Federal Court Reports
Tajgardoon v. Canada (Minister of Citizenship and Immigration) (T.D.) [2001] 1 F.C. 591
Date: 20000901
Docket: IMM-2063-99
OTTAWA, ONTARIO this 1st day of September 2000
PRESENT: The Honourable Mr. Justice Pelletier
BETWEEN:
HOSSEIN TAJGARDOON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] Hossein Tajgardoon, the applicant, is an Iranian citizen who wishes to immigrate to Canada. The visa officer who processed his claim found that he lacked the personal characteristics which would permit him to establish himself economically in Canada. This would not distinguish him from many other would-be immigrants to Canada. What does distinguish him is that he is a graduate civil engineer, a former Iranian ambassador to the Netherlands from 1984 to 1987, the Chief of Protocol in the Iranian Ministry of Foreign Affairs from 1987 to 1990, the former Managing Director of Iran Khodro (Iran's largest car manufacturer) from 1991 to 1994 and since 1994, the Deputy Managing Director for Iranian Offshore Engineering and Construction Company. If this man lacks personal suitability, what hope is there for those of more modest accomplishments to satisfy our visa requirements?
[2] Mr. Tajgardoon was interviewed by the visa officer at the Canadian Embassy in Damascus, Syria. His evidence is that the interview was conducted entirely in English with no interpreter. The visa officer had no difficulty understanding him and he was able to answer all questions put to him. In his affidavit, he describes his English as fluent. The visa officer's notes record that Mr. Tajgardoon was asked about his level of proficiency in English and after some discussion with the visa officer, it was agreed that he spoke, read and wrote English well. Notwithstanding this joint assessment, the visa officer then asked him to read a paragraph in English. The visa officer's assessment was that "His reading was not fluent and he [could] not accurately summarize the passage he read. Classification here of well is generous". On the strength of this assessment, the applicant was awarded six (6) out of a possible nine (9) points for English language proficiency.
[3] The visa officer then assessed the applicant's personal suitability, noting that he was a former diplomat. He asked the applicant if he spoke any Dutch or German (the three years with Iranian Khodro were spent at the company's factory in Dusseldorf, Germany) and was told that he did not. When questioned why he had not learned the local languages during his foreign postings, the applicant replied that he was able to function in English. The visa officer recorded that this reflected upon the applicant's adaptability. The visa officer ascertained that the applicant had made no effort to contact prospective employers which he thought showed a lack of initiative. Upon being questioned about the effect of his age upon his employability, the applicant "raised somewhat arrogant response that he [would] not worry about this". Overall, the visa officer did not find the applicant to be "a very congenial character" which he believed would negatively impact on his ability to sell himself in the labour market. The applicant was awarded five (5) out of ten (10) points for personal suitability which is an assessment of the likelihood that the applicant will be able to successfully establish himself in Canada.1
[4] The applicant's rating in the assessment scheme prescribed under Schedule II of the Immigration Regulations, 1978 was as follows:
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[5] The applicant was one point short of the seventy (70) points prescribed by the Regulations. As a result, the shortfall in the English language and personal suitability categories is very significant. However, had the applicant been able to score the seventy (70) points, the visa officer indicated that he would have exercised the negative discretion given to him under the Regulations to refuse the applicant a visa on the ground that the total did not accurately reflect the applicant's chances of successfully establishing himself in Canada.
[6] A preliminary point was raised by the applicant with respect to the absence of an affidavit by the visa officer and the weight to be given to the visa officer's notes, commonly known as the CAIPS ("Computer Assisted Immigration Processing System") notes. The argument is that the CAIPS notes, which are produced pursuant to Rule 317 of the Federal Court Rules, 1998, are not evidence of the truth of their contents since they are a classic example of hearsay, an out of court assertion tendered as proof of its contents. The applicant argues that unless the facts recited in the notes are proven by affidavit, they are not evidence before the Court and cannot be used by the respondent in support of its case. Underlying this argument is the related point that in the absence of an affidavit, there is no opportunity to cross-examine the visa officer with respect to the CAIPS notes. Since the applicant must run the risk of cross-examination to put his/her application before the Court, the respondent should be under the same obligation.
[7] The respondent argues that the Tribunal Record, including the CAIPS notes, is evidence whose weight is to be assessed relative to the other evidence before the Court so that an assertion in the CAIPS notes is worthy of belief unless it is contradicted by other evidence. The trustworthiness of the notes arises from the fact that they are made contemporaneously with the events being recorded. The latter assertion may well be true, but the only evidence of it is the notes themselves.
