Barran v. Canada (Minister of Citizenship and Immigration), docket IMM-535-98

Date: 19990224

Docket: IMM-535-98

BETWEEN:

     HERMAN BARRAN

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CULLEN J.:

[1]      This is an application for judicial review of a decision dated January 13, 1998, of visa officer N.M. Egan, Canadian Consulate General, Buffalo, New York, USA, wherein the applicant"s application for permanent residence in Canada was refused.

FACTS

[2]      The applicant is a national of Trinidad and has been residing in the United States since 1993. In 1972, the applicant completed his secondary school education in Spain, Trinidad. In 1973, the applicant began his apprenticeship in a Workshop Engineering training program for a period of one year and obtained a Certificate. In April 1997, the applicant applied to the Canadian Consulate in Buffalo for permanent residence in Canada pursuant to the skilled workers program, identifying his intended occupation as that of Machinist Experimental (CCDO 8313-110). On January 13^th, 1998, the applicant received a letter from the Canadian Consulate General refusing his application for permanent residence to Canada.

DECISION OF THE VISA OFFICER

[3]      The visa officer"s decision states:

I refer to your application for permanent residence in Canada. I have assessed your application pursuant to subsection 8(1) of the Immigration Regulations, 1978, and have determined that you do not meet the requirements for immigration to Canada.

My assessment of your occupation(s) was conducted according to the Canadian Classification and Dictionary of Occupations. You requested assessment in the following occupation: Machinist Experimental CCDO 8313110.

I have carefully assessed and investigated your training and experience in the occupation of a machinist, experimental, based on the information you provided in your application. However, you have obtained insufficient units of assessment to qualify for immigration to Canada. I am convinced that the points received accurately reflects your chances of successfully settling in Canada. The minimum required is 60, which includes a 5 unit bonus if you are applying in the Assisted Relative category.

You therefore come within the inadmissible class of persons described in paragraph 19(2)(d) of the Act which reads as follows:

(2) No immigrant ...shall be granted admission if the immigrant... is a member of the following classes:

(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.

I have therefore refused your application.

Please find attached a detailed assessment for each of the occupations in which you were assessed. Note that you have not been awarded any units of assessment for Personal Suitability Factor as units for this factor can only be awarded by an officer during a personal interview. In the case of interview, the minimum units of assessment required is 70. Even if you were awarded the maximum of 10 units for personal suitability you would still not reach the minimum units required.

Please note that in the event you would like us to consider any new information you must submit a newly completed application and the required processing fees. (Emphasis as per letter)

UNITS OF ASSESSMENT

Occupation: Machinist Experimental      Code 8313-110

Your score      Maximum

Age                              10          10

Occupational Factor                  01          10

Specific vocational preparation

or Education/Training factor              18          18

Experience                      08          08

Arranged employment                  00          10

Demographic Factor                  08          08

Education                      00          16

Knowledge of English and

French languages                  09          15

Assisted relative bonus                  05          05

TOTAL (minimum required: 60)      59

APPLICANT"S ARGUMENTS

[4]      It is submitted that the visa officer has awarded the applicant only zero (00) units of assessment for the educational factor rather than the thirteen (13) units to which the applicant is entitled. It is submitted that the applicant completed his 10 years of secondary school education as well as a one-year certificate in Workshop Engineering Course and is therefore eligible for thirteen units of assessment for educational factor.

[5]      It is submitted that the visa officer prematurely refused the application on paper screening based on a typing error and without satisfying herself of the applicant"s educational background by making further inquiries of him or requesting copies of his educational diplomas.

[6]      It is submitted that the additional documentary evidence of educational diplomas obtained by the applicant entitle him to be processed further and to be scheduled for an interview with the Canadian Consulate General.

[7]      It is submitted that although the visa officer completed his assessment pursuant to the statute and determined that the applicant did qualify under the designated occupation, the visa officer erred in failing to provide the applicant with thirteen (13) units of assessment for the education factor, as the applicant has completed a post-secondary schooling and obtained his Certificate: Muliadi v. Canada (Minister of Employment and Immigration) [1986], 2 F.C. 205 (F.C.A.).

