Date: 19991203
Docket No.: IMM- 3957-98
BETWEEN:
MIKHAEL NARODITSKIY,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
[1] This is an application, pursuant to section 18.1 of the Federal Court Act, S.C. 1990, c.8, s.5, for judicial review of a decision by a visa officer, made June 24, 1998, rejecting the applicant as an immigrant in the "independent" category. The applicant seeks a writ of certiorari quashing the decision of the visa officer, a writ of mandamus commanding the respondent to refer the applicant"s application back for reprocessing by another officer and an order as to costs.
Facts
[2] The applicant, Mikhael Naroditskiy, is a citizen of Israel. He applied at the Canadian embassy in Portugal for permanent residence on or about April 28, 1997 as a welding equipment repairer pursuant to the Canadian Classification and Dictionary of Occupations, Ottawa: Employment and Immigration Canada, 1977, (hereinafter CCDO). He attached to his application a history of his work experience. The applicant was accepted for an interview on November 14, 1997.
[3] For his interview, the applicant was asked to bring proof of this work experience in the form of detailed reference letters specifying his duties and responsibilities. The applicant brought reference letters from three businesses in which he had been employed. Two of these letters referred to the applicant"s experience in "plumbing, welding and locksmith"s works, including repairing equipment for welding" (certified record at 56-57) and three referred to his experience in "repairing equipment for welding" (certified record at 55-57). Another letter, dealt with below, was from the Israel Electric Corporation Ltd (hereinafter IECL).
[4] During the interview, the applicant asserted that, while at IECL, he had been responsible for repairing and maintaining welding and flame cutting machines and that his daily duties had included the inspection, maintenance and repair of welding equipment. The applicant alleges that he also discussed his duties at Pergal Company (hereinafter Pergal) where he was then working, having moved on from IECL (applicant"s record, tab 3 at paragraph 7). Mr. Drapeau, the visa officer, briefly noted that the applicant was working at Pergal.
[5] On checking up on the reference letter from IECL after the interview, the visa officer was informed that parts of the letter had been changed. The copy of the letter which the applicant had submitted to the visa officer had stated (certified record at 53):
| This is hereby to certify that Mr. MICHAEL NARODITSKIY [...] is employed at our company as a fitter-welder at the department of pipe systems since 17.02.1994. |
| Mr. Naroditskiy deals with welding equipment repairing, changing of defective parts of the equipment and welding of steel pipe systems for air and water supplying at the power station. |
| Mr. Naroditskiy is a high-qualified experienced worker. He carries out every his [sic] assignment with great will and full responsibility [...] |
According to the transcript of an email dated March 23, 1998, the original letter had apparently read (certified record at 51):
| We confirm that you are employed as a temporary worker under a special contract from 17.02.94 as a welder-fitter in the pipe systems department. This document is given upon your request to present to Amal College in Kyriat Haim. |
[6] Prior to discovering the changes made to the original reference letter Mr. Drapeau had clearly developed a liking for the applicant. He wrote thus in his CAIPS (Computer Assisted Information Processing System) notes (certified record at 15):
| [[...] He [the applicant] seems to be a nice, approachable man who has made a great effort to improve his professional training and to ensure a good future for his family[.] He appears to have solid experience in the field of plumbing-welding [...] has taken courses to upgrade his English since the refusal in Rome. Qualifies equally as an engineer [...] I am agreeable to accepting him if the meds and the reference letters do not present any problems - [translation] |
[7] After the forgery was revealed, the visa officer"s tone chilled considerably. In seeking an explanation from the applicant for the inconsistencies between the two versions, the visa officer wrote in a letter dated April 6, 1998 (certified record at 50):
| [...] Unfortunately we were informed that the contents of this letter were quite different from the original letter issued to you and signed by the Deputy to Personal Manager. If you are unable to give us an explanation of this occurrence to our satisfaction we will be forced to refuse your application. |
[8] Once confronted with the corrected version of the original letter, the applicant provided other documentation to the visa officer in an attempt to attest to his experience as a welding equipment repairer at IECL. This included photographs and three letters, apparently from co-workers, stating that the applicant worked at IECL as a fitter-welder. Another letter, authored by Mr. Leybovich Moshe, stated that the applicant had worked for IECL as a fitter-welder, had worked as an arc welder and was "able to repair different type [sic] of gas and electric welding equipment, to make welding works and steel pipelines installation [sic], and to read technical drawings" (certified record at 32). Another letter stated that the applicant had worked as a supervisor at IECL, had been employed as a fitter-welder, could read technical drawings and make welding works. The applicant also wrote the visa officer a letter explaining how and why the original IECL reference letter had been altered.
