Date: 20030211
Docket: IMM-4631-01
Neutral citation: 2003 FCT 146
Toronto, Ontario, Tuesday, the 11th day of February, 2003
Present: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
MENINO RODRIGUES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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- Mr. Menino Rodrigues (the "Applicant") seeks judicial review of the decision of Visa Officer Kristin L. Erickson (the "Visa Officer"). In her decision, dated August 23, 2001, the Visa Officer refused the Applicant's application for permanent residence in Canada.
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[2] The Applicant, a citizen of India, applied for permanent residence in Canada in March 1999. He applied as a Purchasing Agent, National Occupational Classification ("NOC") 1225.
[3] He attended an interview with the Visa Officer on September 13, 2000. In the course of the interview, the Visa Officer requested the Applicant to provide further documentation concerning both proof of funds for establishment in Canada and the convocation degree for his bachelor's degree from the University of Bombay. Although the Applicant had initially provided his mark sheet and provisional certificate, the Visa Officer wanted to see his original degree certificate because the other documents were, as she stated in the Computer Assisted Input Program System ("CAIPS") notes, "much easier to forge".
[4] The Applicant provided the requested documents in November and December 2000. Although there was some delay on the part of various agents of the Respondent, the material eventually came into the hands of the Visa Officer. In a letter dated May 15, 2001, the Visa Officer advised the Applicant that she was not satisfied that his degree certificate was genuine. The Visa Officer said, in part, as follows:
Having examined it, I have found that it contains a number of features that are hallmarks of previously seen fraudulent degrees. Notably, the document is printed on poor quality paper, showing no watermarks or other security features; the print quality is poor and is not aligned on the page; the dry seal shows irregularities.
This May 15, 2001 letter invited the Applicant to provide further documentation regarding the genuineness of his degree within a stipulated time frame.
[5] The Applicant subsequently supplied more documentation concerning his education and university degree but the Visa Officer remained unsatisfied about the genuineness of the degree. In her letter dated August 23, 2001, the Visa Officer refused the Applicant's application. She awarded him ten (10) units for education because she did not accept his university degree as genuine. In the affidavit filed in this application for judicial review, the Visa Officer says she erred in calculating, in the CAIPS notes, the total number of units awarded to the Applicant as 64; the correct number was 65.
[6] The dispositive issue arising from this proceeding is whether the Visa Officer committed a reviewable error in her assessment of the Applicant's educational qualifications, particularly in light of the manner in which she assessed the original and supplementary documentation submitted by the Applicant in that regard.
[7] It is noteworthy that the Visa Officer did not explain, in the CAIPS notes for August 23, 2001 or in the refusal letter of the same date, why the further written material submitted by the Applicant was unacceptable to her. The CAIPS notes provide, in part, as follows:
I HAVE CAREFULLY REVIEWED THE ADDITIONAL DOCUMENTS PROVIDED BY THE APPLICANT. I AM NOT SATISFIED THAT THHESE [sic] DOCUMENTS PROVIDE ANY FURTHER SUPPORT TO THE DEGREE PRESENTED AND I AM NOT SATISFIED THAT THE DEGREE IS GENUINE.
[8] The refusal letter says the following:
At your interview, you were asked to provide your original University of Bombay degree as I was not satisfied based on the information and documents provided that you had actually completed that degree. You provided the original degree, and after careful examination, I was not satisfied that the degree was genuine. On 15 May 2001, I wrote to you explaining my concerns and offered you an additional period to provide any further documentation. Having reviewed the documents provided, I am not satisfied that the university degree presented by you is genuine, and no units of assessment were awarded for it.
[9] The entry in the CAIPS notes simply says that the Visa Officer is not satisfied with the supplementary material but gives no rationale for this opinion. Likewise, the refusal letter simply states a conclusion without providing any reasons for it.
[10] In my opinion, this amounts to a breach of the duty of procedural fairness, particularly in a situation where the Visa Officer requested the further material. Her manner of dealing with the material rendered the "fairness letter" of May 15, 2001, by which she asked the Applicant to submit further documentation, meaningless.
[11] The application for judicial review is allowed and the matter remitted to a different visa officer for redetermination in accordance with these reasons. Counsel advised that no question for certification arises.
ORDER
The application for judicial review is allowed and the matter remitted to a different visa officer for redetermination in accordance with these reasons. Counsel advised that no question for certification arises.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4631-01
STYLE OF CAUSE: MENINO RODRIGUES
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, FEBRUARY 10, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: TUESDAY, FEBRUARY 11, 2003
APPEARANCES:
Mr. Max Chaudhary
For the Applicant
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD:
Mr. Max Chaudhary
Chaudhary Law Office
18 Wynford Drive, Suite 707
North York, Ontario, M3C 3S2
For the Applicant
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030211
Docket: IMM-4631-01
BETWEEN:
MENINO RODRIGUES
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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