personal suitability. In fact, the only reference in the notes to his personal suitability is the score awarded to him in this regard.
[18] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada observed that, in certain circumstances, the duty of procedural fairness will require the provision of written reasons for a decision.
[19] The visa officer’s decision was critical to Mr. bin Abdullah’s future. Having regard to the factors articulated by the Supreme Court in Baker, and, in particular, to the importance of this decision to Mr. bin Abdullah, it would, in my view, be unfair to refuse his visa application, and not to tell him why: see Baker, at ¶ 43.
Conclusion
[20] For these reasons, the application for judicial review is allowed.
Certification
[21] Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is allowed, and the matter is remitted to a different visa officer for re-determination; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7501-05
STYLE OF CAUSE: SAYYED MOHAMMAD BIN ABDULLAH v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 4, 2006
APPEARANCES:
Max Chaudhary FOR APPLICANT
John Loncar FOR RESPONDENT
SOLICITORS OF RECORD:
Barrister and Solicitor
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario