Date: 19980414
Docket: IMM-1617-97
BETWEEN:
AMIR ALI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This an application for judicial review of a decision of a visa officer, Mark Eichhorst who, on April 15, 1997 denied a three-year employment authorization to the applicant. This application for judicial review was heard concurrently with two other applications, specifically IMM-1607-97 and IMM-1616-97. I have written separate reasons for each application for judicial review even though many of the facts are similar.
FACTS
[2] On March 29, 1996, the applicant, a citizen and resident of Pakistan, applied for an employment authorization along with Mr. Mehboob Ali (the applicant in IMM-1616-97) and Mr. Muhammad Merchant (the applicant in IMM-1607-97). A cover letter by the applicants' solicitor stated that the three applicants were executive officers of a Pakistan plastics manufacturing company named Wazir Pakistan. Their employment authorizations were to enable them to work in Canada for a wholly-owned subsidiary of Wazir Pakistan known as Wazir Canada.
[3] The applicant and Mr. Mehboob Ali attended interviews on March 3, 1997 at the Canadian High Commission in Islamabad, Pakistan. They were interviewed by Immigration Programme Officer Vonne Solis who made certain findings including that Wazir Canada only existed on paper, that there were three Canadian directors, but no physical company and no employees and that the applicant and Mr. Amir Ali did not intend to enter Canada for a temporary period. The applicant submits that his interview only lasted ten minutes and Ms. Solis told him that she had already met his brother, Mehboob Ali, so she did not want to repeat the same questions. The applicant also stated that he may have an interest in immigrating to Canada in the future. Officer Solis concluded that the applicant was not eligible for an employment authorization.
[4] The applications of all three applicants were given to the visa officer, Mr. Eichhorst, who reviewed the evidence and found that all three applicants were ineligible for employment authorizations. On April 15, 1997, the applicant was denied entry to Canada to work on the ground that he had not demonstrated that he was seeking entry to Canada for a temporary purpose because he did not have sufficient ties to Pakistan to ensure his return.
SUBMISSIONS
1. The Applicant's Submissions
[5] The applicant submits that he was not informed of the concerns of the visa officer or Ms. Solis. He submits that he could have demonstrated his substantial ties to Pakistan. The applicant further submits that although he wanted to bring his family with him to Canada, he did not intend to immigrate to Canada. He argues that he is very close to his immediate family and merely wanted them with him during that time. The applicant also argues that although he used phrases such as "a more permanent visa" or "a visa for a more permanent residence", his intention was not to immigrate to Canada. The applicant submits that this was a denial of procedural fairness to not make him aware of these concerns. The applicant also argues that Ms. Solis relied on information obtained from the applicant's brother but she never brought this information to the applicant's attention. This extrinsic information was also allegedly part of the reason why the interview was so short and why the applicant did not have the opportunity to know the case he had to meet.
[6] The applicant cites the decision in Pangli v. Canada (M.E.I.) (1987), 4 Imm.L.R. (2d) 266 (F.C.A.) where the court said it was an error for one visa officer to interview the applicant while another visa officer renders the final decision. The applicant contends that this procedure violates the principle that one who hears must decide. In the alternative, the applicant submits that if the visa officer relied on Ms. Solis' findings, then the decision is a nullity because Ms. Solis was not a visa officer and had no authority to make this decision.
[7] The applicant further submits that this error was compounded by the visa officer's reliance on the interview notes which are allegedly ambiguous and/or incomplete and/or contradicted by documentary evidence. The applicant submits that there is no documentary evidence to support the conclusion that the applicant would not enter Canada for a temporary period. The applicant adds that Ms. Solis should not have attributed statements made by Mr. Mehboob Ali to himself because they were separately interviewed and there is no evidence that they made joint statements.
[8] The applicant also notes that Ms. Solis' Statutory Declaration states that there was the possibility of his intention to remain in Canada, but Mr. Eichhorst's Statutory Declaration states that there was the possibility that the applicant and his family would remain in Canada permanently. This is a fact which is unsupported by the evidence according to the applicant. Furthermore, the applicant submits that it is an error of law to found a decision on mere possibilities since the proper standard of proof is the balance of probabilities (Koltes v. Canada (M.C.I.) (1995), 26 Imm.L.R. (2d) 305 (F.C.T.D.)).
[9] In addition, the applicant contends that although Ms. Solis and the visa officer state in their Statutory Declarations that the applicant was ineligible for an employment authorization because there was not an established business in Canada, that is not the reason stated in the refusal letter. In the alternative, the applicant submits that there is no requirement that there be an established business in Canada. The only requirement is that a permanent and ongoing company be in existence. The applicant submits that it is erroneous to equate "permanent and ongoing" with "established" and "company" with "business". The applicant argues that a company can be permanent and ongoing without being an established business. In this case, Wazir Canada was incorporated and has $100,000 in assets but is not an established business. Therefore, the applicant submits that the visa officer fettered his discretion by adding these additional requirements.
