Date: 20060228
Docket: IMM-4459-05
Citation: 2006 FC 268
Ottawa, Ontario, February 28, 2006
PRESENT: The Honourable Justice de Montigny
BETWEEN:
SVETLANA VLADIMIROVNA KNIAZEVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision made by a visa officer to refuse the permanent resident Visa Application of the Applicant, Mrs. Kniazeva. She was applying as a member of the skilled worker class.
FACTS
[2] The Applicant is 35 years old and a citizen of Russia. She holds Engineer-Chemist Technologist and Candidate of Science diplomas from the Moscow Institute of Fine Chemical Technology.
[3] Mrs. Kniazeva submitted her visa application in July of 1999. This application was submitted under the Independent Category pursuant to Sections 8, 11, 11.1 and Schedule 1 of the Immigration Regulations, 1978. She indicated "chemical engineer-technologist" as her present occupation, and "engineer-technologist-researcher" as her intended occupation in Canada.
[4] In the work history section of the Visa Application, the Applicant indicated that she had worked from June 1997 to July 1998 as an engineer-technologist at "Joint Stock Company 'Plastik'" in Syzran, Russia, and from October 1993 to October 1996 as a researcher/tutor at the Moscow State Academy of Fine Chemical Technology.
[5] Among other documents attached to the Visa Application was a copy of a translated "Recommendation Letter" from Plastik's Chief Technologist, A.V. Guskov, dated May 7, 1999. The letter stated that the Applicant had worked for Plastik as an engineer in the office of the chief technologist of the casting department between the 10th of June, 1997 and the 30th of July, 1998. The Visa Application also attached copies of excerpts from the Applicant's official "work book", the English translation of which listed her employment history - including her employment at Plastik - from 1995 to 1998.
[6] In November of 2002, the Applicant and her husband were interviewed by an immigration program officer at the Canadian Embassy in Moscow. The Applicant indicated at the interview that, since 1999, she had been working at "Close Corporation 'Nova-Plast'", and provided a translated "letter of introduction" from same.
[7] The interviewer gave her 7 out of 9 points under the old Immigration Act and Regulations for English ability. The Computer Assisted Immigration Processing System (CAIPS) notes also indicated that further verification of the Applicant's employment were to be made.
[8] On February 13, 2003, another immigration officer contacted the head of Plastik's Human Resources department, Vladimir Ilyich Tarmischeisky, with a view to verifying the Applicant's employment. Mr. Tarmischeisky requested a copy of the Recommendation Letter that the Applicant had attached to her Visa Application, and the immigration officer forwarded it by fax. It is only on June 18, 2004 that Plastik's head of Human Resources, upon being contacted again by the same immigration officer, confirmed that the Applicant "had practical training at the plant while she was a student. It means she worked with intervals during the period June 1997-July 1998" (excerpt from the CAIPS notes).
[9] According to these same CAIPS notes, Mr. Tarmischeisky stated that he had signed the Applicant's "Recommendation Letter". It was in fact signed by A.V. Guskov, Plastik's Chief Technologist - a discrepancy that appears to have gone unnoticed at the Embassy.
[10] In the meantime, the Embassy made efforts to confirm the Applicant's employment with Nova-Plast. It was unable, however, to find any reference to that company name in any of the usual public sources. Moreover, the phone number indicated on the letterhead of the Letter of Introduction, provided by the Applicant at the interview, was in fact a post office fax number. As a result, a visa officer sent a letter to the Applicant on June 29, 2004, asking her to provide the Embassy with explanations/clarifications with regard to her work experience at Novo-Plast within 60 days from the date of that letter.
[11] In reply, the Applicant stated in a letter dated August 25, 2004, that Nova-Plast had ceased to exist as a legal entity in the summer of 2003, but that she was able to locate her former boss. Because he was on study leave until October, she was unable to provide confirmation of her employment at Nova-Plast, but she offered to get in touch with him when he resumes his duties if necessary.
[12] On September 8, 2004, an immigration officer (other than the one who had contacted Plastik's head of Human Resources) indicated in the CAIPS notes that he was not satisfied with the Applicant's experience as chemical engineer or chemical technologist, as her employment with Plastik was only on a part time basis while her employment with Nova-Plast could not be confirmed. On September 28, 2004, a different officer made the following CAIPS entry: [...] Applicant unable to pass under IRPA or old Act. Application refused." As of May 2005, there was no further correspondence between the Embassy and the Applicant.
