Date: 20010125
Docket: IMM-1775-99
Ottawa, Ontario, this 25th day of January 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
PRITPAL SINGH AHLUWALIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] The applicant wishes to immigrate to Canada but his application for permanent residence was refused by the Visa Officer. There is a dispute as to the circumstances surrounding the refusal. The applicant says he was refused because the Visa Officer is biased. The Visa Officer says his application was refused because he did not meet the requirements of the Immigration Act, R.S.C. 1985 c. I-2 ("the Act") and the Immigration Regulations,1978. Who is right?
[2] On October 15, 1998, the applicant was invited to an interview with the Visa Officer on December 3, 1998. He did not appear for the interview. Instead, the Visa Officer received a letter dated November 30, 1998, from the applicant's consultant, Worldwide Immigration Consultancy Services Ltd., which reads as follows: "Due to unavoidable circumstances our client will not be able to attend the interview on Dec 03, 1998 at New Delhi. You are kindly requested to POSTPONE THE INTERVIEW of our client. Inconvenience caused is regretted."
[3] The interview was rescheduled for February 3, 1999.
[4] On February 3, 1999, the Visa Officer asked the applicant to explain to her the "unavoidable circumstances" which caused him to miss his first interview. The applicant suggested that he had a reason but was reluctant to disclose it. Eventually, he provided a number of contradictory and evasive explanations for his absence.
[5] In order to rule out a language problem or the possibility that the applicant was unwilling to disclose the reason to a female officer, the Visa Officer asked her colleague, Mr. Y. D. Malhotra, a senior Designated Immigration Officer, to speak to the applicant about his failure to attend the first interview.
[6] Mr. Malhotra met with the applicant in his own office. Following that conversation, he reported to the Visa Officer that he had been unable to get a straightforward response from the applicant.
[7] The Visa Officer and Mr. Malhotra then spoke to the applicant about his unsatisfactory responses to their apparently simple question.
[8] Finally, the applicant stated that he had loaned a sum of money to a family member which he was now having difficulty collecting. The applicant was so upset by this predicament that he could not attend the interview which had been scheduled for him.
[9] The applicant's chosen occupation was "Diesel Mechanic" (CCDO 8584-382/NOC 7312). The Visa Officer interviewed him to see if he qualified for admission under this occupation.
[10] The applicant explained that, although his IMM8 form disclosed a certificate or diploma in "Tool & Die Maker", he had not completed this course as he "was not interested in it". He also took a one year course in Diesel Mechanics which he completed in July 1978. This was his last technical training. He also completed a "Total Productive Maintenance" course which he described as oriented towards improving workplace efficiency and encouraging workers to take responsibility for their work and workplace. The Visa Officer awarded the applicant 10 units of assessment for Education since he had completed a one-year post secondary certificate program.
[11] The Visa Officer inquired about the applicant's work experience. She asked him to tell her how he would remove a cylinder head. The applicant said he would use a torque wrench for that job. The Visa Officer found it illogical that a torque wrench would be necessary to remove a cylinder head (as opposed to installing it). When the Visa Officer pursued the matter, the applicant was unable to say why he would require specific torque to remove a cylinder head, nor could he demonstrate a satisfactory understanding of the concept of torque.
[12] The Visa Officer assessed the applicant's ability to read, write and speak English as "well" and awarded him 6 units of assessment.
[13] The Visa Officer then asked the applicant about his knowledge of Canada, his research into the job market and his preparations for immigration to Canada. The Visa Officer thought that the applicant's answers were unsatisfactory so she awarded him three units for the Personal Suitability Factor.
[14] Following the interview, the Visa Officer reviewed the application. The Visa Officer's first assessment gave the applicant full points for experience as a Diesel Mechanic. In spite of this, the applicant only scored 68 points which is less than the 70 points required for the issuance of a visa.
[15] The Visa Officer then reviewed the application for other potential occupations in which the applicant might qualify for permanent residence in Canada. She tried assessing him as a Motor Vehicle Mechanic [CCDO 8581-110]/Motor Vehicle Mechanics and Technicians [NOC 7321.1] but the applicant did not score enough to qualify for admission in those occupations either.