[10] Finally, the applicant submits that Ms. Solis and the visa officer did not consider the Employment Authorization on the basis of Validation Exemption Code 99 pursuant to section 20 of the Immigration Regulations, 1978 (hereinafter Regulations). The applicant submits that this business would provide significant benefits to Canada and is in accordance with Canadian policy expressed in the North American Free Trade Agreement (NAFTA) and General Agreement on Trade in Services (GATS) Treaties.
2. The Respondent's Submissions
[11] The respondent submits that the visa officer did not use any extrinsic evidence of which the applicant was not informed. The respondent also cites the decision in Shah v. Canada (M.E.I.) (1994), 170 N.R. 238 (F.C.A) where Hugessen J.A. stated that the officer does not have to put any tentative conclusions or apparent contradictions before the applicant. Although Shah, supra, dealt with an immigration officer exercising discretion on humanitarian and compassionate grounds under section 9(1) of the Immigration Act [hereinafter Act], the respondent submits that this principle applies to discretionary decisions of visa officers as well (see Covrig v. Canada (M.C.I.) (1995), 104 F.T.R. 41).
[12] The respondent also submits that since the visa officer has no obligation to hold an oral hearing, he is entitled to appoint an investigator to meet the parties and hear and record their evidence. Furthermore, the respondent cites the decision in Alvarez v. Canada (Solicitor General), [1994] F.C.J. No. 1870 (F.C.T.D.) where Wetston J. held that an immigration officer's manager was entitled to disagree with the officer's recommendation even though the manager had not conducted the interview.
[13] The respondent submits that the decision in Pangli, supra, can be distinguished for several reasons. First, Pangli, supra, dealt with a sponsored application for landing where the law provides that certain rights arise if particular criteria are met. The case at bar deals with one who applies to enter Canada as a visitor and has no right to a particular outcome. Second, the decision in Pangli, supra, was based on the fact that neither visa officer took steps to clear up a inconsistency in the evidence. The respondent submits that there is no such inconsistency in this case. The respondent notes that further information was requested to clarify some aspects of the application. The respondent submits that both the notes and Ms. Solis' Statutory Declaration show that the applicant was provided with an opportunity to state his reasons for coming to Canada.
[14] With respect to the applicant's allegations about errors, the respondent submits that the visa officer's findings were supported by the evidence before him. The respondent notes that Ms. Solis' notes state that the applicant and his brother appear "intent and interested in permanent migration" and they "intended to start the business by re-locating to [Canada] on emp[loyment] authoriz[ations], moving their families with them and that there was the possibility of their intention to remain in Canada." The respondent submits that the applicant is merely attempting to exchange the visa officer's findings for his interpretation of the evidence.
[15] Furthermore, the respondent claims that the applicant is engaging in pure semantics by differentiating between an established business and a permanent and ongoing company.
[16] Finally, the respondent notes that the applicant provided no evidence about employment opportunities for Canadians. The respondent submits that it was the applicant's obligation to provide such evidence.
DISCUSSION
[17] Before turning to the merits of the case, I must address two preliminary issues. First, the applicant submits that the fifth indented un-numbered paragraph to the ninth such paragraph in Mr. Eichhorst's Statutory Declaration is inadmissable because he declares that it is based on his personal knowledge. It is clear that those paragraphs do not relate to Mr. Eichhorst's personal knowledge because such knowledge must have been received by reading Ms. Solis' notes. One must follow the decision in Ethier v. Canada (Royal Canadian Mounted Police (RCMP), Commissioner), [1993] 2 F.C. 659 (F.C.A.) which adopted the principled approach to hearsay set out in R. v. Khan, [1990] 2 S.C.R. 531 and R. v. Smith, [1992] 2 S.C.R. 915. The governing principles to consider are the reliability of the evidence, and its necessity. It is clear that there is no necessity to include this hearsay evidence. This evidence has already been received through the evidence of Ms. Solis. Therefore, the fifth indented un-numbered paragraph to the ninth such paragraph in Mr. Eichhorst's Statutory Declaration should be declared inadmissable.
[18] The second preliminary issue is whether Ms. Solis' notes from the interview should be admissible because they are not authenticated as her notes nor have they been declared as complete, accurate and true. In Qiu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 619 (QL) (F.C.T.D.), Pinard J. wrote:
| 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. ... held that such notes per se, without any sworn statement of their authenticity and veracity, are not properly part of the evidence. |
[19] I agree that Ms. Solis' notes from the interview are not admissible due to the absence of a sworn statement attesting to their truth and accuracy.
