Zaffar v. Canada (Minister of Citizenship and Immigration), 2002 FCT 680

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2002 FCT 680

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Date: 20020614

Docket: IMM-5221-00

Neutral citation: 2002 FCT 680

Ottawa, Ontario, this 14th day of June, 2002

PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

MUZZAFFAR UL HASSAN ZAFFAR

PARVEEN AKHTAR ZAFFAR

AFZAL NAVEED RANA

IMTISAL AHMAD RANA

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1] This is an application for judicial review of the decision of the visa officer at the Canadian High Commission in Colombo, Sri Lanka, dated May 19, 2000, wherein Muzzaffar Ul Hassan Zaffar's (the "applicant") application for permanent residence was refused.

[2] The applicant is a citizen of Pakistan. He applied for permanent residence in Canada in an application dated April 24, 1997.

[3] The applicant attended an interview with the visa officer on May 16, 2000.

[4] In his application, the applicant listed his intended occupation as "Accountant CCDO 1171114". In his affidavit, the applicant deposed that he requested at his hearing to be assessed as both an accountant and a financial manager. The visa officer did not state that the applicant wanted to be assessed as a financial manager.

[5] The applicant included in his application a letter from his employer dated February 18, 2000 which, if genuine, would have resulted in approval of the applicant as a financial manager. The visa officer confirmed this on cross-examination.

[6] On the day of the interview, the visa officer indicated to the employee that she wished to verify his employment. The visa officer was unable to contact the applicant's employer while he was present.

[7] On the afternoon of May 16, 2000, after the applicant left the interview, the visa officer contacted someone at the applicant's place of employment who told her that the applicant was employed as the company's administration and personnel manager. The visa officer does not know the name or position of the person she spoke with.

[8] The visa officer did not contact the applicant with respect to this new information which suggested that the applicant did not do the work outlined in the letter from his employer dated February 18, 2000.

[9] The applicant, in his affidavit, deposed that at the date of his application, he was working in accounting and financial management as outlined in the letter. As the application process took three years, he had moved to another position with the same employer by the time of the interview.

[10] The applicant had worked with his employer since November, 1983.

[11] The refusal letter containing the visa officer's decision was dated May 19, 2000. The CAIPS Notes indicate that the refusal letter was prepared on May 18, 2000. The decision reads in part as follows:

In accordance with the intended occupation stated on your immigration application form, I have assessed you in your intended occupation of ‘Accountant' (CCDO: 1171114) for which you earned the following units of assessment:

Age 04

Occupational Demand 03

Specific Vocational Preparation 18

Experience 00

Arranged Employment 00

Demographic Factor 08

Education 13

English 09

French 00

Bonus 05

Personal Suitability 01

Total 61

The visa officer refused the applicant's application for failing to obtain the minimum 70 units of assessment as required for immigration to Canada. This is the judicial review of the visa officer's decision.

[12] Issues

1. Did the visa officer err in failing to notify the applicant that she had learned that he was employed as the company's administration and personnel manager?

2. Did the visa officer make reviewable errors in assessing the applicant?

Analysis and Decision

[13] Issue 1

Did the visa officer err in failing to notify the applicant that she had learned that he was employed as the company's administration and personnel manager?

The Federal Court of Appeal in Muliadi v. Canada (Minister of Employment and Immigration) [1986] 2 F.C. 205 stated at page 215:

Returning to the matter of the Province of Ontario assessment I do not view its receipt by the visa officer as bad in itself. In fact its reception was contemplated and even authorized by the appellant at the time of his application and subsequently. Nevertheless, I think it was the officer's duty before disposing of the application to inform the appellant of the negative assessment and to give him a fair opportunity of correcting or contradicting it before making the decision required by the statute. It is, I think, the same sort of opportunity that was spoken of by the House of Lords in Board of Education v. Rice, [1911] A.C. 179 in these oft-quoted words of Lord Loreburn L.C., at page 182:

They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.

Those words have application here even though a full hearing was not contemplated. ([1980] 1 S.C.R. 1105">Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, at page 1113; see also Randolph, Bernard et al. v. The Queen, [1966] Ex. C.R. 157, at page 164.)

[14] In the present case, the visa officer stated on cross-examination:

Q. Okay. I understand that you had some concerns - - he's planning and organizing the activities, supervising preparation of financial budgets, projections, management reporting, maintenance of assets, monitoring of letters of credit. So it gives a whole series of duties that involve - - would you not agree that, if he had been performing these duties, these are the duties both of an accountant and financial manager?

A. If he was performing these duties, they being the duties of a financial manager would have been coming.

Q. Okay. So, if this was a - - if this letter were true, he would have qualified, right?

A. If this letter was true, I would have accepted him as a financial manager.

[15] If the visa officer had contacted the applicant, his information may well have persuaded her that the letter was true, reflecting information up until the time he took on his new position. Her testimony on cross-examination would lead me to believe that he would have been approved in the occupation of financial manager. Fairness dictates, on the facts of this case, that the visa officer should have given the applicant an opportunity to explain the inconsistency which she learned about from his employer. This is particularly important where the new evidence invalidated virtually all of the experience originally outlined by his employer in the February 18, 2000 letter. There was a breach of the duty to act fairly towards the applicants.

[16] The respondent submitted that even if an error was made, then the error was not material. I do not agree. The visa officer stated that if the letter of February 18, 2000 was true, she would have accepted the applicant as a financial manager.

[17] Because of my finding on the first issue, I need not deal with the remaining issue.

[18] The application for judicial review is allowed and the matter is referred to a different visa officer for reconsideration.

[19] Neither party wished to submit a serious question of general importance for certification.

ORDER

[20] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different visa officer for reconsideration.

"John A. O'Keefe"

J.F.C.C.

Ottawa, Ontario

June 14, 2002

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-5221-00

STYLE OF CAUSE: MUZZAFFAR UL HASSAN ZAFFAR

PARVEEN AKHTAR ZAFFAR

AFZAL NAVEED RANA

IMTISAL AHMAD RANA

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: Tuesday, June 4, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED: Friday, June 14, 2002

APPEARANCES:

Lorne Waldman

FOR APPLICANTS

Alexis Singer

FOR RESPONDENT

SOLICITORS OF RECORD:

Jackman, Waldman & Associates

281 Eglinton Avenue East

Toronto, Ontario

M4P 1L3

FOR APPLICANTS

Department of Justice

Suite 3400, Box 36

130 King Street West