Federal Court Decisions

     IMM-2766-95

BETWEEN:

     MOZUMDER, LUTFUN NAHAR

     Applicant

     AND

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

DENAULT J.:

     The Applicant seeks a judicial review of the September 22, 1995 decision of visa officer George Sutherland, Consul ( Immigration), Sydney, Australia ("the Tribunal"). On September 5, 1994, the Applicant and her spouse, Mr. Reza Hasan Siddique, applied for permanent resident status in Canada. The September 5, 1994 applications identify Mrs. Mozumder as the Principal Applicant and Mr. Siddique as the Dependant Applicant.¹ Indeed, in a facsimile transmission, directed to the attention of Mr. Sutherland, signed by Barry Cartwright, Immigration Consultant, and dated August 29, 1994, Mrs. Mozumder was referred to as the Principal Applicant.² Mrs. Mozumder was the only person assessed as the applications indicated that she was the Principal Applicant. The assessment was conducted on May 24, 1995; in the result, the Applicant was awarded a total of 68 points. Consequently, Mrs. Mozumder was informed, in the September 22, 1995 letter, of her failure to meet the requirements for immigration to Canada.³

     Counsel for the Applicant submits that the visa officer erred in law when he neglected to assess the applications of both Mrs. Mozumder and Mr. Siddique. Counsel further submits that the visa officer breached the duty of fairness when he neglected to bring extrinsic evidence, specifically the "poison pen letters", to the Applicant's attention, thus depriving her of the opportunity to respond to the allegations contained therein.

     With respect to counsel's first argument, it is my finding that the duly completed and signed September 5, 1994 applications of the Applicant and her spouse stand as documentary evidence of their intention that, as between the spouses, Mrs. Mozumder ought to be regarded as the Principal Applicant. In addition, while the above-mentioned facsimile transmission unequivocally indicated that Mrs. Mozumder was the Principal Applicant, it was ambiguous as to the issue of whether each of the applicants was seeking an assessment.

     Although the facts in Nanji v. Canada (Minister of Employment & Immigration)⁴ differ somewhat from those in the instant case,⁵ I see no compelling reason to depart from the proposition developed in that case. Nanji stands for the proposition that a visa officer is under no statutory or common law duty to advise the Applicant that his or her spouse could be assessed for landing: it is the Applicant's responsibility to designate who will be assessed.⁶ In addition, Nanji stands for the proposition that, as between an immigrant and the spouse of that immigrant, subsection 8 (1) of the Immigration Regulations makes it mandatory for the visa officer to assess only one or the other.⁷ The facts in the case at bar do not warrant any deviation from that proposition.

     In my view, the "option" contemplated by subsection 8 (1) of the Immigration Regulations must be exercised by the immigrant who is the Principal Applicant prior to the visa officer's undertaking the assessment rather than after such an assessment has been conducted. In other words, the "option" afforded the Principal Applicant by the Immigration Regulations to elect which of the spouses is to be assessed must be exercised in a timely manner such that it does not hinge or depend on the result of the assessment of the Principal Applicant. In light of the foregoing, I find that this is not an appropriate case for the certified question⁸ as proposed by counsel for the Applicant.

     With respect to counsel's second argument, I find that a reasonable inference can be drawn from Mr. Sutherland's pre-interview notes⁹ to buttress the Applicant's allegation that the visa officer breached the duty of fairness. Despite the fact that Mr. Sutherland denied having given the "poison pen letters" any consideration, the information contained in his pre-interview notes could only have been gleaned from those letters as neither the application of Mrs. Mozumder nor that of her spouse referred to any of the four items which were the subject of the visa officer's pre-interview notes. I find that the "poison pen letters" were factored into Mr. Sutherland's decision.

     In keeping with the reasoning in Muliadi v. Canada (Minister of Employment and Immigration),¹⁰ the visa officer had a duty to inform the Applicant of the negative assessment and to provide her with the opportunity to contradict or correct that assessment prior to making the decision mandated by the Immigration Act. Shah v. Canada (Minister of Employment & Immigration)¹¹ further informs the present case to the extent that it articulates the proposition that the content of the duty of fairness, relative to an immigration officer's decision respecting an application for landing, exceeds the minimal standard which attaches to applications based on humanitarian and compassionate grounds. Consequently, in relying, however slightly, on the "poison pen letters" while failing to inform the Applicant of their existence, Mr. Sutherland breached the duty of fairness owed to the Applicant by depriving her of the opportunity to respond to the allegations contained therein, contrary to the audi alteram partem rule.