[13] On May 5, 2005, the Embassy mailed the Applicant an undated letter refusing the Visa Application. The Applicant received the Refusal letter in July 2005. The relevant portion of this letter reads as follows:
In accordance with subsection 361(4) of the IRP Regulations I have evaluated your application under two sets of criteria:
A) The criteria of the Immigration Regulations, 1978, pertaining to immigrants other than members of the family class, Convention refugees seeking settlement, provincial nominees, and applicants intending to reside in the Province of Quebec, and
B) The criteria of the IRP Regulations, pertaining to federal skilled workers.
I. Assessment under the Immigration Regulations, 1978:
Paragraph 8(1)(a) of the Immigration Regulations, 1978 specifies the criteria used to assess whether applicants in your category will be able to become economically established in Canada. The criteria are: education, the education & training factor, experience, the occupational factor, arranged employment or designated occupation, the demographic factor, age, knowledge of the English and French languages, and personal suitability.
Your application was assessed based on the occupation(s) in which you requested assessment: Chemical Engineer (NOC: 2134). The table below sets out the units of assessment you received for each of the selection criteria:
|
|
NOC Code: 2134
|
|
|
|
Units assessed
|
Maximum
|
| EDUCATION
|
16
|
16
|
| EDUCATION & TRAINING FACTOR
|
17
|
18
|
| EXPERIENCE
|
00
|
8
|
| OCCUPATIONAL FACTOR
|
00
|
10
|
| ARRANGED EMPLOYMENT
|
00
|
10
|
| DEMOGRAPHIC FACTOR
|
08
|
8
|
| AGE
|
10
|
10
|
| KNOWLEDGE OF ENGLISH
|
07
|
9
|
You have not obtained the minimum number of points, currently 67, required for a permanent resident visa. You have therefore not satisfied me that you will be able to become economically established in Canada.
II. Conclusion
Subsection 11(1) of the Immigration and Refugee Protection Act states that a foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. Subsection 2(2) specifies that unless otherwise indicated, references in the Act to "this Act" include regulations made under it.
Following an examination of your application, I am not satisfied that you meet the requirements of the Act and the regulations for the reasons explained above. I am therefore refusing your application.
ISSUES
[14] The Applicant has raised the following questions :
i. Was the Applicant denied procedural fairness because more than one immigration officer was involved in the processing of her visa application?
ii. Did the visa officer err by relying on extrinsic evidence regarding the Applicant's employment at Plastik without providing the Applicant with an opportunity to respond to it?
iii. Did the visa officer err by failing to consider independent proof of the Applicant's work experience?
iv. Did the visa officer err by failing to take into account all of the Applicant's relevant work experience?
v. Did the visa officer err by failing to notify the Applicant about the different language assessment requirements under the IRPA?
vi. Did the visa officer err by failing to consider the visa application under the IRPA?
ANALYSIS
[15] Before turning to the issues raised by the Applicant, the standard of review must first be determined. This Court has consistently held that the particular expertise of visa officers dictates a deferential approach when reviewing their decisions. There is no doubt in my mind that the assessment of an Applicant for permanent residence under the Federal Skilled Worker Class is an exercise of discretion that should be given a high degree of deference. To the extent that this assessment has been done in good faith, in accordance with the principles of natural justice applicable, and without relying on irrelevant or extraneous considerations, the decision of the visa officer should be reviewed on the standard of patent unreasonableness: Postolati v. Canada (M.C.I.), 2003 FCT 251; Singh v. Canada (M.C.I.), 2003 FCT 312; Nehme v. Canada (M.C.I.), 2004 FC 64; Bellido v. Canada (M.C.I.),2005 FC 452, [2005] F.C.J. No. 572 (QL).
[16] The same cannot be said, however, when the arguments raised focused on issues of procedural fairness. It is trite law that questions of procedural fairness are not entitled to any deference on judicial review. The Supreme Court of Canada has made it clear that the duty of procedural fairness requires no assessment of the standard of review: a breach of procedural fairness will usually void, in and of itself, the decision under review.
[17] It is with those parameters in mind that I will now examine the submissions made by the parties with respect to each of the issues raised by the Applicant.
i) More than one immigration officer involved in processing the visa application
[18] The Applicant submits that, according to the CAIPS notes, at least three individuals were involved in the decision-making process. Moreover, the Applicant submits, "there is no indication that [the Visa Officer] himself made inquiries as to the Applicant's work experience". This reliance on inquiries made by other officers was, in the Applicant's submission, improper.
