Date: 19990603
Docket: IMM-2202-98
BETWEEN:
WANG JING YAN
Applicant
- and -
(MINISTER OF CITIZENSHIP AND IMMIGRATION)
Respondent
REASONS FOR ORDER
CULLEN, J.:
[1] The applicant challenges by way of judicial review the written decision made by Vice-Consul Gregory Chubak, of the Canadian Consulate, Hong Kong, on 3 March 1998. The decision rejected the applicant"s application for permanent residence as a member of the independent category in Canada. The applicant seeks an order setting aside the written decision and reinstating a positive assessment verbally communicated to the applicant at the conclusion of his interview; or, in the alternative, an order directing that the application be reassessed.
[2] Background
The applicant applied for permanent residence in 1996. He attended the Canadian Consulate in Hong Kong on 2 March 1998 for an interview and assessment. He was assessed in the occupation of pastry chef. At the end of the interview, the applicant contends that he was told by Mr. Chubak that he had received a "positive assessment" and the visa officer wished him luck, stating, "I hope you can find a good job in Canada soon, so that you can sponsor your wife" (applicant"s application record, tab 2, affidavit of Wang Jing Yan, para. 4). However, on 10 April 1998, the applicant and his wife received notice of the visa officer"s written decision denying the applicant"s application. The letter stated that the applicant had amassed 59 units of assessment, some 11 units short of the requisite statutory minimum of 70.
[3] In support of this application for judicial review, the applicant submitted an affidavit which attests to what transpired at the close of his interview with the visa officer. The respondent, however, has not submitted an affidavit by the visa officer, nor has the applicant been cross-examined on his affidavit. Thus, the applicant"s version of events stands unchallenged and uncontradicted by the respondent. The respondent has submitted only an affidavit made by an articling student, with the visa officer"s CAIPS notes attached as an exhibit (respondent"s record, tab 1).
[4] Applicant"s Position
The applicant submits that the only evidence of what transpired at the interview is the evidence set out in his affidavit, which is not rebutted by the respondent"s affidavit, and thus there is no evidence to the contrary. While the visa officer"s CAIPS notes are attached as an exhibit to an articling student"s affidavit, the student merely identified the notes and could not have deposed to the truth of their contents. The applicant relies on the decision in Gaffney v. Canada (MEI) (1991), 12 Imm.L.R. (2d) 185 (F.C.A.) in support of this contention.
[5] The applicant submits that the visa officer"s remarks at the conclusion of the interview constitute the relevant decision, and that the subsequent written negative assessment breached the principles of natural justice and procedural fairness.
[6] Respondent"s Position
The respondent submits that the CAIPS notes indicate three things. First, the applicant was advised at the interview that his employment letters appeared suspect. Second, the applicant was provided with medical forms "at risk." Third, the applicant was advised at the conclusion of the interview that the visa officer would review the application, verify the documents submitted, and consider whether the applicant satisfied the job requirements he was applying under.
[7] The respondent also submits that the applicant merely misinterpreted the visa officer"s comments and actions as acceptance. The respondent contends that there is no indication that the visa officer approved the application at the conclusion of the interview. The CAIPS notes do not indicate that he informed the applicant that he received a positive assessment.
[8] The respondent contends that an affidavit from the visa officer is unnecessary, and relies on the decision of Mr. Justice Dubé, of this Court, in Moskvitchev v. Canada (MCI) (IMM-70-95, 21 December 1995). That decision concerned a Post Determination Refugee Claimants in Canada case. The Court held that it was unusual for a tribunal to explain or enlarge upon a decision under review, and that there is a presumption that the tribunal considered all of the documents before it. This decision, clearly, is not of assistance to the respondent in the instant case.
[9] The respondent also relies on the decision of Madame Justice Simpson in Baker v. Canada (MCI) (1995), 101 F.T.R. 110 (T.D.), in which the Court held that the lack of an affidavit by the Chief of Removals was not fatal. The case history notes, prepared by another officer, were tendered as evidence. The Court held that in the absence of evidence to the contrary, it is to be presumed that the humanitarian and compassionate grounds decision was made properly. Again, this case is of no assistance to the respondents because in this case there is evidence to the contrary in the form of the applicant"s uncontradicted affidavit.
