Date: 20000929
Docket: IMM-4927-99
Ottawa, Ontario, this 29th day of September, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
MUNIR H. ABDUL-KARIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of M. Lavelle (the "visa officer") dated July 31, 1999 wherein the visa officer denied the application of the applicant for permanent residence in Canada.
[2] The applicant is a citizen of Iraq and he applied for permanent residence in Canada under the intended occupation of Physicist (NOC 2111-1) in the independent category on December 21, 1997.
[3] The applicant has a Ph.D. in Theoretical Physics which he received in 1993. He has been employed as a physics researcher and lecturer for approximately 9 years.
[4] On March 15, 1999, the applicant attended an interview with the visa officer at the Canadian Embassy at Amman, Jordan.
[5] In his affidavit, the applicant deposed that he took certain materials with him to the interview including copies of correspondence with several universities regarding employment prospects and internal information about employment advertisements at universities and in the Canadian Space Program.
[6] The visa officer appeared to have some concerns about the amount of research work that the applicant was carrying out as he did not publish his research, with the exception of the new article in a Swedish Journal nor did he attend conferences on his areas of research.
[7] The visa officer assessed the applicant and awarded him a total of 74 units of assessment with one unit of assessment for the occupational factor and four units for personal suitability. The visa officer exercised her discretion pursuant to subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations") and decided that:
| Although you have been awarded more than 70 points, it is my opinion that you would not, at this time be able to successfully establish in Canada. As you have worked exclusively in a university setting, but have not published in any accredited journals or attended or participated in any conferences and have no real employment contacts in Canada it is my opinion, concurred in by a senior immigration officer in accordance with section [sic] 11(3)(b) of the Immigration Regulations, (supra) that the points awarded do not accurately reflect your ability to successfully establish in Canada. Your application is therefore refused. |
[8] The applicant has deposed that the visa officer did not apprise him that his lack of publication, lack of attendance at conferences and his lack of employment contacts could bring into issue his ability to become successfully established in Canada.
[9] The visa officer deposed that she apprised the applicant of this concern. There is no notation of this notification in the CAIPS notes.
[10] Issues
| 1. Did the visa officer err in law in exercising negative discretion by misinterpreting the requirements for a Physicist under NOC 2111 or by ignoring or failing to consider relevant facts about the applicant's work experience? |
| 2. Did the visa officer unduly fetter her discretion by ignoring relevant evidence that the applicant had the ability to successfully establish in Canada? |
| 3. Did the visa officer breach a duty of fairness owed to the applicant by failing to indicate her concern about his ability to successfully establish in Canada and by failing to provide the applicant with an opportunity to refute her opinion about his inability to successfully establish in Canada? |
Law
[1] Subsection 11(3) of the Regulations reads:
| (3) A visa officer may
. . .
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
|
|
| (3) L'agent des visas peut
. . .
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
|
|
| [2] With respect to the matter of onus, there is no doubt that the onus or burden of proof is on the applicant to show that he meets the requirements of the Immigration Act and Regulations (see subsection 8(1) of the Immigration Act). |
| [3] The next preliminary matter to be determined is "What is the standard of review of the visa officer's decision?" I believe in this case, that the standard of review is one of reasonableness simpliciter (see Baker v. Canada (Minister of Citizenship and Immigration) (1999) 174 D.L.R. (4th) 193 (S.C.C.). |
| [4] I propose to first deal with Issue 3 which is: |
| Did the visa officer breach a duty of fairness owed to the applicant by failing to indicate her concern about his ability to successfully establish in Canada and by failing to provide the applicant with an opportunity to refute her opinion about his inability to successfully establish in Canada? |
| A perusal of the visa officer's CAIPS notes show that the applicant had a total assessment of 70 units on the paper screening and the visa officer awarded the applicant 74 units of assessment under the various factors. |
| [5] The affidavits of the applicant and the visa officer are contradictory as to whether the applicant was advised by the visa officer of his concerns about his ability to become successfully established in Canada, even though he was awarded 74 units of assessment. The CAIPS notes are silent on this issue and neither deponent was cross-examined on their affidavits. |
| [6] In Ali v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1 (F.C.T.D.) Teitelbaum J. stated at paragraph 21: |
| In essence, where an interview is necessary to assess an 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. |
| [7] As indicated above, the interview increased the units of assessment above the paper assessment by four units. Thus, the visa officer's decision to deny a visa to the applicant was not based on any problem with the units of assessment. In fact, the visa officer increased the total by four units. The visa officer denied the visa solely on the basis of her authority under subsection 11(3) of the Regulations. She exercised her negative discretion under this section hence, the refusal had nothing to do with the Schedule I factors. |
| [8] Lutfy J. (as he then was) stated in Moataz v. Canada (M.C.I.) (1999) Carswell Nat. 1670 (F.C.T.D.) at paragraph 14: |
| When seventy or more units have been assessed and the reasons affecting the potential use of the negative discretion under subsection 11(3) do not arise directly from the Schedule I factors, the visa officer should inform the applicant that his or her ability to become successfully established in Canada is still in question. This will provide the applicant with an opportunity to address the difficulties and concerns perceived by the visa officer which may not be apparent to the potential immigrant. |
| I agree with this statement of the law. |
| [9] Although it is not necessary that the visa officer enter every statement made at the interview in the CAIPS notes, it would seem to me that a statement as important as the informing of the applicant of her concerns about his ability to become successfully established should be in the CAIPS notes if it was made. |
| [10] I am not satisfied that the applicant was informed of this concern, therefore I am of the opinion that a breach of procedural fairness has occurred. |
| [11] For this reason, I find that the visa officer's decision should be set aside and the matter referred for redetermination before a different visa officer and senior immigration officer. |
| [12] Neither party wished to have a serious question certified. |
| [13] Because of my determination on Issue 3, it is not necessary that I rule on Issues 1 and 2. |
| [14] IT IS ORDERED that the application be allowed and the visa officer's |
| decision be set aside and the matter referred for redetermination before a different visa officer and senior immigration officer. |