[19] The Applicant cites no authority for her argument that the visa officer improperly relied on inquiries and/or conclusions made by other officers in refusing the visa application. Indeed, the case law is clear that the principle of "he who hears must decide" does not apply to administrative decisions, in particular visa officer decisions. As McKay J. stated in Silion v. Canada (M.C.I.), [1999] F.C.J. No. 1390 (QL), at para. 11:
The decision is essentially an administrative one, made in the exercise of discretion by the visa officer. There is no requirement in the circumstances of this or any other case that he personally interview a visa applicant. There may be circumstances where failure to do so could constitute unfairness, but I am not persuaded that is the case here. Here the IPO did interview the applicant and reported on the results of that interview. That report was considered by the visa officer who made the decision. Staff processing and reporting on applications is a normal part of many administrative processes and it is not surprising it was here that followed. This is not a circumstance of a judicial or quasi-judicial decision by the visa officer which would attract the principle that he who hears must decide, or the reverse that he who decides must hear the applicant.
Accordingly, this argument of the Applicant has no merit and must be dismissed.
ii) Extrinsic evidence regarding the Applicant's employment at Plastik
[20] The Applicant submits that the visa officer breached the duty of fairness by considering extrinsic evidence with regards to the Applicant's employment with Plastik - i.e., the information supplied by Plastik's head of Human Resources, Mr. Tarmischeisky. The visa officer was required, in the Applicant's submission, to provide the Applicant with an opportunity to disabuse the visa officer of any concern. The Applicant contends that, in any event, the information supplied by Mr. Tarmischeisky was not a basis for concluding that she had only worked part-time at Plastik: working "with intervals", the Applicant alleges, is an ambiguous term, and could still be equivalent to full-time work. Moreover, she adds that there was no evidence that Mr. Tarmischeisky ever had any contact with the Applicant or that he was even employed by the company when the Applicant worked there. Indeed, Mr. Tarmischeisky erroneously claimed that he had signed the Applicant's letter of recommendation, a discrepancy that the visa officer admittedly failed to notice.
[21] There is a long line of cases establishing that a visa officer, when relying on extrinsic evidence, must make an Applicant aware of that evidence so that the Applicant can respond to it: see, for example, Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (F.C.A.); Shah v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1299 (F.C.A.) (QL); Fong v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.), John v. Canada (Minister of Citizenship and Immigration), 2003 FCT 257, [2003] F.C.J. No. 350 (T.D.)(QL), Cornea v. Canada (Minister of Citizenship and Immigration) (2003), 2003 FC 972, 30 Imm. L.R. (3d) 38 (F.C.T.D.), Rukmangathan v. Canada(Minister of Citizenship and Immigration), 2004 FC 284, [2004] F.C.J. No. 317 (F.C.). And there are good reasons for that requirement. Considering the importance of the decision of the visa officer for the Applicant, it is crucial that she be informed of the officer's concerns arising from extrinsic evidence so that she may have a chance to disabuse that officer of such concerns.
[22] It is worth noting that Citizenship and Immigration Canada Overseas Processing Manual states that Applicants must be provided with an opportunity to disabuse an officer of any concerns. This is found at p. 26 of the Procedures Chapter of the Manual, in the following terms:
Applicants must be allowed to bring evidence and to make an argument. This includes being provided with adequate translation/interpretation. Officers must consider all the evidence and record (in CAIPS) on which they based their assessment, and for what reasons they did not consider some of the evidence. Officers must meet this requirement in all cases, but to different degrees. The opportunity should be proportionate to the complexity of the application. With visitor visa applicants, officers should express their own concerns and record the applicant's response in the case notes. The applicant must be made aware of the "case to be met", i.e., the information known by the officer must be made available to the applicant prior to the decision being made. For example, if an officer relies on extrinsic evidence (i.e., evidence received from sources other than the applicant), they must give the applicant an opportunity to respond to such evidence.
(Emphasis added)
[23] In the case at bar, the visa officer had a clear duty to inform the Applicant that her work experience at Plastik was only being considered as part-time work and, therefore, was being disqualified as relevant work experience. This was a critical discrepancy with the information provided by the Applicant. The failure of the visa officer to inform the Applicant of his findings is even more egregious given that he did not speak to the Applicant's direct supervisor. There is no evidence that Mr. Tarmicheisky ever had any contact with the Applicant or that he was even employed by the company when the Applicant worked there. There is nothing to indicate that Mr. Tarmicheisky had any direct knowledge of the nature, scope and length of the Applicant's work experience at Plastik. Had the Applicant been informed of this conversation with Mr. Tarmischeisky, she could have referred the visa officer to her direct supervisor who could have clarified the length and nature of her duties at Plastik. This was a clear violation of the visa officer's duty of fairness. As Justice Snider recently remarked in Bellido, above, at para. 36, "...it would be an error for the Visa Officer to rely on extrinsic evidence (such as information gained through phone calls to previous employers) without making the Applicant aware of this evidence" (emphasis added).