[9] In spite of the applicant"s efforts, the refusal letter, dated June 24, 1998, showed a score of "0" for welding equipment repairer experience. No explanation was given in the letter for this low score but, when later explaining this decision in his affidavit, the visa officer wrote (applicant"s record, tab 4 at paragraph 7):
| 7. I found that the Applicant"s explanations regarding the forged letter were insufficient and that the additional exhibits submitted did not establish that the Applicant did indeed have the experience he claimed to have as a welding equipment repairman. The photos did not demonstrate that the Applicant had this experience. |
| 8. We do not have the time to verify all letters of reference but the submission of a forge[d] reference letter, so expressly drafted to give the impression that the Applicant was highly qualified as a welding equipment repairman, tainted the weight of all of his letters of reference [...] |
| 9. I concluded that the letters of reference indicated instead that the Applicant was working as a welder, plumber and locksmith [...] [translation] |
[10] The total score given to the applicant under the CCDO chapter 8584-190 calculation was sixty-five and was, therefore, insufficient to qualify him for immigration to Canada.
Legal Issues
[11] The applicant raises three issues. The first issue concerns whether the visa officer considered that the applicant may have gained experience as a welding equipment repairer while at IECL. The second issue concerns whether the visa officer erred in not including the eleven months of experience gained by the applicant at Pergal within the former"s work experience assessment. The final issue concerns whether the visa officer committed an error of law in both assessing the applicant"s personal suitability and in not exercising his discretion under subsection 11(3) of the Immigration Regulations, 1978 , SOR/78-172.
[12] With regard to the first issue, counsel for the applicant accepts that the true version of the IECL reference letter was silent on whether the applicant had gained experience as a welding equipment repairer. He maintains, however, that the letter did not disavow that the applicant had gained such experience. Counsel further submits that because of the silence and the fact that the deputy personnel manager referred to the applicant"s occupation by the title of welder-fitter, the visa officer assumed that the applicant had gained no experience as welding equipment repairer while at IECL. A visa officer may not assume, however, that an applicant has gained no relevant experience. He must actively consider whether an applicant has gained any experience relevant to his chosen occupation; Dhaliwal v. Canada (Minister of Employment and Immigration) (T-2422-91, February 17, 1992) and Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (F.C.T.D.).
[13] The respondent accepts that the visa officer was persuaded by the corrected version of the IECL reference letter into thinking that the applicant was a welder-fitter. However, someone who is described by a deputy personnel manager as a welder-fitter is not a welding equipment repairer nor performing the duties of one. In any event, the respondent submits, all the reference letters, as well as the applicant"s explanation letter, failed to describe the duties of a welding equipment repairer as laid out in CCDO chapter 8584-190. Rather, the letters described the duties of a welder-fitter, as enumerated in CCDO chapter 8335-114. Only the letter of Mr. Leybovich Moshe described some of the duties of a welding equipment repairer; Mr. Moshe stated only, however, that the applicant was able (that is, trained) to do these duties, not that the applicant actually performed these duties at IECL.
