Date: 20010515
Docket: IMM-2229-00
Neutral citation: 2001 FCT 485
Ottawa, Ontario, Tuesday the 15th day of May 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Zhi Ji Du is a 52 year old citizen of the People's Republic of China who applied for permanent residence in Canada in the assisted relative category in the intended occupation of Heavy-Duty Equipment Mechanic, CCDO 8584-112. Mr. Du brings this application for judicial review of a decision of a visa officer at the Canadian Consulate General in Hong Kong, dated March 27, 2000, whereby Mr. Du's application for permanent residence was refused.
THE FACTS
[2] The visa officer assessed Mr. Du as a Heavy-Duty Equipment Mechanic and awarded him 61 units of assessment. Mr. Du therefore received 4 units less than the number required to be prima facie entitled to a visa in the assisted relative category. The visa officer awarded Mr. Du the maximum units for occupational factor and experience, 10 units for education, 0 units for language, and 3 units for personal suitability. No reasons were provided for the assessment in the refusal letter.
[3] While Mr. Du filed an affidavit in support of his application for judicial review, the visa officer did not. The CAIPS notes are contained in the tribunal record however it is to be noted that they were entered on March 22, 2000, some three and one half months after Mr. Du and his wife were interviewed by the visa officer on December 7, 1999. There is no explanation for this delay. The tribunal record does not contain any notes or other record prepared by the visa officer during the interview.
THE ISSUES
[4] Mr. Du asserted two reviewable errors in the visa officer's assessment. First, that the visa officer erred by awarding him 10 rather than 13 units for education. Second, Mr. Du asserted that the visa officer denied him procedural fairness and was patently unreasonable in awarding Mr. Du 3 units in respect of personal suitability.
ANALYSIS
(i) Did the visa officer err by awarding Mr. Du 10 units for education?
[5] Schedule I of the Immigration Regulations, 1978, SOR/78-172 ("Regulations") provides that 13 units of assessment are to be awarded for education to applicants who have a diploma or apprenticeship certificate that requires at least one year of full-time classroom study completed at a college, trade school, or other post-secondary institution if such program requires completion of a secondary school diploma that may lead to entrance to university. If the diploma or apprenticeship program requires completion of a secondary school diploma which does not lead to entrance to university, or if it includes trade or an occupational certificate, then 10 units are to be given for education.
[6] Mr. Du asserted that his completion of middle school entitled him to proceed to university. He swore that the visa officer only asked him one question pertaining to his education, namely what his education was. He pointed to the fact that an interview was convoked for the purpose of obtaining further information about his education. As any ambiguity in his written application was not clarified by questions from the visa officer, he said the visa officer committed a reviewable error.
[7] Mr. Du's application for permanent residence records that while he attended the Guangzhou No. 10 Middle School, the diploma he received was in respect of junior middle school education. His junior middle school was completed between 1962 and 1965. Mr. Du then went on, according to his application form, to complete studies at the Guangzhou No. 2 Light Industry Vocational School in 1968, receiving a diploma in Plastics Machinery Specialty. Three of Mr. Du's 12 years of study were devoted to receiving his diploma in Plastics Machinery Specialty.
[8] The tribunal record contains no evidence that Mr. Du's diploma from junior middle school was one which might have led to entrance to university in China. The diploma issued by the Guangzhou No. 2 Light Industry Vocational School states that Mr. Du possessed the qualifications equivalent to that of a full-time secondary technical school graduate. This supports the conclusion that Mr. Du completed junior middle school and then went on to complete studies at a vocational high school.
[9] On that evidence in the tribunal record, I am not prepared to conclude that the visa officer committed any reviewable error in concluding that Mr. Du was entitled to 10 units of assessment in respect of his education.
(ii) Did the visa officer err in assessing personal suitability or otherwise breach the duty of fairness?
[10] This issue requires consideration as to the use which may be made of the visa officer's CAIPS notes in circumstances where they are not supported by an affidavit from the author of the notes.
[11] In Wang v.Canada (Minister of Employment and Immigration), [1991] 2 F.C. 165 (F.C.A.), the Federal Court of Appeal held that notes made by a visa officer during an interview were not acceptable as proof of the truth of their contents where no affidavit averring to the truth of their contents was filed. Applying Wang, in Qiu v. Canada (Minister of Citizenship and Immigration) (2000), 4 Imm. L.R. (3d) 247 (F.C.T.D.) Reed J. stated that "in the absence of an affidavit from the visa officer having personal knowledge of the events in question, the [CAIPS] notes are of dubious value as evidence of the facts recounted therein" and "[t]he respondent is not required to support her case with an affidavit, but the failure to do so will mean that the only sworn evidence before the Court as to what occurred at the interview will be that of the applicant". Reed J. also referred to the prior decision of this Court in Yan v. Canada (Minister of Citizenship and Immigration) (1999), 169 F.T.R. 139 (F.C.T.D.) where Cullen J. found in similar circumstances that an applicant's version of events must be presumed to be true where it is not contradicted by an affidavit sworn by the visa officer.
