Parveen v. Canada (Minister of Citizenship and Immigration), docket IMM-3587-98

Date: 19990429

Docket: IMM-3587-98

BETWEEN:

     NASIMA PARVEEN

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

REED J.

[1]      This is an application to review and set aside a visa officer's decision that found the applicant was not qualified to work as an executive secretary in Canada; she was not awarded enough points to be granted landed immigrant status.

[2]      As often occurs in these cases, there are quite different descriptions from the applicant and from the visa officer about what occurred at the interview by the visa officer of the applicant. I will return to this later.

[3]      There is, in any event, a fundamental error in the decision. The visa officer found that the applicant was not qualified as an executive secretary because she lacked basic secretarial skills: typing, shorthand, dictation. However, in the refusal letter that was sent to the applicant, the visa officer stated that the applicant had been evaluated not only as an executive secretary but also as a secretary, an occupation for which the visa officer found the applicant to be qualified. The basic secretarial skills are common for both categories, with an executive secretary being required to undertake expanded responsibilities. Mr. Justice Evans in Hussain v. Canada (Minister of Citizenship and Immigration), [1998] F.C. J. No. 1538, identifies these as working for an office executive, researching and analyzing information for the employer, acting on routine matters in the absence of the employer.

[4]      The applicant asserts in her affidavit that no questions were asked of her by the visa officer about any of the expanded responsibilities that an executive secretary under the definition of that occupation in the CCDO undertakes. This assertion is not contradictal by the respondent. This alone, when coupled with the visa officer's finding that the applicant was qualified as a secretary, is sufficient to require that the decision under review be set aside. The decision, in the words of s.18.1(4) of the Federal Court Act, is perverse, capricious and made without regard to the material before the decision maker.

[5]      There is, in addition, a very fundamental defect in this case. The record that was provided to the Court by the respondent is incomplete. It has been "stripped". Counsel for the respondent states that this occurs because of a "thin file" policy and the difficulty of retaining the full files for all the individuals applying for immigration to Canada in the various embassies abroad. The period of time within which a person can file an appeal from a visa officer's decision is limited. I cannot accept that the administrative burden of retaining the full file for that period of time is onerous.

[6]      I will refer to two examples that demonstrate the incompleteness of the record. The visa officer, in the affidavit she filed in response to the applicant's affidavit, appended thereto a page of hand written notes (hers and the applicant's) created in the course of her interview with the applicant. In her affidavit she states that these demonstrate the applicant's lack of dictation skills and English composition skills. This document, however, is not found in the record that was sent to the Court. It is clearly one of the documents that had been "stripped" therefrom. This raises in any reasonable person's mind the question of what else has been stripped from the file?

[7]      The applicant and the visa officer take quite different positions about whether or not the applicant had had any formal secretarial training. The visa officer in her affidavit asserts:

There is nothing in the officer's CAIPS notes made at the time of the interview to support this assertion. Those notes state " she [the applicant] admitted that it has been a long time since she has had to type. She has not taken a formal typing test recently . . .". The applicant asserts in her affidavit, which was filed before that of the visa officer:

The applicant also asserts that she had provided the visa officer with a notarized copy of her certificate from this course under cover of either a letter dated 17 December 1996 or one dated 21 February 1997. Neither these letters nor the diploma are in the record that was provided to the Court.

[8]      The Court is thus invited to believe that the applicant is not telling the truth when she states that such documents were provided to the visa officer, and that she is not telling the truth when she told the visa officer that she had had formal training. However, the computer entries on the respondent's records demonstrate that more educational documents than those that are now in the record that is before the Court were provided by the applicant to the respondent. In addition, when the applicant first applied for landed immigrant status, she listed on her Application for Permanent Residence form her Diploma in Secretarial Science that she had received in 1980 (for the 1978-79 year). Thus, it is hardly likely that the applicant would have "confirmed" to the visa officer that she had no formal secretarial training.

[9]      There are other similar discrepancies between the applicant's and the visa officer's descriptions of what occurred at the interview. I do not find it necessary to describe them. I think it is sufficient to note that the respondent controls the record that is put before the Court. Thus, any disputes that arise as a result of deficiencies in the record should, in general, be interpreted against the respondent rather than in her favour. Indeed, I think an incomplete record alone could be grounds, in some circumstances, for setting aside a decision under review. The respondent, as one of the parties before the Court, and being in control of how extensive a record is kept of these interviews, has a responsibility to ensure that the Court is provided with a complete and accurate record.

[10]      One way in which visa officers could ensure a more complete file, besides not "stripping" it, would be to photocopy all documents that are brought to them by an applicant at an interview before returning such documents to the applicant. One sees far too often an applicant asserting that documents were taken to the interview and then ignored by the visa officer, while the relevant visa officer asserts that the documents were never presented. Visa officers deal with many applications, one can expect that they will not have as precise a memory of the event as does the applicant. I am not prepared to adopt the approach that counsel for the respondent seemed to be suggesting, that is, that visa officers have no interest in these applications, therefore, their version should be believed when it conflicts with that of an applicant. Once a visa officer's decision is challenged that person has an interest in justifying his or her decision. This is an entirely natural reaction. At that point the visa officer is not a disinterested person.

[11]      For the reasons given the visa officer's decision will be set aside and the applicant's application referred back for reconsideration by different visa officer.

     "B. Reed"

     Judge

Winnipeg, Manitoba

April 29, 1999

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:                  IMM-3587-98

STYLE OF CAUSE:      NASIMA PARVEEN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:              Winnipeg, Manitoba

DATE OF HEARING:              April 28, 1999

REASONS FOR ORDER                 

OF THE COURT:               The Honourable Madame Justice Reed

DATED:                      April 29, 1999

APPEARANCES

Mira Thow      for the Applicant

Lyle Bouvier      for the Respondent

Department of Justice

301 - 310 Broadway

Winnipeg, Manitoba

R3C 0S6

SOLICITORS OF RECORD

Zaifman Associates

5th floor, 191 Lombard Avenue

Winnipeg, Manitoba

R3B 0X1      for the Applicant

Morris Rosenberg

Deputy Attorney General of Canada      for the Respondent