Date: 20030217
Docket: IMM-5404-01
Neutral citation: 2003 FCT 175
OTTAWA, ONTARIO, THIS 17th DAY OF FEBRUARY, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
AKPORWENE SONNY IDEDEVBO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[2] The Applicant, a citizen of Nigeria, came to Canada in February 1999. He made a claim for refugee status which was refused in June 2000. His subsequent claim for assessment as a Post Determination Refugee Claimant in Canada was refused in August 2001. In January 2001, the Applicant applied for permanent residence in Canada as a member of the independent class.
[3] Counsel for the Applicant sent the application for permanent residence to the Canada Immigration Regional Program Centre in Buffalo, New York, under cover of a letter dated January 10, 2001. The letter requested that the Applicant be assessed as an Advertising/ Marketing Consultant, National Occupational Classification ("NOC") 1122.0, "or any other suitable category having regard to his experience". Counsel for the Applicant included, with this letter, the formal application for permanent residence, that is the IMM8 form as well as school certificates, employment letters and personal identity documents. The box for intended occupation on the IMM8 was not completed.
[4] The application for permanent residence was initially reviewed by an agent of the Respondent identified by the initials "KP" . This individual made the following entry in the Computer Assisted Input Program System ("CAIPS") notes:
MALE, SINGLE, NIGERIA, ND2
ACCOUNTING ASSISTANT, 48 POINTS
..,: EA VALID TO 03 DEC 2001, SA VALID TO 12 NOV 2000, AFL REFUSED-NOTES IN
.. FILE
.. : MAR 2000 TO PRESENT, ACCOUNTING ASST, PD BUREAU ENGLAND, CDA
DEC 1999 TO FEB 2000, CUSTOMER SERVICE REP, BOTE GIFTS PLACE, CDA
... : 3 YEAR DEGREE, UNIV OF BENIN, NIGERIA, 1992-ASSESSED AS NON-UNIV
DIPLOMA -13 POINTS
SUBJ DOES NOT APPEAR TO MEET MINIMUM POINTS REQUIRED TO BE ASSESSED AS AN ACCOUNTING ASSISTANT-
... TO OFFICER FOR REVIEW
[5] The file was then referred to the Visa Officer who reviewed it and made her own entries in the CAIPS. Her initial entry provides as follows:
SUBJ STATES ON HIS APLN THAT HIS CURRENT OCCUPATION IS AN ACCOUNTING
ASSISTANT. HE LEFT THE "INTENDED OCCUPATION" BLANK ON HIS APLN. AS SUBJ IS CURRENTLY EMPLOYED AS AN ACCOUNTING ASSISTANT AT PD BUREAU ENGLAND IN TORONTO, IT APPEARS REASONABLE TO ASSESS SUBJ IN THIS OCCUPATION.
PRIOR TO THIS, SUBJ HAS BEEN EMPLOYED AS A CUSTOMER REP, UNEMPLOYED, AS A STUDENT, AND AS AN ADMIN MGR AT MIND VISION PROD. LTD. IN NIBERGIA [sic].
WHEN ASSESSED IN THIS OCCUPATION, SUBJ DOES NOT MEET SELECTION CRITERIA DUE TO INSUFFICIENT PTS. I AM CONVINCED THAT THE PTS RCD ACCURATELY REFLECT SUBJ'S CHANCES OF SUCCESSFULLY SETTLING IN CDA.
APLN REFUSED AND LTR SENT.
ROLF WAS DEFERRED, SO NO REFUND DUE.
[6] The Visa Officer assessed the Applicant's education and awarded him 13 units, although he had submitted a copy of a university degree from the University of Benin, Nigeria. The Visa Officer refused the application on the basis of the Applicant's lack of experience as an Accounting Assistant, the occupation for which she assessed him. The Applicant was not interviewed by the Visa Officer.
[7] The CAIPS notes and refusal letter do not refer, directly or obliquely, to an assessment of the Applicant in the requested occupation of Advertising/Marketing Consultant. The only mention of any assessment in this occupation appears in the affidavit of the Visa Officer filed in this proceeding. In paragraphs 7 to 10 of the affidavit the Visa Officer says the following:
My CAIPS notes are included in the certified tribunal record. My CAIPS notes accurately reflect my recollection of the events related therein.
