Date: 200106
Court File No.: IMM-5236-99
Neutral Citation: 2001 FCT 598
Ottawa, Ontario, this 6th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
BEHZAD NOOSHINRAVAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Facts
[1] This is an application under s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision of a visa officer, Francine Galarneau (the "Visa Officer"), dated August 1, 1999, wherein the applicant's application for permanent residence in Canada was refused.
[2] The applicant is a citizen of Iran who applied in the independent category with an intended occupation of "Furniture Designer/Wood Carver" and was assessed under the National Occupational Classification ("NOC") and the Canadian Classification Dictionary of Occupations ("CCDO").
[3] Because the applicant's original application was submitted before May 1, 1997, he fell within the transitional provisions of the Immigration Regulations, 1978, SOR/78-72 (the "Regulations"), ss. 2.03(2), which provides for a reassessment of a negative decision, rendered under the CCDO, that was still pending on May 1, 1997. The reassessment allows the applicant to be assessed under the NOC. In this case, the original Visa Officer rendered a decision refusing the applicant's application for permanent residence in Canada on April 23, 1998, having assessed the applicant under the CCDO. He was therefore granted a reassessment.
[4] The applicant attended an interview on April 15, 1999 in Damascus, Syria. The Visa Officer assessed the applicant as follows:
Shaper Operator Automatic Machine CCDO 8355-170
FACTOR UNITS
Age 10
Occupation 00
SVP 05
Experience 04
ARE 00
Demographic Factor 08
Education 10
English 02
French 00
Relatives 05
Suitability 05
TOTAL: 49
Wood Working Machine Operator NOC 9513.0
FACTOR UNITS
Age 10
Occupation 00
Education/Training 02
Experience 02
ARE 00
Demographic Factor 08
Education 10
English 02
French 00
Relatives 05
Suitability 05
TOTAL: 44
[5] The Visa Officer did not award the maximum 10 units for experience under CCDO 8355-170 or under NOC 9513.0 because the applicant had only completed two apprenticeships after secondary school, rather than the four to ten years of specific vocational preparation required under the CCDO, or the university degree or college diploma required under the NOC. The Visa Officer also determined that the applicant did not demonstrate he had experience in furniture design which the Visa Officer tested in part by asking the applicant to sketch a sample of the type of furniture the applicant designs. The Visa Officer was of the opinion that the sketch did not demonstrate that the applicant had experience in design.
[6] The applicant alleges that after the conclusion of the interview, the applicant ran into the Visa Officer in the elevator, with one other person. According to the applicant, the Visa Officer asked the applicant about what makes a good "wood carving". The applicant alleges he responded that it involves using hands and machines to make designs in wood products. Counsel for the respondent argues that this incident never took place.
Issues
[7] A number of issues arise on judicial review:
1. Can the Visa Officer's CAIPS notes be relied upon by the respondent, given that the Visa Officer has not filed an affidavit in response to the applicant's judicial review application?
2. Was the applicant denied procedural fairness when the Visa Officer allegedly continued the interview of the applicant in the elevator?
3. Did the Visa Officer err in awarding the applicant only 10 units of assessment for education?
4. If errors were committed, are they material?
Analysis
[8] In general, the standard of review to be applied to a question of law before a visa officer is correctness,[1] and the standard of review to apply to a question of fact or mixed fact and law is reasonableness simpliciter.[2] Reasonableness simpliciter was defined by Iacobucci J. in Canada (Director of Investigation and Research) v. Southam Inc.:[3]
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.
[9] The first issue raised by the applicant is whether the CAIPS notes are admissible as evidence on judicial review given that the Visa Officer who took the notes did not provide an affidavit. The applicant argues that the CAIPS notes should be struck because the applicant did not have an opportunity to cross-examine the Visa Officer.
[10] In my opinion, CAIPS notes are not part of the Tribunal Record but rather constitute reasons for the decision. This is the same approach adopted by Madam Justice Reed inChou v. Canada (Minister of Citizenship and Immigration),[4] and Mr. Justice Pelletier in Tajgardoon v. Canada (Minister of Citizenship and Immigration),[5] among others. Given this characterization, CAIPS notes should be admitted into evidence before this Court under the ordinary rules of evidence. As expressed by Mr. Justice Pelletier in Tajgardoon:[6]
But to say that the CAIPS notes are reasons does not dispose of the question of admissibility. There is no general principle that reasons are admissible by their production. Admissibility is always a question of "For what purpose?" In the hands of the applicant, the contents of the CAIPS notes tend to be used to show that the visa officer has misconducted himself in some fashion. In the hands of the respondent, the same notes are used to bolster the respondent's submission that all relevant factors were considered. Using the traditional language of the law of evidence, one would say that the applicant relies upon admissions against interest found in the notes while the respondent seeks to use self-serving statements made in an out-of-court document whose author is not available for cross-examination. The conclusion flowing from a traditional analysis of the law is that the CAIPS notes would be admissible at the instance of the applicant as admissions against interest but would not be admissible in the hands of the respondent because they are self-serving hearsay statements.
I agree with the approach taken by Mr. Justice Pelletier in Tajgardoon and find, therefore, that the CAIPS notes are admissible at the instance of the applicant as admissions against interest, but cannot be relied on by the respondent to support its claim.