[8] The applicant relies on the decision of the Federal Court of Appeal in Wang v. Canada (Minister of Citizenship and Immigration), [1991] 2 F.C. 165 (F.C.A.), (1991), 121 N.R. 243, where the issue was the admissibility of a visa officer's memorandum of his recollection of events which was prepared sometime after the fact and was attached as an exhibit to the affidavit of an immigration officer. Mahoney J. for the Federal Court of Appeal held that there was no reason to depart from the usual rules of evidence since it was no more inconvenient for the visa officer to prepare an affidavit than it was for the applicant. To the extent that the applicant was required to swear an affidavit to get his version of events before the Court, thereby exposing himself to cross-examination, there was no rationale for allowing the respondent to put its version of events before the Court without assuming the same obligations. A series of cases have followed Wang, supra, including Fung v. Canada (Minister of Citizenship and Immigration) (1991), 121 N.R. 263 (F.C.A.), [1991] F.C.J. No. 5, Gaffney v. Canada (Minister of Citizenship and Immigration) (1991), 12 Imm. L.R. (2d) 185 (F.C.A.), (1991), 121 N.R. 256, Ayubi v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 276 (T.D.), [1997] F.C.J. No. 777, to set out but a few.
[9] The respondent relies on two recent cases where judges of the Federal Court, Trial Division have held that there is no obligation on the part of the respondent to file an affidavit. In Awwad v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 103, (1999), 162 F.T.R. 209, Teitelbaum J. refused to certify a question as to whether the CAIPS notes were admissible in the absence of an affidavit attesting to the truth of the contents. Teitelbaum J. held that it was the obligation of the parties to put their cases forward as they saw fit. It was for the respondent to decide if it wished to file an affidavit. This sidesteps the question of the evidentiary value of the CAIPS notes, in the absence of an affidavit in support of the truth of their contents.
[10] In Wang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 248, (1999), 166 F.T.R. 278 ("Wang II"), Blais J. held that there was no obligation on the part of the respondent to file an affidavit and that the record was evidence in support of the visa officer's decision. Blais J. relied upon Awwad, supra, in coming to the conclusion he did.
[11] Finally, the matter was considered by Reed J. in Chou v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 314, (2000), 3 Imm. L.R. (3d) 212, in which my learned colleague reviewed the history of this issue since the decision of the Federal Court of Appeal in Wang, supra. She expressed her reluctance to follow the decisions in Awwad, supra, and Wang II, supra, in the absence of some indication that those decisions had been made in the knowledge of jurisprudence on the issue in the Federal Court of Appeal. She concluded that the CAIPS notes were not evidence of their contents in the absence of a supporting affidavit. However, she found that they were admissible as the reasons for the decision, following the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 243 N.R. 22.
[12] Rule 307 dealing first with the obligation to provide an affidavit, provides that the respondent shall serve and file "any supporting affidavits and documentary exhibits" "les affidavits et les pièces documentaires qu'il entend utiliser à l'appui de sa position". While the English version of the Rule is ambiguous, the French version is clear that the respondent need only file those affidavits on which he/she proposes to rely.2 If there are none, none need be filed. This is consistent with the position taken by Teitelbaum J. in Awwad, supra, to the effect that it is for the applicant to marshall the evidence in order to make his/her case.
[13] The next question is the admissibility of the documents produced pursuant to Rule 317. The Rule specifies that:
317. (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.
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317. (1) Une partie peut demander que des documents ou éléments matériels pertinents à la demande qui sont en la possession de l'office fédéral dont l'ordonnance fait l'objet de la demande lui soient transmis en signifiant à l'office fédéral et en déposant une demande de transmission de documents qui indique de façon précise les documents ou éléments matériels demandés.
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[14] The limited scope of the Rule is made clear by comparing it to Rule 17 of the Federal Court Immigration Rules, 1993 which provides as follows:
| 17. Upon receipt of an order under Rule 15, a tribunal shall, without delay, prepare a record containing the following, on consecutively numbered pages and in the following order:
(a) the decision or order in respect of which the application is made and the written reasons given therefor,
(b) all papers relevant to the matter that are in the possession or control of the tribunal,
(c) any affidavits, or other documents filed during any such hearing, and
(d) a transcript, if any, of any oral testimony given during the hearing, giving rise to the decision or order or other matter that is the subject of the application,
and shall send a copy, duly certified by an appropriate officer to be correct, to each of the parties and two copies to the Registry.
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| 17. Dès réception de l'ordonnance visée à la règle 15, le tribunal administratif constitue un dossier composé des pièces suivantes, disposées dans l'ordre suivant sur des pages numérotées consécutivement :
a) la décision, l'ordonnance ou la mesure visée par la demande, ainsi que les motifs écrits y afférents;
b) tous les documents pertinents qui sont en la possession ou sous la garde du tribunal administratif,
c) les affidavits et autres documents déposés lors de l'audition,
d) la transcription, s'il y a lieu, de tout témoignage donné de vive voix à l'audition qui a abouti à la décision, à l'ordonnance, à la mesure ou à la question visée par la demande,
dont il envoie à chacune des parties une copie certifiée conforme par un fonctionnaire compétent et au greffe deux copies de ces documents.