[14] Items 3 and 4 of schedule I of the Regulations provide:
| 3. Experience Units of assessment shall be awarded for experience in the occupation in which the applicant is assessed under item 4 [...] |
| 4. Occupational Demand Units of assessment shall be awarded on the basis of employment opportunities available in Canada in the occupation that the applicant is qualified for and is prepared to follow in Canada [...] |
Item 3 clearly requires that, if the true version of the reference letter contained evidence of experience in the occupation chosen by the applicant, then the visa officer was required to consider it. As the respondent submits, however, an employer who writes to Amal College that an employee is working in only a single occupation is not likely to be hiding the fact that the worker is really, also, busily engaged in another occupation. In addition, it would be unreasonable to expect the visa officer to draw such an inference. Indeed, one cannot draw an inference from the contents of the corrected reference letter that the applicant gained experience as a welding equipment repairer while at IECL.
[15] Had an inference of relevant job experience in the corrected reference letter existed, the visa officer implies in his affidavit that it would have played little, if any part, in the officer"s final decision to award no points for work experience. Paragraph 7 of the affidavit shows that the visa officer based his finding in respect of work experience on all of the material submitted by the applicant. Paragraph 8 reveals that the reference letters were given little weight and, therefore, little influence amidst this material.
[16] The second main issue raised by the applicant concerns the eleven months of experience as a welding equipment repairer allegedly gained by the applicant at Pergal. The applicant alleges that the visa officer erred in failing to include points for this experience when completing the calculation under item 3 of schedule I. The respondent submits that the visa officer received no evidence of any relevant experience gained at Pergal. In particular, she submits, the experience gained by the applicant at Pergal does not fit into the welding equipment repairer category.
[17] With regard to the standard for review proper to the finding in question, the respondent submits that considerable deference should be shown by this Court as the finding is one of fact. It submits that the appropriate standard is patent unreasonableness and relies on Hanif v. Canada (Minister of Citizenship and Immigration) (IMM-3744-97, June 29, 1998) (Mackay J.) (F.C.T.D.). Mackay J. cites no authority for adopting this standard in relation to questions of fact, however, this Court is satisfied that an application of the pragmatic and functional test would indicate that this is the appropriate standard.
[18] The attachment to the application form which lists the applicant"s employment history has a brief annotation, made by the visa officer, that the applicant had worked at Pergal from December of 1996 up until the date of the interview. There is, however, no description of experience beside the annotation. The applicant avers that he talked about his work at Pergal in some detail and that this work is relevant to the occupation of welding equipment repairer but there is no other evidence to suggest that this is so. On the other hand, the applicant was asked to bring reference letters to the interview in order to substantiate any claim of relevant work experience. The absence of such a letter from Pergal strongly implies that he had no such work experience to claim. It is possible that, upon a somewhat probing analysis of the visa officer"s finding, this Court might determine that he has made an erroneous finding of fact. Having found no error on the face of the visa officer"s reasons in respect of Pergal, however, this Court concludes that his finding of "0" experience should remain undisturbed.
[19] The third main issue submitted by the applicant concerns whether the visa officer committed an error of law in assessing the applicant"s personal suitability or improperly failed to exercise his discretion under subsection 11(3) of the Regulations. This Court will examine first the assessment of the applicant"s personal suitability.
[20] The applicant submits that, prior to the deceit surrounding the reference letter being discovered, the visa officer was prepared to score the applicant a perfect "10" for personal suitability. On learning of the forgery, however, the visa officer reversed his opinion relating to the applicant"s suitability but provided no reasons in the refusal letter for doing so. In light of the alleged reversal and in the absence of any written reasons for it, the applicant submits, one can only assume that the visa officer considered the applicant"s deceit and ignored all other factors relevant to his suitability. This reliance, he continues, amounted to an error of law; see Chen v. Minister of Employment and Immigration , [1991] 3 F.C. 350 (F.C.A.) (hereinafter Chen).
[21] Counsel for the respondent is more prosaic in his description of the visa officer"s initial opinion relating to the applicant"s suitability. In any event, counsel submits, any opinion about suitability was grounded in the assumption that the applicant had experience as a welding equipment repairer. Finally, counsel submits that tendering the falsified reference letter showed a lack of adaptability, resourcefulness and initiative and is, therefore, able to support a low suitability score; see Ahmad v. Canada (Minister of Citizenship and Immigration) (IMM-4355-96, October 30, 1997) (F.C.T.D.).
