Date: 20061005
Docket: IMM-7501-05
Citation: 2006 FC 1185
Toronto, Ontario, October 5, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SAYYED
MOHAMMAD BIN ABDULLAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Sayyed
Mohammad bin Abdullah applied for permanent residence in Canada as a skilled
worker. A visa officer refused his application, having awarded him an
insufficient number of points in assessing his application under the provisions
of both the Immigration and Refugee Protection Act and its predecessor,
the Immigration Act.
[2]
The
only issue in this proceeding is the officer’s assessment of Mr. bin Abdullah’s
personal suitability under the Immigration Act assessment grid.
[3]
For
the reasons that follow, I am satisfied that the officer erred in failing to
provide any timely reasons supporting her assessment. As a consequence, the
application for judicial review will be allowed.
Background
[4]
Mr.
bin Abdullah’s application for permanent residency in Canada was based
upon his employment experience as a structural engineer. Because of the timing
of his application, he was assessed under both the Immigration and Refugee
Protection Act and the Immigration Act.
[5]
Under
the Immigration Act assessment grid, Mr. bin Abdullah was awarded a
score of 63 points. He needed at least 67 points to qualify for a visa.
[6]
As
part of his application, Mr. bin Abdullah provided the visa officer with
letters of reference from several of his employers. In the course of his
interview, the officer noted that the language of each of the letters was very
similar. Mr. bin Abdullah evidently advised the officer that he himself had
drafted the letters, and then had each of his former employers sign the letters
prepared for them.
[7]
There
has never been any suggestion that the reference letters were fraudulent. That
said, the Computer Assisted Immigration Processing System (“CAIPS”) notes
indicate that the officer asked Mr. bin Abdullah to provide new letters prepared
by the signatories.
[8]
Despite
several additional requests for further reference letters, no new letters were
ever provided by Mr. bin Abdullah. Nonetheless, the officer appears to have
accepted the content of the letters at face value, awarding him 15 out of a
possible 15 points for his employment experience.
[9]
The
officer then proceeded to give Mr. bin Abdullah two out of a possible 10 points
for his personal suitability. There is no explanation in the CAIPS notes for
this assessment. However, in her affidavit, the visa officer explains that she
assessed Mr. bin Abdullah’s personal suitability in this manner because he had
written his own employment references, and only acknowledged having done so
after the similarity in the language was pointed out to him.
[10]
The
officer further explains in her affidavit that Mr. bin Abdullah did not seem to
understand the importance of the references, nor did he seem to appreciate the
impression that they could create in the minds of potential employers in Canada. In the
officer’s view, the submission of the self-composed letters reflected the
difficulties that Mr. bin Abdullah would encounter in establishing himself in
the Canadian labour market.
Analysis
[11]
At
issue in this proceeding is the sufficiency of the reasons provided by the visa
officer for her assessment of Mr. bin Abdullah’s personal suitability. A
question as to the sufficiency of reasons supporting a decision raises a
question of procedural fairness. As such, the Court is not required to embark
on a pragmatic and functional analysis in order to determine the appropriate
standard of review. Rather, the task for the Court is to determine whether the
reasons provided by the decision-maker satisfy the level of fairness required
in all of the circumstances: see Sketchley v. Canada (Attorney
General),
[2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
[12]
In
this case, the decision under review is contained in the visa officer’s CAIPS
notes. These reasons have been supplemented by the officer’s affidavit. The first
question, then, for the Court to determine is how much weight should be
accorded to the officer’s reasons for her decision as they are set out in her
affidavit.
[13]
In
my view, the reasons for the assessment provided in the officer’s affidavit
should be given little weight. In coming to this conclusion, I adopt my
comments in Alam v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 209, 2004 FC 182, at ¶
19, where, in a similar situation, I observed that:
… It is apparent from the affidavit that,
at the time that the affidavit was signed, the officer continued to have a
specific recollection of the interview with Mr. Alam. Nevertheless, the
affidavit was sworn several months after the interview, presumably at a point
where the officer was aware that her decision was being challenged. In the
circumstances, I prefer to focus my attention on the reasons expressed in the
CAIPS notes, and to give little weight to the after-the-fact explanation
provided by the officer.
To this effect, see also Kalra v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1199, 2003 FC 941.
[14]
In
this case, the officer’s affidavit was sworn some six months after the decision
under review was made. Moreover, in the intervening months, the officer had
undoubtedly been called upon to deal with many other visa applications, which
would inevitably have had a negative impact on her ability to recall her
precise thought processes in assessing Mr. bin Abdullah’s personal
suitability. This is especially so where, as here, there are no
contemporaneous notes reflecting her analysis.
[15]
This
is not a situation where the officer is merely elaborating on cursory reasons
for an assessment provided in CAIPS notes. What the officer has done with her
affidavit is to provide an entire line of reasoning that is not reflected
anywhere in her notes. In all of the circumstances, I am thus satisfied that
little weight should be attributed to the explanation for the decision provided
by the officer in her affidavit.
[16]
Turning
then to consider the CAIPS notes themselves, although the visa officer appears
to have ultimately accepted the letters at face value in assessing Mr. bin
Abdullah’s work experience, the notes do reflect the officer’s quite
understandable concern with the quality of the letters of reference that he had
produced. However, there is absolutely no discussion or consideration in the
notes as to how the nature of the letters actually provided by him related to
the matter of his personal suitability.
[17]
Indeed,
there is no discussion at all in the notes with respect to the officer’s
assessment of Mr. bin Abdullah’s personal suitability. In fact, the only
reference in the notes to his personal suitability is the score awarded to him
in this regard.
[18]
In
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, the Supreme Court of Canada observed that, in certain
circumstances, the duty of procedural fairness will require the provision of
written reasons for a decision.
[19]
The
visa officer’s decision was critical to Mr. bin Abdullah’s future. Having
regard to the factors articulated by the Supreme Court in Baker, and, in
particular, to the importance of this decision to Mr. bin Abdullah, it would,
in my view, be unfair to refuse his visa application, and not to tell him why:
see Baker, at ¶ 43.
Conclusion
[20]
For
these reasons, the application for judicial review is allowed.
Certification
[21]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different visa officer for re-determination; and
2. No serious question
of general importance is certified.
“Anne
Mactavish”
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