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[15] When one compares the two Rules, it is clear that Rule 17 provides for the production of a certified copy of the Tribunal Record, and Rule 317 simply provides a mechanism for a party to obtain documents not in its possession for the purpose of allowing the party to put the record before the Court. But even under Rule 17, the record is limited to the materials before the Tribunal for the purpose of making its decision and does not include draft reasons and supporting memoranda. See Weerasinge v. Canada (Minister of Citizenship and Immigration), [1994] 1 F.C. 330 (F.C.A.), (1993), 161 N.R. 200.
[16] Rule 4 of the Federal Court Immigration Rules, 1993 provides that except to the extent that they are inconsistent with the Act, various parts of the Federal Court Rules, 1998 apply to challenges to decisions of visa officers. One of the parts which applies to such applications is Part 5, which deals with applications and includes Rule 317. There has been no suggestion of any inconsistency. As a result, the process for putting the record before the Court is different in a visa officer case than it is in a refugee case.
[17] Furthermore, if draft reasons are not part of the record, it is unlikely that CAIPS notes are part of the record either. They are not part of the body of information before the visa officer when he/she makes his/her decision in the same sense as the applicant's record of education or employment is. The CAIPS notes are an internally generated document and are not a document put before the visa officer by the parties. As Reed J. pointed out in Chou, supra, the CAIPS notes are more in the nature of reasons for the decision, notwithstanding the fact that in visa cases, the applicant will have received a letter containing the reasons for the refusal of his/her application.
[18] But to say that the CAIPS notes are reasons does not dispose of the question of admissibility. There is no general principle that reasons are admissible by their production. Admissibility is always a question of "For what purpose?". In the hands of the applicant, the contents of the CAIPS notes tend to be used to show that the visa officer has misconducted himself in some fashion. In the hands of the respondent, the same notes are used to bolster the respondent's submission that all relevant factors were considered. Using the traditional language of the law of evidence, one would say that the applicant relies upon admissions against interest found in the notes while the respondent seeks to use self-serving statements made in an out-of-court document whose author is not available for cross-examination. The conclusion flowing from a traditional analysis of the law is that the CAIPS notes would be admissible at the instance of the applicant as admissions against interest but would not be admissible in the hands of the respondent because they are self-serving hearsay statements.
[19] There is a technical objection to this analysis which is that the respondent, the Minister of Citizenship and Immigration, is not the visa officer and admissions are only admissible against the party who made them.3 The Minister is the respondent in her capacity as the proponent of the decision, and not as one vicariously liable for the visa officer.4 But this technical objection ought not to be allowed to obscure the reality of the situation. It is the visa officer's decision which is under attack. What the visa officer says about the decision or the circumstances leading up to it is surely relevant to the question of the lawfulness of the decision. The fact that the admissions originate with the visa officer raises the same arguments for admissibility as does an admission by a party.5 As the proponent of the decision, the respondent has no interest in the litigation beyond protecting the integrity of the decision. This is not a case of attempting to treat one person's admission as another's. For all of these reasons, it is reasonable to look through the technical argument to the substance and to hold that the contents of the CAIPS notes are admissible against the respondent as admissions against interest by the visa officer whose decision the respondent seeks to uphold.
[20] However, the respondent is not in a position to rely on the CAIPS notes as proof of their contents because this is classic hearsay. They are not admissible as business records in the absence of evidence which establishes that they satisfy the requirements of admissibility of business records. In order to make the CAIPS notes evidence of the facts to which they refer, they must be adopted as the evidence of the visa officer in an affidavit.
[21] While the question was not argued before me, the result is the same when one considers the problem in the light of the trilogy of decisions of the Supreme Court of Canada dealing with hearsay evidence: R v. Khan, [1990] 2 S.C.R. 531, (1990), 113 N.R. 53, R. v. Smith, [1992] 2 S.C.R. 915, (1992), 139 N.R. 323 and R. v. K.G.B., [1993] 1 S.C.R. 740, (1993), 148 N.R. 241. In each of these cases, the Supreme Court had to deal with a problem involving a traditional exception to the hearsay rule: a mother's evidence as to what her infant child told her about a sexual assault in Khan, supra, a statement by a murder victim to her mother as to her fear of the accused in Smith, supra, and prior inconsistent statements in K.G.B., supra. In the course of dealing with these issues, the Supreme Court moved away from the reliance upon the traditional approach to hearsay evidence, i.e. it is inadmissible unless it can be characterized as falling into one of the recognized exceptions to hearsay, to a principled approach to the admissibility of hearsay evidence. Under the principled approach, hearsay is admissible if it can satisfy the tests of necessity and reliability. If the evidence is not available from the original maker of the out-of-court statement, and the circumstances of the making of the statement lead to the conclusion that the statement is likely to be true, then it is admissible whether or not it falls into one of the traditional exceptions.