[10] The respondent also argues that the visa officer was not functus officio by virtue of any communications at the close of the interview. His comments did not operate so as to amount to a decision, and it was open to him to make the decision denying the application.
[11] Analysis
The visa officer whose decision is being challenged has not filed an affidavit indicating his reasons or describing what transpired at the interview. The applicant, however, has filed an affidavit which sets out his version of the conclusion of the interview. This evidence is uncontradicted as the respondent has not cross-examined the applicant or filed an affidavit which effectively challenges the applicant"s allegations. While the respondent is correct in contending that the visa officer"s CAIPS notes do not indicate that he gave a positive assessment to the applicant at the close of the interview, they also do not indicate anything to the contrary on that particular point.
[12] In Wang v. Canada (MEI), [1991] 2 F.C. 165 (F.C.A.), the Federal Court of Appeal dealt with the evidentiary value of a visa officer"s notes which were attached as an exhibit to the affidavit of another visa officer, who did not conduct the interview. Justice Mahoney held,
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The second matter is fundamental. It is, in substance, an appeal against the order excluding the visa officer"s memorandum from evidence. The respondent argues that, because of the inconvenience of arranging depositions by visa officers who, by definition, are outside Canada, the Court ought to accept their notes and memoranda as proof of the truth of their contents even though no affidavit averring to that truth is filed. In this, as in some of the other appeals dealt with serially, the visa officer concerned produced notes made during the interview and/or a memorandum made considerably later setting forth his recollection. These were produced as exhibits to the affidavit of an immigration officer in Canada who had reviewed the pertinent file and selected material considered relevant to the proceeding in Court. |
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I see no justification for deviating from evidentiary norms in these circumstances. No legal basis for acceding to the respondent"s argument has been demonstrated and, in my opinion, it is devoid of a practical basis. In the first place, unless the error said to vitiate the decision appears on the face of the record, the intended immigrant also, by definition, outside Canada must depose to his or her evidence and, unlike the visa officer, may not be conveniently located to do so. There is no justice in according one witness to the proceeding an opportunity to present evidence in a manner that precludes it being tested by cross-examination. In the second place, the suggestion of administrative inconvenience seems flimsily based. Given that the visa officers normally inhabit premises in which may be found other functionaries before whom affidavits acceptable in Canadian courts may be sworn, there seems no practical reason why his or her version of the truth cannot, with equal convenience, be produced in affidavit as in memorandum form. Finally, should a disappointed applicant wish to inconvenience a visa officer by cross-examination there is the sanction that the right will have to be exercised, at least initially, at some considerable expense to the applicant |
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[13] A line of case law has followed this decision, in which the evidentiary value of a visa officer"s notes put into evidence by way of a third party has been discounted: Fung v. Canada (MEI) (1991), 121 N.R. 263 (F.C.A.); Gaffney v. Canada (MEI) (1991), 12 Imm.L.R. (2d) 185 (F.C.A.); Qiu v. Canada (MCI) (IMM-2715-96, 16 May 1997) (T.D.); Ayubi v. Canada (MCI) (1997), 38 Imm.L.R. (2d) 276 (T.D.); and Patel v. Canada (MCI) (IMM-829-98, 5 October 1998) (T.D.).
[14] In the absence of a sworn affidavit by the visa officer attesting to the conduct of the interview, the only evidence before the Court on this point is the applicant"s affidavit which indicates that the visa officer made a positive assessment and wished him luck finding a job in Canada. Given the lack of contradiction, the applicant"s version of events must be presumed to be true.
[15] The visa officer"s decision rejecting the applicant"s application for permanent residence is set aside and the matter is referred back to be reassessed by a different visa officer. At the conclusion of the hearing, counsel discussed amongst themselves submitting a question for certification; however, no question of general importance was offered for certification by either counsel at the conclusion of the hearing.
Ottawa, Ontario B. Cullen
June 3, 1999
J.F.C.C.
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