[16] On February 11, 1999, the Visa Officer wrote to the applicant to tell him that his application was refused. In this letter, the Visa Officer changed her assessment of the applicant's experience as a Diesel Mechanic to 0 units. The applicant scored only 62 points as a result.
[17] The Visa Officer says that although the general tenor of the applicant's Affidavit is faithful to the actual interview, there are significant differences.
[18] The Visa Officer denies the applicant's allegation, that she said "I will not open your file if you don't tell me why you did not come" (Applicant's Affidavit para. 13). However, she agrees that she was not prepared to continue with the interview until such time as he told her why he had not attended the earlier interview. Originally, the Visa Officer was simply curious why he had missed the initial interview. She had expected a simple answer and grew increasingly concerned with each new and contradictory response. His version of what he told her is not accurate. He was evasive, unconvincing, and he frequently dissembled. He did not provide as concise a response as he had indicated.
[19] The applicant argues that the Visa Officer became fixated with the issue of his failing to attend the first interview and that as a result, she developed a bias against him which led to his application not being fairly considered.
[20] It seems clear enough that the failure to attend an interview with a Visa Officer can result in the Visa Officer considering the application without the benefit of having heard from the applicant. See Su v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1091 (McDonald J.A.), (1998), 152 F.T.R. 136; Voskanova v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 449 (Nadon J.), (1999), 167 F.T.R. 258. In this case, the applicant's interview was rescheduled at his request but when questioned as to why the rescheduling was necessary, he was unable to provide a satisfactory answer. His lack of candour piqued the Visa Officer's interest, and justifiably so.
[21] The problem which is more troublesome, though, is the Visa Officer's assessment of the applicant's experience as a diesel mechanic. Having initially given him points for experience in his occupation, her final evaluation awarded him no points for experience. While this is curious, it would be understandable but for the Visa Officer's evidence that she did not question the applicant's credibility. If that is so, then the two positions which she took are inconsistent. If she believed him, he was entitled to credit. She was entitled to disbelieve him, but then she would have to say that she disbelieved him and proceed as she did. She cannot say she believed him and then act as if she did not.
[22] However, even if the applicant were given the points which he was awarded on the initial assessment, he still did not have enough points to qualify for a visa. With the six points for experience as a diesel mechanic, his total score was 68, two points less than the required 70 points. As a result, the inconsistency in the Visa Officer's position makes no difference to the final outcome.
[23] In Syed v. Canada (Attorney General), [1999] F.C.J. No. 451 my colleague, Nadon J. found that an error by a Visa Officer which did not affect the ultimate result was not grounds for intervention:
| [para6] In view of the above, I must conclude that even if the visa officer erred as submitted by the Applicant, the errors do not allow me to intervene since the Applicant, in any event, would not have obtained more than 69 points, one short of the minimum required. |
[24] See also Barua v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1571 paras. 21-23 per Evans J., (1998), 157 F.T.R. 65 and Roopani v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 564 paras 9 & 12 per Evans J., (1999), 168 F.T.R. 309 to the same effect.
[25] In the circumstances, I find that the apparent inconsistency in the Visa Officer's position did not affect the ultimate result and consequently no intervention is justified. I say this in the knowledge that it appears to assume that if the initial assessment had been issued, it would have been beyond challenge. This is clearly not the case in that even if the Visa Officer had stayed with her initial assessment of 68 points, the applicant would have been entitled to challenge that assessment on the ground that it did not adequately reflect his situation. The standard of review of a decision of a Visa Officer has been found to be reasonableness (Hao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 296. If the original score were reinstated, I would not interfere with the result. The allegations of bias are unfounded. There is no error in the balance of the assessment. I would not substitute my judgment for the Visa Officer's on issues such as Personal Suitability.
For those reasons, I find that even if the Visa Officer erred in her treatment of the applicant's experience, it was not material to the result. The application for judicial review will be dismissed.
ORDER
For the reasons stated above, the application for judicial review is dismissed.
"J.D. Denis Pelletier"
Judge
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