Date: 19980414
Docket: IMM-1607-97
BETWEEN:
MUHAMMAD RAZA MERCHANT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of a decision of a visa officer, Mark Eichhorst who, April 15, 1997 denied a three-year employment authorization to the applicant. This application for judicial review was heard concurrently with two other applications, specifically IMM-1616-97 and IMM-1617-97. I have written separate reasons for each application for judicial review even though many of the facts are similar.
FACTS
[2] On March 29, 1996, the applicant applied for an employment authorization along with Mr. Amir Ali (the applicant in IMM-1617-97) and Mr. Mehboob Ali (the applicant in IMM-1616-97). A cover letter by the applicants' solicitor stated that the three applicants were executive officers of a Pakistan company named Wazir Pakistan. Their employment authorizations were to enable them to work in Canada for a wholly-owned subsidiary of Wazir Pakistan known as Wazir Canada.
[3] The applicants were invited to attend interviews on March 3, 1997 at the Canadian High Commission in Islamabad, Pakistan, but only Messrs. Amir Ali and Mehboob Ali attended. They were interviewed by Immigration Programme Officer Vonne Solis who made certain findings including that Wazir Canada only existed on paper, that there were three Canadian directors, but no physical company and no employees and that Messrs. Amir Ali and Mehboob Ali did not intend to enter Canada for a temporary period. Officer Solis concluded that they were not eligible for employment authorizations.
[4] The applications of all three applicants were given to the visa officer, Mr. Eichhorst, who reviewed the evidence and found that all three applicants were ineligible for employment authorizations. The applicant was denied on the ground that he had not demonstrated that he was seeking entry to Canada for a temporary purpose because of his insufficient ties to Pakistan.
SUBMISSIONS
1. The Applicant's Submissions
[5] The applicant submits that the visa officer violated the duty of fairness owed to the applicant because he only heard the other applicants' evidence through Officer Solis and no one heard his evidence. The applicant argues that there is no evidence which establishes a nexus between the alleged intentions of Messrs. Mehboob Ali and Amir Ali and the applicant. Furthermore, the applicant contends that he never received an opportunity to respond to the visa officer's concerns. Finally, the applicant submits that the visa officer relied on extrinsic evidence in making his decision.
2. The Respondent's Submissions
[6] The respondent submits that all three applicants applied on the same grounds for employment authorizations. Therefore, the respondent argues that the finding that neither Messrs. Amir Ali and Mehboob Ali met the criteria for employment authorizations necessarily applies to the applicant. The respondent further submits that the finding that Wazir Canada was a paper company was not extrinsic evidence and the visa officer properly took that fact into account.
DISCUSSION
[7] This is a clear case to allow judicial review. The right of fairness demands that the visa officer must provide the applicant with the opportunity to know and respond to any
negative findings (Muliadi v. Canada (M.E.I.), [1986] 2 F.C. 205 (C.A.)). In this case, the applicant did not attend the hearing and was denied on the basis that he had insufficient ties to Pakistan. It appears that the visa officer came to this conclusion by merely extrapolating from the information received from Messrs. Amir Ali and Mehboob Ali.
[8] Even though all three applicants intended to come to Canada for essentially the same reasons, that does not mean that these applicants should be dealt with in the same manner. The decision that the applicant had insufficient ties to Pakistan was made without regard to any evidence about familial, social or business ties in Pakistan that the applicant may have been able to present at an interview. I agree that the applicant is responsible for failing to attend his interview, but the visa officer did not refuse another interview on that basis. Instead, the visa officer refused to reschedule an interview on the grounds that "there was no need to inconvenience [the applicant] with having to travel to Islamabad for an interview".
[9] Thus, I am satisfied that the applicant has not been provided with the opportunity to disabuse the visa officer of the concerns he had. The visa officer has therefore violated the duty of fairness owed to the applicant.
CONCLUSION
[10] For the reasons stated above, the application for judicial review is allowed. This matter is referred back for a rehearing but before representatives of the respondent other than Vonne Solis and Mark Eichhorst.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, ONTARIO
April 14, 1998
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