[22] Neither party made submissions with regards to the appropriate standard of review. As the question concerns the visa officer"s application of law, something which is outside his area of expertise, this Court considers that the appropriate standard is one of correctness.
[23] The applicant is correct in his assertion that the visa officer found him reasonably suitable upon interviewing him. Though it was probably not a perfect "10", the officer"s CAIPS notes indicate that he saw the applicant as having adaptability and initiative. Had nothing else happened dishonestly, therefore, the applicant would have probably scored more than the "3" for personal suitability that he received. It is equally clear, from the letter of April 6, 1998 that the attempt to pass off a counterfeit letter played a role in reducing that score. Even if the forged letter was the sole reason for reducing the score, however, that does not amount to an error of law. Making a moral judgment about an applicant is strictly forbidden; B"Ghiel v. Canada (Ministry of Citizenship and Immigration) (July 8, 1998, IMM-2545-97) (F.C.T.D.). Strayer J. notes in Chen, supra at 358, however:
| It [The Federal Court of Appeal] did recognize that there might be circumstances in which a false answer might justify refusal of admission [...] |
[24] What can these circumstances be? Strayer J. recognizes at 361, that "personal suitability", as defined in column II of schedule I, ought to help reflect the ability, economically, of an immigrant to successfully establish himself in Canada. Item 9, column II of schedule I provides:
| Units of assessment shall be awarded on the basis of an interview with the person to reflect 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. |
[25] Circumstances in which a false answer does justify refusal would, therefore, include occasions when the particular falsehood reflects advantageously, in terms set out in item 9, on the applicant"s chances of establishing himself economically in this country. On the other hand, evidence that a visa officer lowered an applicant"s personal suitability score for reasons found outside of item 9 might imply a moral judgment on the part of the visa officer. Would it be so terrible if Canada exacts that immigrants not cheat and lie to gain advantage?
[26] The applicant did not take his argument further than he did, and this is just his misfortune. The question, in light of Chen, supra, is not whether a score was decreased upon the discovery of deceit but whether the decrease was reflective of a re-evaluation of the factors found in item 9, column II of schedule I. The applicant submitted no evidence demonstrating that the visa officer strayed outside the bounds of item 9 except to note that no reasons for the reassessment of the suitability score were issued. Otherwise, he has a forged letter, and then suffers a subsequent drop in his personal suitability. There is nothing in this evidence, however, which shows that the visa officer made a moral judgment or impels one to assume so. In the absence of cogent evidence of this sort, the Court will not assume that such a judgment occurred and that it cannot, therefore, disturb the visa officer"s personal suitability finding. What conclusion about personal suitability can be drawn about such an immigrant"s prospects of success? This once-in-a lifetime sort of deceit against the government, could become an annually practised habit when preparing income tax returns, at no little cost to Canada and Canadians.
[27] Finally, the applicant submits that the visa officer was prepared to exercise his discretion under subsection 11(3) to grant this application but changed his mind upon the reference letter from IECL being impugned. Subsection 11(3) of the Regulations provides:
| (a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 [...] |
| if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer. |
[28] This claim proceeds on the allegation that the visa officer originally assessed the applicant as a welder-fitter. This is clearly an error, however, as the visa officer wrote in French in his CAIPS notes that he was considering the applicant within the whole field of piping and welding as well as the engineering field and not simply as a fitter-welder. Based as it is on a misappreciation of the facts, this submission must fail.
Conclusion
[29] All three points in issue having been resolved in favour of the respondent, this application is dismissed in its entirety. No written submissions having been made in respect of costs, the Court would ordinarily follow the thrust of section 22 of the Federal court Immigration Rules, 1993, and award no costs. However, in this case there would have been no case at all, but for the applicant"s tampering with the text of the IECL letter. That tempering, in effect a forgery, constitutes a special reason to award the victimized respondent costs of this proceeding at the applicant"s expense. This Court fixes such costs at the sum of $1,100, payable forthwith by the applicant in the respondent"s favour.
"F.C. Muldoon"
Judge
Ottawa, Ontario
December 3, 1999
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