[24] The Respondent submits that it is a moot point, in any event, because even if the Applicant had been informed of this information it would have made no difference to the final result. It is no doubt true that a breach of procedural fairness does not always call for the quashing of a decision, when that breach was not material and had no impact on the final result. But in the present circumstances, the conclusion of the visa officer may well have been different had he given the opportunity to the Applicant to dispel his belief that she had worked on a part-time basis at Plastik.
[25] The Applicant was only eight points short to qualify under the old Immigration Act. Had she received the designated points for the Occupational Factor and the minimum number of points for work experience, she would have been only one point short of the required number of points, and the visa officer could have exercised his discretion and grant the Applicant's application for permanent residence. At the very least, the proper awarding of points under the Occupational Factor would have qualified the Applicant to have her application assessed under the Independent Skilled Worker Category.
[26] As a result, I find that the Applicant was denied procedural fairness, and I am unable to conclude that this breach was of no significance at the end of the day. For that reason alone, I would be prepared to quash the decision refusing the Application for a permanent resident visa, and to refer the matter back for re-determination by a different visa officer.
iii) Independent proof of the Applicant's work experience
[27] The Applicant submits that the visa officer ignored documentary evidence of her employment at Nova-Plast, namely her letter of August 25, 2004 indicating that the company had ceased to exist as of the summer of 2003, a certified translation of the Applicant's workbook indicating that she had worked for Nova Plast from August 1, 1999 until December 15, 2002, and a reference letter which confirmed the Applicant's employment with the company, as of November 5th, 2002.
[28] It is trite law that the entirety of the evidence need not appear in a tribunal's written reasons (see, for example, Kang v. Canada (M.C.I.), 2005 FC 1128, [2005] F.C.J. No. 1400 (F.C.); Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598 (F.C.A.) (QL); Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.)). There is a presumption that all of the evidence has been considered, and the Applicant has not rebutted that presumption.
[29] In any event, the Embassy had reasons open to it for rejecting the documentation identified by the Applicant. In his affidavit, the visa officer gave cogent reasons why these pieces of evidence were not considered sufficient to establish the Applicant's employment with Nova-Plast. In light of these reasons, it was not unreasonable (and certainly not patently unreasonable) for the visa officer to reject the documentary material identified by the Applicant.
iv) Other relevant work experience
[30] The Applicant submits that, although she described her intended occupation in her Visa Application as "engineer-technologist-researcher" and indicated that she had work experience as a "researcher/tutor", there is nothing in the visa officer's notes to indicate that this work experience was ever considered.
[31] The Respondent counters that the visa officer is not expected to ferret through an Applicant's application looking for all possible occupations which an applicant might qualify for. Since "tutor" was not mentioned on her application as her intended occupation, it was not required to be assessed. Not only would the same be true for her work experience as a researcher, but she could not have been given any work experience credit as a researcher in any event since her work experience in the chemical field was either part time or not verifiable.
[32] Interestingly, both the Applicant and the Respondent cite Nehme v. Canada (M.C.I.), 2004 FC 64, [2004] F.C.J. No. 49 (F.C.) to support of their position. In that case, MacKay J. stated at para. 22:
After consideration of the written submissions, I am not persuaded that there was any breach of the duty of fairness by the visa officer. Her responsibility to consider an alternate occupational classification to that proposed by an applicant for permanent residence, recognized in Li v. Canada(Minister of Employment and Immigration), (1990) 9 Imm. L.R.(2d) 263 (F.C.T.D.), does not require assessment of the applicant's experience against the education and occupational duties of all classifications within the NOC. Rather it extends only to those either proposed as alternates by the applicant, or those which any knowledgeable observer would recognize from the application submitted. At a minimum, an alternate occupational classification must be closely related to the classification originally proposed. (Emphasis added)
[33] I believe that a "knowledgeable observer" should have recognized that "researcher" was proposed by the Applicant as an alternate occupation, despite the fact that it was not described as her intended occupation. It may be that the Applicant did not refer to her experience as a "researcher/tutor" at her interview, but it was clearly identified in the work history section of her application. Moreover, the Respondent's submission ignores the fact that the Applicant, in her visa application, described her intended occupation in Canada as "engineer-technologist-researcher" (emphasis added). Asking the visa officer to consider that occupation would be a far cry from requiring that he ferret through her application looking for all possible occupations she might qualify for.
