Date: 20101020
Docket: IMM-150-10
Citation: 2010 FC 1027
Toronto, Ontario, October 20,
2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
KARAMJIT SINGH KHATRA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Mr. Karamjit Singh Khatra, is a citizen of India who, in 2004, applied for permanent
residence in Canada under the skilled worker
class. In his application, the Applicant claimed that he had ten years of
experience as a marketing manager with two different employers. In a decision
dated September 23, 2009, a Visa Officer refused his application on the basis
that the Applicant had not met the requirements of s. 75(2)(a)(b)(c) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
Briefly stated, the Visa Officer was not satisfied that the Applicant had met
the minimum requirements for employment in his claimed field of skill as a
marketing manager. The Applicant seeks judicial review of that decision.
[2]
The sole
issue for determination is whether the Visa Officer erred by failing to have
regard to a job letter that specifically set out his duties as a marketing
manager while employed by M.P. Engineering Works.
[3]
The
Officer’s decision is reviewable on the standard of reasonableness. On this
standard, the Court should
not intervene where the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 47). In
addition, the Court may grant relief if it is satisfied that the Officer made
her decision without regard for the material before her (Federal Courts Act,
R.S.C. 1985, c. F-7, s. 18.1(4)(d); see also Kaur v. Canada (Minister of
Citizenship and Immigration) [2008] F.C.J. No. 1468 at para. 33)).
[4]
The letter in
question is dated September 8, 2002 and is typed on letterhead of M.P.
Engineering Works. The letter certifies that the Applicant “is working as a
Marketing Manager in our firm since Dec ‘94” and lists his main job
responsibilities. In the Applicant’s submission, the list of duties set out in
the letter closely correspond to the National Occupation Classification (NOC)
duties for a marketing manager (NOC 0611 – Sales and Marketing Managers). The
Applicant is correct that the Visa Officer’s decision does not make any
reference to this letter. However, I also note that the September 8, 2002
letter is not contained within the Certified Tribunal Record (CTR), raising the
threshold issue of whether the letter was, in fact, sent with the documentation
package to the Visa Officer.
[5]
The onus is on the Applicant to
provide all of the relevant information and documentation to satisfy the Visa
Officer that the application meets the statutory requirements of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and the Regulations.
The burden is also on the Applicant to prove his case in an Application for
Leave and Judicial Review.
[6]
Where, as
here, the CTR does not contain a document or make any reference to such a
document, a bare assertion by the Applicant that the document was sent will not
generally suffice to meet that burden (see, for example, Miranda v. Canada
(Minister of Citizenship and Immigration), 2010 FC 424 at para. 15;
Adewale v. Canada (Minister of Citizenship and Immigration), 2007 FC 1190 at para. 11).
[7]
This raises serious
doubt as to whether the letter was actually included in his application. The
only reference that I have to this letter is contained in the affidavit of the
Applicant. Beyond this bare assertion that the letter was provided, the
Applicant has presented no evidence (such as a copy of a cover letter, fax
confirmation or registered mail receipt) to support his claim that this letter
was in fact sent with the other documents that were received by the Visa
Officer. The Applicant does not even explain when or how the letters were sent.
[8]
The
Applicant argues that, without a sworn affidavit from the Visa Officer, I must
prefer the uncontradicted, sworn evidence of the Applicant (Kiyana v. Canada
(MCI), [2003] F.C.J. No. 193 at para. 17 and 20) (Kiyana) The
Applicant further argues that, in the absence of an affidavit from the Visa
Officer, the Computer Assisted Immigration Processing System (CAIPS) notes are
not available as evidence on the application for judicial review (Shahi v.
Canada (MCI), (2001) [2000] F.C.J. No. 1867 at para 9).
[9]
I agree
that an affidavit from the Visa Officer may be required in certain situations.
An affidavit is required to prove the contents of the CAIPS notes because they
are not admissible as business records. In order to accept the CAIPS notes as
evidence of the facts to which they refer, they must be adopted as the evidence
of the Visa Officer in an affidavit (Kiyana, citing Tajgardoon v.
Canada (M.C.I.), [2001] 1 F.C. 591 (Fed. T. D.) at para. 20).
[10]
However,
in this case, the contents of the CAIPS notes are not in question. In Kiyana,
there was a discrepancy between what was in the CAIPS notes regarding a
conversation the applicant had with the visa officer, and what the applicant’s
version of the conversation was. This is not the situation in the case at bar.
There is no discrepancy between the contents of the CAIPS notes and what the
Applicant has said.
[11]
The case
of Shahi, a case where there was a discrepancy between the contents of
the CAIPS notes and what was said by the Officer to the applicant during the
interview, is not relevant to the facts before me. In the case at bar, the Visa
Officer did not receive the letter, the CAIPS notes make no reference to the
letter, and there is no copy of the letter in the CTR. There is no discrepancy
to clear up.
[12]
The issue
before me is simply whether the Applicant has persuaded me that the letter was
in fact provided to the Visa Officer for consideration. On the facts before me,
I am not persuaded that it was.
[13]
In
conclusion, for the foregoing reasons, the Application for Judicial Review will
be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
- The application for
judicial review is dismissed; and
- No question of general
importance is certified.
“Judith
A. Snider”
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