     Although the documentary evidence supports a finding of breach of the duty of fairness, it fails to support a finding of bad faith on the part of the visa officer. Despite counsel's submissions to the contrary, there is, in my opinion, insufficient evidence to sustain a finding of bad faith. While it is clear that the visa officer refused to comply directly with the Applicant's request for information regarding the "poison pen letters", it is equally clear that his refusal was predicated on the policies and practices governing access to information requests. Being unfamiliar with which documents in a file can and cannot be disclosed for privacy reasons, Mr. Sutherland chose to forward the Applicant's request to the department responsible for access to information requests rather than provide the Applicant with the letters she requested. He also provided the Applicant with the departmental address for access to information requests, an act which was highly consistent with the degree of care and caution he exercised relative to the treatment of such a delicate request.¹² To the extent that Mr. Sutherland was following procedural guidelines in respect of the Applicant's request for information, he cannot be said to have been acting in bad faith.

     For these reasons, the decision of visa officer George Sutherland, dated September 22, 1995, is set aside and the matter is remitted to a different visa officer for reconsideration. There are no special circumstances, pursuant to Rule 1618 of the Federal Court Act, to justify an award of costs in the instant case.

OTTAWA, March 21, 1997

     J.F.C.C.

__________________

¹      Respondent's Application Record, at pages 39 to 46.

²      Applicant's Record, at page 31.

³      Applicant's Record, at pages 222-223.

⁴      21 Imm. L. R. (2d) 60 (T.D.).

⁵      While there was no independent application by the applicant's wife in Nanji , such an application had been submitted by the husband, Mr. Siddique, in the case at bar. However, the raison d'être for Mr. Siddique's independent application is highly fact-specific. A letter, found at Tab "A" of the Respondent's Application Record, signed by counsel for Mrs. Mozumder and dated June 22, 1994, indicates that the Principal Applicant was to be changed from Mrs. Mozumder to Mr. Siddique because it was thought that the latter, a computer scientist, would likely obtain a greater number of points than his wife, thereby increasing the couple's chances of acquiring permanent resident status. Consequently, Mr. Siddique paid the requisite application fee. The couple, however, would subsequently change their mind and, as evidenced by the facsimile transmission dated August 29, 1994, would revert to their original position, whereby Mrs. Mozumder was to be considered the Principal Applicant. Even a cursory examination of their respective applications, found at pages 39 to 46 of the Respondent's Application Record, makes this fact patently obvious.

⁶      Supra , note 4 at 63.

⁷      However, if the spouses apply at the same time and both indicate that they wish to be considered as Principal Applicants, the visa officer would then be required to assess the qualifications of both applicants. See Waldman, Lorne, Immigration Law and Practice, Butterworths, 1992, at paragraph 13.261.

⁸      The certified question reads as follows:              Where requested by the Applicants, is the visa officer under a duty to assess both of them to see whether they meet the requirements under subsection 8 (1) (a) of the Regulations?
Owing to both the particulars of the factual situation and the application of Nanji in the case at bar, I find          it unnecessary and inappropriate to certify this question.

⁹      The pre-interview notes, produced as Exhibit "O" to the affidavit of Mrs. Mozumder and found at page 50 of the Applicant's Record, refer to information or clues necessarily obtained from the "poison pen letters". Those notes contain the following:
         1) Validity of work references          2) On assistance since coming to Australia          3) Previous marriage and child?          4) Record?
These pre-interview notes also indicate that "a lot of questions [were] raised regarding this case ... [and that the Applicant] should be interviewed closely."

¹⁰      [1986] 2 F.C. 205 (C.A.) at 215-216.

¹¹      29 Imm. L. R. (2d) 82 (C.A.) at 83.

¹²      Paragraphs 10 and 11 at page 4 of the Respondent's Application Record.