[34] The visa officer confessed during cross-examination on his affidavit that he was not even aware that the Applicant had listed her work experience as a research fellow and tutor in her application. This was clearly a breach of the duty of procedural fairness. Since the result cannot be described as "inevitable" had the breach not occurred, it would be improper for this Court to exercise its discretion not to grant a remedy for the visa officer's breach of procedural fairness (see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at 228-9).
v) Notification of the different language assessment requirements under the IRPA
[35] When assessing the Applicant pursuant to the provisions of the Immigration Act, the visa officer awarded her 7 out of a possible 9 points for her knowledge of English. But in conducting his assessment pursuant to the provisions of IRPA, he failed to award the Applicant any points for her language proficiency. This incongruity in assessments is explained by the visa officer in his affidavit as the result of CIC policy regarding the assessment of applications under both Acts. Because the Applicant had been interviewed prior to March 2003, the visa officer was of the view that she was only required to be assessed under the Immigration Act, which did not require a formal language assessment in order for an Applicant to be awarded points for language proficiency. But under section 79(1) of the Regulations adopted under the IRPA, visa officers can no longer make subjective assessments of language proficiency; visa applicants must thereafter provide a formal language assessment.
[36] The Applicant was never asked to provide a formal language assessment. The visa officer explained that it was not necessary because she had been interviewed and assessed prior to March 2003 and would, therefore, be assessed under the old Act. It is only because the visa officer wanted to be fair that he chose to assess the Applicant, in May 2005, under the provisions of both Acts. However, he never informed the Applicant of this decision nor did he provide her with an opportunity to provide him with a formal language assessment.
[37] It is true that the onus is on the Applicant to make her case for immigration to Canada, yet this onus cannot be met if the Applicant is not told what is required of her. The Applicant submitted her application in July 1999 - three years prior to the coming into force of the new Act. She was not represented by counsel at the time she submitted her application nor was she represented by counsel at the time of her interview in November 2002. She had no way of knowing that statutory requirement for immigrating to Canada had changed. The visa officer was aware that the Applicant had never been informed of these changes. In fact, it appears from the recitation of the facts in Bellido, above, that CIC recognizes the need to inform applicants whose application was commenced under the former Act and Regulations of this new requirement; in that case, a letter was sent to the Applicant requesting her to submit a proof of her current level of official language proficiency. Indeed, the visa officer had personally done so in the past, as he testified in his affidavit.
[38] Once the visa officer had decided to assess the Applicant under both the old and the new Act, he had to inform the Applicant of the new requirements with respect to language proficiency. The language assessment would have made a difference between passing and failing. The visa officer knew there was a general procedure in place to inform transition applicants of new language assessment requirements. Prior to May 2005, he had dealt with such cases and informed them of the language assessment provisions. Finally, he knew that he was undertaking an assessment under IRPA that was not required but which he chose to conduct in order to afford the Applicant procedural fairness. In those circumstances, the visa officer's failure to conduct a thorough review of her application under the new Act and to fail to provide the Applicant with an opportunity to provide him with a language assessment is unexplainable and amounts to a clear breach of the duty of fairness owed to the Applicant.
vi) Consideration of the visa application under the IRPA
[39] As noted above, the visa officer was apparently under the impression that the visa application was only required to be assessed under the former Act, and that by assessing it under the IRPA he was simply giving the Applicant every advantage possible. However, subsection 361(4) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the IRPR) provides otherwise. Pursuant to that provision, an applicant could have become a permanent resident as a member of the federal skilled worker class by qualifying under either the former Act's regulation or the IRPR. Thus, it was incumbent on the visa officer to conduct an assessment under both.
[40] The Applicant contends that she was not really assessed under the IRPR, and that the only indication that the new rules were even considered is in the refusal letter. But this is not accurate. Having reviewed the CAIPS notes, I am of the view that the visa officer did consider both the new and the old Act. The Applicant, therefore, failed to demonstrate that her application was not assessed under the IRPR.
CONCLUSION
[41] The application for judicial review should be allowed, the Applicant having demonstrated that the visa officer breached the duty of procedural fairness in the following three ways: 1) by failing to inform the Applicant of the information supplied by Mr. Tarmischeisky, Plastik's head of Human Resources, so that the Applicant could respond to it; 2) by failing to consider the Applicant's work as a "researcher/tutor"; and 3) by failing to inform the Applicant of the different language assessment requirements under the IRPA.
[42] As a result, the visa officer's refusal of the visa application should therefore be quashed, and the Visa Application should be referred back to a different visa officer for re-determination.
JUDGMENT
THE COURT ORDERS THAT:
1- The application for judicial review is allowed;
2- The visa officer's refusal of the Visa Application is therefore quashed, and the Visa Application is referred back to a different visa officer for re-determination.
"Yves de Montigny"
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