[22] Do the CAIPS notes satisfy the requirements of necessity and reliability so as to be admissible in proof of their contents at the instance of the respondent?6 The first issue is the question of necessity. Presumably, the respondent would argue that the inconvenience associated with the preparation of affidavits by the visa officers around the world satisfies the requirement of necessity. This argument was raised and disposed of in Wang, supra. It is likely easier for the respondent to get an affidavit from its officer, than it is for the applicant who is also abroad to find someone to prepare and commission his affidavit. In the normal course of events, the requirement of necessity would not be satisfied. The requirement of some circumstantial guarantee of trustworthiness is more problematic. If the document is to be admissible upon its production, the facts necessary to show a circumstantial guarantee of trustworthiness must be found in the document itself. But this amounts to relying upon a document of unknown reliability to prove that the same document is reliable. It is a circular argument. On the face of it, such an argument ought not to succeed. The result is the same, no matter which approach is used.
[23] Turning now to the merits of the application, the applicant argues that the assessment of his English language proficiency is deficient given that the entire interview was in English. Furthermore, he argues that his sworn statement that he is fluent in English is entitled to more credence than the unsworn comments of the visa officer in the visa officer's notes, should they be admissible. I am not disposed to interfere with the visa officer's assessment of the applicant's proficiency in English. He had the opportunity to hear the applicant and to speak to him. The applicant's affidavit evidence is, not to put too fine a point on it, self-serving. I am not prepared to interfere with this finding.
[24] Schedule I of the Immigration Regulations, 1978 defines the various items in the assessment scheme and identifies the points to be awarded to them. Personal suitability is defined as "the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities".7 It is possible to consider some of the factors enumerated in Items 1 to 9 of Schedule I under this heading but only to the extent that they are relevant to the questions of adaptability, motivation, initiative etc.:
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"Double-counting" on the part of the visa officer would be an error of law. In other words, specific factors such as education, language, occupational demand or any of the other five factors outlined in Schedule I already assessed separately cannot be "double-counted" when assessing an applicant's personal suitability [See Note 2 below]. Such factors may be considered under personal suitability only insofar as they elucidate the applicant's adaptability, motivation, initiative, resourcefulness and similar qualities. For example, an applicant who resides in an English-speaking country for several years without learning the language demonstrates less adaptability on his part. A visa officer makes no error in considering the separate factors from this perspective. |
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Ali v. Canada ( Minister of Citizenship and Immigration), [1998] F.C.J. No. 1080.
[25] There was an evidentiary basis for a conclusion that the applicant had not displayed a great deal of initiative in seeking out potential employment in Canada. It is more doubtful that the applicant's failure to learn Dutch or German is indicative of adaptability since he was able to learn English and function in that language. In considering adaptability, a visa officer is not free to consider only one factor in isolation and to ignore the balance of an applicant's employment history. It seems somewhat ironic that a man who has been the ambassador of a major middle eastern nation to a European capital, managing director of a significant industrial concern and deputy managing director of a large construction and engineering firm is reproached for lack of adaptability. His linguistic failings, such as they are, seem trivial compared to the breadth of the applicant's experience in a number of diverse environments.
[26] Furthermore, when the visa officer took age into account in assessing suitability, he was engaging in double counting of a sort which is not permitted. Age is not relevant to adaptability, motivation, initiative, ingenuity or other similar qualities. The labour market realities which confront older workers are already accounted for in the reduced points awarded to immigrants over the age of forty-four. This applicant lost six (6) points out of ten (10) as a result of exceeding forty-four (44) years of age. He ought not to lose more on the same score under the heading of suitability.
An order will be issued in 10 days setting aside the decision of the Visa Officer and remitting the matter to be determined by another Visa Officer.
The parties may in the interim propose a question for certification.
"J.D. Denis Pelletier"
Judge
1 Amir v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 158 (F.C.T.D.), [1996] F.C.J. No. 1706.
2 Canada (Minister of Citizenship and Immigration) v. Lau, [1999] F.C.J. No. 339, (1999), 164 F.T.R. 64.
3 Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd Edition) Butterworths, Toronto, 1999 para 6.292
4 Rule 5(2) of the Federal Court Immigration Rules, 1993 provides that unless the Minister is the applicant, the Minister shall be a respondent in an application.
5 Sopinka, supra para 6.292
6 The principled exception approach does not make inadmissible what would have previously been admissible. Therefore admissions against interest continue to be admissible at the instance of the party adverse to the party making the admission.
7 "...lui et ses personnes à charge sont en mesure de s'établir avec succès au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et d'autres qualités semblables."
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