[11] The applicant alleges that the visa officer breached procedural fairness by continuing to interview the applicant in the elevator after the conclusion of the official interview. The applicant states the following in his affidavit dated January 15, 2000:
I then left and ran into the visa officer in the elevator. There was another person in the elevator and the visa officer asked him to ask me about what is "wood carving". I answered that it is using hands and machine to make design in wood products.[7]
Although this evidence alone is far from strong, it is the only admissible evidence before this Court concerning this alleged incident. The Visa Officer did not submit an affidavit and therefore there is no evidence to contradict the applicant's affidavit. That being said, however, I am not satisfied that this alleged incident is in fact a continuation of the interview amounting to a breach of procedural fairness as alleged by the applicant. It is equally conceivable that the Visa Officer was simply making conversation on the elevator. Even assuming that the Visa Officer did continue the interview on the elevator, the applicant has not argued that this incident has had any effect on the Visa Officer's ultimate decision. In Canadian Cable Television Association v. American College Sports Collective of Canada, Inc.[8], the applicant argued before the Federal Court of Appeal that the principle of audi alteram partem had been violated by the receipt of evidence by a member of the Copyright Board outside the hearing process of the Board. The Court held at pages 650-651:
...that there is not a shred of evidence that any of the information received by Latraverse had any influence whatsoever on the Board's decision, that is to say, on the decision of the Board majority. Two of the Board majority appear to have been aware that he had obtained some additional information, but not of its content. There is not a single reference in the Board's decision, direct or indirect, to any extra-hearing evidence. Latraverse simply was off on a frolic of his own, which seems not to have impinged at all on the minds of the majority.
[...]
If a final word needs to be said, let it be that an inconsequential error of law, or even a number of them, which could have no effect on the outcome do not require this Court to set aside a decision under paragraph 28(1)(b) of the Federal Court Act.
[12] In my view, the same reasoning should be applied in the case at bar. A conversation on an elevator does not amount to a breach of procedural fairness unless the applicant can demonstrate that the conversation was in fact a continuation of the interview and had an adverse effect on the Visa Officer's decision. The applicant has not shown that the Visa Officer relied on the information allegedly obtained in the elevator, nor that it had any influence over the decision of the Visa Officer, and therefore this alleged incident is inconsequential.
[13] The next issue raised by the applicant is whether the Visa Officer reasonably assessed his education in awarding 10 units for education. Education must be assessed in accordance with Schedule 1 of the Regulations. The Visa Officer reasoned in her refusal letter that the applicant should only receive 10 units for education because:
you do not hold a diploma from a vocational school, but only a confirmation of apprenticeship following your secondary school.
The applicant completed secondary school, and subsequently completed two apprenticeship programs, one of which required one year of study. The Visa Officer awarded 10 units to the applicant because he does "not hold a diploma from vocational school, but only a confirmation of apprenticeship following your secondary school." In my opinion, the Visa Officer did not assess the applicant's education in accordance with the Regulations. Subsection 1(c) of the education factor of Schedule1of the Regulations states the following:
(c) where a diploma or apprenticeship certificate that requires at least one year of full-time classroom study has been completed at a college, trade school or other post secondary institution, the greater number of the following applicable units:
(i) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph b(i) or (iii) as a condition of admission, ten units, and
(ii) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph b(ii) as a condition of admission, thirteen units; [Emphasis added]
c) lorsqu'un diplôme ou un certificat d'apprentissage d'un collège, d'une école de métiers ou de tout autre établissement post-secondaire, qui comporte au moins un an d'études à temps plein en salle de cours, a été obtenu, le plus élevé des nombres de points applicables suivants :
(i) si le programme d'études menant à un tel diplôme ou certificat exige un diplôme d'études secondaires visé aux sous-alinéas b)(i) ou (iii), 10 points,
(ii) si le programme d'études menant à un tel diplôme ou certificat exige un diplôme d'études secondaires visé au sous-alinéa b)(ii), 13 points; [je souligne]
[14] The Visa Officer erred in basing her assessment of the applicant's education on the fact that he has an apprenticeship certificate rather than a diploma. Subsection 1(c) of the education factor states that the visa officer must assess an applicant who has a diploma or an apprenticeship certificate that requires at least one year of full-time classroom study, in accordance with the Regulations. The Visa Officer erroneous dismissed the applicant's apprenticeship certificate at the outset, contrary to the Regulations, simply because the applicant does not have a diploma.
[15] Once again the question becomes whether this error is material. Even if the applicant had been awarded 13 units of assessment for the education factor, the most the applicant could have received is 52 units of assessment. The applicant remains well below the required 70 units of assessment. In my view, the error of the Visa Officer in assessing the applicant's education is not material given that it would not change the outcome of the Visa Officer's ultimate decision.
[16] The application for judicial review will be dismissed.
[17] The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge
[1] Pushpanathan v. Canada (Minister of Citizenship & Immigration), [1998] 1 S.C.R. 982.
[2] Baker v. Canada, [1999] 2 S.C.R. 817.
[3] [1997] 1 S.C.R. 748 at 776-777.
[4] [2000] F.C.J. No. 314 (QL) (TD) at para.13.
[5] [2000] F.C.J. No. 1450 (QL) (TD) at para. 17.
[6] Ibid at para. 18.
[7] Applicant's Application Record, Tab 2, page 9, para. 5.
[8] [1991] 3 F.C. 626 (F.C.A.).