I assessed the application on October 23, 2001, pursuant to subsection 8(1) of the Immigration Regulations, 1978, on the basis of the factors listed in Column I of Schedule I. I assessed the applicant's application on the basis of the application, the supporting documents that the applicant submitted and on the basis of the Immigration Act and the Immigration Regulations.
As part of my review of the application, I read the covering letter dated January19, 2001. I did not complete a formal assessment of the applicant under the occupation of "Advertising and Marketing Consultant" (1122.2, not 1122.0 as mis-cited by counsel), however, as I determined that the applicant did not have the requisite minimum 1 year full-time employment in this occupation. This, despite that one of the four duties with which the applicant had been charged while a Customer Service Manager at Black Mountain Co was possibly relevant. Thus, he would have garnered 0 units of assessment of experience, which would have constituted an automatic bar to the continuation of the processing of his application.
I did not record this assessment in my CAIPS notes or in the refusal letter dated October 23, 2001 as it is not my practice to record assessments which result in automatic bars.
[8] It is well established that the failure of a visa officer to assess a prospective immigrant in a stated intended occupation is an error of law; see Uy v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 201 (C.A.), Gaffney v. Canada (Minister of Employment and Immigration) (1991), 121 N.R. 256 (F.C.A.), Olajuwon v. Canada (Minister of Citizenship and Immigration) (1998), 150 F.T.R. 158 and Zhang v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 304. At the same time, it is clear that a prospective immigrant bears the burden of establishing that their admission into Canada is not contrary to the legislative and regulatory scheme; see section 8(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended.
[9] The Applicant, through his lawyer, asked to be assessed as an Advertising/Marketing Consultant. He submitted material supporting his educational background and work experience. Notwithstanding the Visa Officer's affidavit, it appears that she did not turn her mind to assessing the Applicant in his intended occupation. The CAIPS notes do not refer to the Applicant's request to be assessed as an Advertising and Marketing Consultant, in fact it is reasonable to infer from these notes that the Visa Officer did not see his request in the cover letter to his application. I note as well that, in her affidavit, the Visa Officer states the wrong date of the cover letter. The cover letter is dated January 10, 2001, not January 19, 2001.
[10] In Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), the Federal Court of Appeal held that when an applicant swears to the truth of certain allegations, a presumption arises that those allegations are true unless there is a valid reason to doubt their truthfulness. While Maldonado, supra, dealt with the presumption of truth in sworn testimony, in my opinion, it is also applicable to the presumption of veracity related to sworn depositions, such as affidavits, unless there is a valid reason to doubt them. Here, there is reason to doubt the affidavit of the Visa Officer notwithstanding the lack of cross-examination on that affidavit.
[11] Her affidavit is inconsistent with her CAIPS notes. The CAIPS notes were entered following her review of the file and are closer related in time to her actions than the affidavit which was executed some months later. The explanation of this inconsistency provided in her affidavit does not satisfy me that she did, in fact, assess the Applicant in his requested occupation.
[12] On the basis of the CAIPS notes, I conclude that the Visa Officer did not assess the Applicant in his stated intended occupation as identified in his letter of January 10, 2001. This is an error of law and this application for judicial review will be allowed and the matter is remitted to a different visa officer for redetermination in accordance with the law.
[13] Counsel advised that there is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter remitted for redetermination by a different visa officer in accordance with the law. There is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5404-01
STYLE OF CAUSE: AKPORWENE SONNY IDEDEVBO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, FEBRUARY 11, 2003
REASONS FOR ORDER AND
ORDER: HONOURABLE MADAM JUSTICE HENEGHAN
DATED: FEBRUARY 17, 2003
APPEARANCES:
Mr. Kingsley Jesuorobo FOR APPLICANT
Mr. Stephen Jarvis FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Jesuorobo
968 Wilson Avenue, 3rd floor
Toronto, Ontario, M3K 1E7 FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030217
Docket : IMM-5404-01
BETWEEN:
AKPORWENE SONNY IDEDEVBO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER