Hamid v. Canada (Minister of Citizenship and Immigration), docket IMM-183-97

     IMM-183-97

BETWEEN:

     TARIQ HAMID

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD J.

         The applicant seeks judicial review of a decision of Marlene Edmond, Immigration Officer, Canadian Consulate General in New York, dated November 29, 1996, in which she determined that the applicant did not meet the requirements for immigration to Canada in the Assisted Relatives Class.

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         The applicant states that he has obtained a secondary school certificate, and that he has also completed an 18-month course in Loom fixing at the Khalid Weaving Industries Training Institute. He also maintains that he worked at Khalid Saeed Industry from 1979 to 1988, where he says that his job description was more or less as a "trouble-shooter". His duties allegedly consisted of patrolling the work area, verifying labourers' work, repairing any breakdown in machinery, and generally maintaining the proper running of the equipment. He adds that the company manufactured cloth products such as Khasha and Papleen, and a mixture of cotton and nylon threads.

         In her decision, the immigration officer explained that the applicant had been assessed based on the requirements for a Loom fixer, and that he had obtained zero units for the experience factor. The visa officer was of the opinion that there was no credible evidence that the applicant had obtained the required training or work experience as a Loom fixer (CCDO 8584-114), and that he thus fell within the inadmissible class of persons described in paragraph 19(2)(d) and subsection 9(3) of the Immigration Act. His application was, therefore, refused.

         The immigration officer gave a breakdown of the applicant's assessment as an assisted relative pursuant to subsection 10(1) of the Immigration Regulations, as follows:

Age                  10

             Occupational Demand          10

S.V.P.                  15

             Experience              00

             A.R.E.                  00

             Demographic Factor          08

             Education              10

             English                  06

             French                  00

             Bonus (brother)          05

             Suitability              05

             TOTAL              69

The immigration officer further explained that subsection 11(1) of the Immigration Regulations does not permit the issuance of an immigrant visa to an applicant who has not been assessed any units for the experience factor and who has not arranged employment in Canada.

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         The applicant argues that the immigration officer erred in ignoring his evidence that he had the required training and work experience as a Loom fixer, and that she also breached her duty of fairness toward him when she failed to allow him the opportunity to respond to her credibility concerns.

         The primary fact finder has the opportunity to assess the claimant's demeanour, reactions, and responses to questions put to him or her. Mr. Justice Décary held in Aguebor v. Canada (M.C.I.) (1993), 160 N.R. 351, at page 316, that the tribunal is in the best position to evaluate a claimant's credibility:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision my be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.1

         It has also been held that a negative finding of credibility can be extended to all relevant evidence drawn from the testimony (see Sheikh v. Canada (M.E.I.) (1990), 11 Imm.L.R. (2d) 81 (F.C.A.)).

         It is well established that the onus is on the applicant to fully satisfy the visa officer of the existence of all of the positive ingredients in his or her application. Accordingly, provided that the visa officer has not acted unfairly, and/or has not made an error of law apparent on the face of the record in arriving at his or her decision (such as considering extraneous criteria not contained in the CCDO definition), that decision is entitled to a significant amount of curial deference (see Hajariwala v. Canada, [1989] 2 F.C. 79 (F.C.T.D.)).

         In this instance, the applicant was unable to respond anything to the officer other than to repeat that he "fixed machinery", and he was unable to provide a reasonable explanation to her concerns. In light of all of the evidence, I am of the opinion that the applicant has not met the burden of proof to show that the immigration officer's conclusions were unreasonable.

         I also find that the immigration officer did not breach the principles of natural justice, since the evidence shows that she informed the applicant of her credibility concerns, gave him the opportunity to disabuse her of those concerns, and would have accepted further evidence regarding credibility.

         For all the above reasons, the application for judicial review is dismissed.

OTTAWA, Ontario

October 24, 1997

                                

                                         JUDGE

__________________

     ¹      See also Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.).