[12] 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.
[13] 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.
[14] 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] Turning to the officer's assessment of personal suitability, the CAIPS notes record the visa officer's analysis of Mr. Du's personal suitability as follows:
SUITABILITY: LESS THAN AVERAGE WITH RESPECT TO PERSONAL CHARACTERISTICS RELATED SUITABILITY; NO NOTEWORTHY DEMONSTRATION OF INITIATIVE, MOTIVATION, ADAPTABILITY AND RESOURCEFULNESS. PI HAS NOT SHOWN INITIATIVE IN UPGRADING/IMPROVING ENGLISH SKILLS, NOTWITHSTANDING EVIDENCE OF DIFFICULTY WITH ENGLISH. PI HAS NEVER TRAVELLED ABROAD. PI HAS WORKED FOR SAME EMPLOYER ALL HIS LIFE AND DOES NOT HAVE EXPERIENCE IN COMPETITIVE LABOUR MARKET. DEPENDING ON BROTHER IN LAW TO FIND A JOB. ADAPTABILITY TO CANADA APPEARS VERY LIMITED.
[16] Mr. Du swore that the following exchange took place during the interview:
Q: I am satisfied with your experience and qualifications to perform the duties of a Heavy Duty Equipment Mechanic. You are refused as you still do not have enough points to pass.
A: I do not understand why if you find I am qualified as a Heavy Duty Equipment Mechanic how I can not have enough points.
Q: You do not speak English.
A: I realize I do not speak English but I have family in Canada that can help me.
Q: This does not help you if you can not speak English. This interview is over.
[17] In response to the rationale set out in the CAIPS notes for the visa officer's assessment of personal suitability, Mr. Du swore:
9. I do not understand why working for the same employer is not good. I have advanced through the ranks at the same employer and I have not always worked in the same position. Further the visa officer did not let me respond to this.
10. I was also not told of at the interview that I do not have experience in the competitive labour market. If I was given an opportunity to respond I would have told them that I had to compete to get that job and that it is not automatic. I do not know what the officer means.
[18] In the absence of the visa officer's affidavit testifying to the contrary, Mr. Du's assertions in his affidavit must be taken as evidencing the proof of what transpired at the interview. No weight may be given to the final entry in the CAIPS notes to the effect that the reasons for refusal of the application were given and Mr. Du was given the opportunity to respond.
[19] The visa officer's concerns stemming from the applicant's work for the same employer and lack of experience in the competitive labour market, flowed from her own perception of Mr. Du's employment record. Mr. Du's affidavit establishes that he had relevant information to provide in response to those concerns. I find therefore that the visa officer erred by not raising her concerns and affording Mr. Du the opportunity to address them.
[20] The respondent argued that even if the visa officer erred in the assessment of personal suitability, Mr. Du needed to obtain four additional units of assessment in order to be prima facie entitled to a visa. It was submitted that it is "inconceivable" that Mr. Due would have obtained four additional units for personal suitability and, in that circumstance, the Court should not set aside the decision.
[21] An average assessment for personal suitability is between five and six units. I am therefore unable to conclude that it is inconceivable that the visa officer would have awarded seven units to Mr. Du.
[22] More importantly, as Evans J., as he then was, noted in Lim v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 289 (T.D.) reviewing courts have been warned not to withhold relief for a breach of the duty of fairness because it is dangerous to speculate on what might have happened if a person had been allowed to present relevant evidence and because of the importance of the values which underlie the duty of fairness. Thus a decision should be set aside where an individual has been denied a "reasonable opportunity to influence the decision-maker through the production of evidence and the making of submissions."
[23] I have therefore concluded that the application for judicial should be allowed because Mr. Du was denied that opportunity.
[24] Counsel for the respondent posed certification of the question previously certified in Chou, supra, if determinative. Counsel for the applicant did not oppose certification of the question.
[25] In the present case the unexplained delay in entering the CAIPS notes makes this case factually distinguishable from Chou. On this basis, I have determined no question should be certified.
ORDER
[26] IT IS THEREFORE ORDERED THAT:
The decision of the visa officer dated March 27, 2000 is hereby set aside and the matter is remitted for redetermination before a different visa officer.
"Eleanor R. Dawson"