[20] Turning to the merits of the case, the first ground of review is that the visa officer did not inform the applicant of his concerns. The decision in Muliadi v. Canada (M.E.I.), [1986] 2 F.C. 205 (C.A.)) states that a visa officer has a duty of fairness to provide the applicant with knowledge of the officer's concerns and an opportunity to respond. However, MacKay J. noted the following in Yu v. Canada (M.E.I.) (1990), 11 Imm.L.R. (2d) 176 (F.C.T.D.) at page 187:
| In my view, there is no ground for arguing unfairness in the process merely because the visa officer at the interview of the applicant does not stress all of the concerns he may have that arise directly from the Act and Regulations that he is bound to follow in his assessment of the application. The Act and Regulations pertinent to admission are available to applicants whose task is to establish to the satisfaction of the visa officer that they meet the criteria set out, and that their admissions to Canada would not be contrary to the Act. |
MacKay J. repeated this opinion in Parmar v. Canada (M.C.I.), [1997] F.C.J. No. 1532 (F.C.T.D.).
[21] On this point, Muldoon J. noted in Asghar v. Canada (M.C.I.), [1997] F.C.J. No. 1091 (F.C.T.D.) that:
| [i]t is still not clear in what circumstances procedural fairness requires that the visa officer apprise the applicant of his concerns. [...] [O]ne may conclude that this duty does not arise merely because the visa officer has not been convinced, after weighing the evidence, that the application is well-founded. |
[22] I am satisfied that the duty to apprise the applicant of the visa officer's concerns is limited. Given that the applicant must establish that he has met certain criteria to enter Canada, the applicant should assume that the visa officer's concerns will arise directly from the Act or the Regulations. This does not mean that the visa officer should remain silent throughout the interview while the applicant states his case. The visa officer should lead the interview and attempt to draw out relevant information about the application. What it does mean is if, for example, an applicant for a visitor's visa has provided weak evidence supporting his position that he has sufficient ties to his home country to ensure his return, then the visa officer does not have to apprise the applicant of this concern. Such a concern arises directly from the Act and the Regulations. It may be preferable if the visa officer would inform the applicant of this concern but failure to do so does not violate the duty of fairness.
[23] On the other hand, the prime example of when a visa officer should inform the applicant of his concerns is when the visa officer has obtained extrinsic evidence. In that situation, the applicant should have the opportunity to disabuse the officer of any concerns that may arise from that evidence.
[24] In essence, where an interview is necessary to assess the applicant, the duty of fairness requires that the visa officer thoroughly interview the applicant on factors relevant to the claim and give the applicant an opportunity to respond to allegations or assumptions of which the applicant could not be reasonably aware.
[25] I am satisfied that the applicant has not been given the opportunity to state his case. Ms. Solis appears to have given a very short interview and assumed that the statements of Mr. Mehboob Ali would equally apply to the applicant. Curiously, unlike Mr. Mehboob Ali, the applicant was denied an employment authorization solely on the ground that he did not have sufficient ties to Pakistan. His employment authorization was not denied on the additional ground that he did not prove that Wazir Canada is a permanent, ongoing business in Canada.
[26] I believe that it would be improper to attribute Mr. Mehboob Ali's statements to the applicant in order to draw a conclusion concerning the applicant's ties to Pakistan. Yet that is what appears to have been done as is evidenced by the applicant's statement that Ms. Solis told him that she did not want to repeat questions she had asked Mr. Mehboob Ali.
[27] I am satisfied the visa officer had not satisfied the duty of fairness since there appeared to be little opportunity for the applicant to state his case. I believe the visa officer had an extensive discussion was with Mr. Mehboob Ali rather than with the applicant. Therefore, I conclude that this is an appropriate case for judicial review.
[28] With regard to the other grounds of review, some of them do not apply. Since the stated reason for rejecting the employment authorization was only due to insufficient ties to Pakistan, the parties' arguments with respect to Wazir Canada are irrelevant.
[29] One further issue to consider is whether the visa officer violated the duty of fairness by delegating the hearing of the interview to Ms. Solis. Delegation is appropriate in the circumstances of this case as long as the final decision is taken by the visa officer. However, given my finding that Ms. Solis' interview did not provide the applicant with sufficient opportunity to state his case relating to the issue of his ties to his home country, this issue is moot for this case.
[30] The third ground for review is that the visa officer erred in fact in finding that the applicant did not intend to enter Canada for a temporary period. A review of Ms. Solis' Statutory Declaration reveals that the applicant stated that "there was the possibility of his intention to remain in Canada." However, since I do not believe that this issue was fully investigated by Ms. Solis, I find that the decision is reviewable based on a violation of the duty of fairness.
CONCLUSION
[31] For the reasons stated above, I grant the applicant's application for judicial review as I am satisfied that there has been a violation of the duty of fairness.
[32] The matter is referred back for a rehearing but before representatives of the respondent other than Vonne Solis and Mark Eichhorst.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, ONTARIO
April 14, 1998