RESPONDENT"S ARGUMENTS

[8]      On judicial review, an applicant cannot rely on evidence that was not before the decision maker. Therefore, the high school certificate which the applicant now relies on as evidence of his completion of high school, is not properly before the Court at this time: Hossain v. Canada (Minister of Citizenship and Immigration), IMM-2016-97 (F.C.T.D.) (April 17, 1998), and Lemiecha v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R. 49 (F.C.T.D.).

[9]      Further, there is no duty on a visa officer to assist an applicant or to request supplementary information. Therefore, since it was the applicant himself who submitted the documentation that stated he had not completed any high schooling, it makes no sense for the applicant to now claim that the officer was under some kind of obligation to request further clarification or information on this point: Hossain (supra)

ANALYSIS

[10]      There are two issues to be determined:

1.      Can this Court, in the context of an application for judicial review, take into consideration new evidence presented by the applicant?

2.      Was the visa officer under any kind of obligation to make further inquiries regarding the applicant"s education?

[11]      The answer to the first question is no, as has often been decided by the Court. On judicial review, the Court can consider only the evidence that was before the administrative decision-maker and not new evidence: Brychka v. Canada (Attorney General) (1998), 141 F.T.R. 258. The proper evidentiary basis on which to proceed in a judicial review application is the record before the federal board. If the Court were to hear additional evidence, the effect would be to transform the judicial review process into an appeal. Anduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468, 38 Imm. L.R. (2d) 217, 132 F.T.R. 281.

[12]      The high school certificate referred to by the applicant was not before the visa officer at the time of the assessment as reported in her affidavit:

"Mr. Barran indicated that he had not completed high school. This indication can be found at question 12 of his application where he stated "uncompleted high school"."

Respondent Application record, page 2.

Applicant Application record, page16

"I further note that Mr. Barran has included as Exhibit "A" to his supporting affidavit a certificate of achievement from Calvary R.C. School."

"I wish to make it clear that this document was not provided to me, prior to my reaching my negative decision."

Respondent Application record, page 2

[13]      The answer is less obvious with respect to the second issue. In Dhesi v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 59 (T.D.) Justice Dubé held that there was a duty of fairness on the visa officer to clarify the matter when contradictions between oral answers and the documents referred to occurred:

"There is a duty upon a tribunal to deal with the totality of the evidence and to further explore obvious contradictions between the oral evidence of a witness, who may be nervous (although he may, as in this instance, have answered that he was not nervous) and previous information provided in writing under a solemn declaration."

[14]      In Chou v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 819 (T.D.), Teitelbaum J. made the following comments regarding the duty of fairness on the visa officer:

"In the present case, I am satisfied the visa officer failed in her duty of fairness in not asking the applicant, after receiving the "insurance cards" to explain what the visa officer found to be a contradiction as to the work history of the applicant.

It appears to me that the applicant was denied the right to "explain" the alleged contradiction"

[15]      In Muliadi v. Canada (M.E.I.), [1986] 2 F.C. 205, Justice Stone of the Court of Appeal, referring to a negative assessment received from the Province of Ontario by the visa officer, made the following remark:

"Had the appellant been informed of that assessment before it was decided to reject his application, he might have been able to look into the matter and, possibly, to disabuse the visa officer of his view that the business was not viable."

[16]      In view of the above, it is my opinion that the case at bar does not deal with contradictory evidence which would trigger a duty to request supplementary information by the visa officer. The visa officer had before him an application which contained the words "uncompleted high school" and there was no certificate before him to contradict this statement.

[17]      Also, the statement "uncompleted high school" is not information of which the applicant was unaware since his signature appears on the application form under the heading: DECLARATION OF THE APPLICANT

I personally accept full responsibility for all statements made in this application, and declare that the information I have given in this application is truthful, complete and correct. If the applicant failed to verify the content of the application before signing it, I do not believe that it should be the visa officer"s responsibility to reconfirm the contents of the application.

[18]      I have determined that the visa officer complied with the duties imposed upon her by the relevant jurisprudence. Further, if the applicant failed to supply valuable information regarding his application before the decision was made, it is open to him to submit a newly completed application, as stated in the visa officer"s letter to the applicant dated January 13, 1998, supra .

[19]      The application for judicial review is dismissed.

OTTAWA, ONTARIO     

    

February 24, 1999.      J.F.C.C.