Date: 20070215
Docket: IMM-1301-06
Citation: 2007 FC 177
Ottawa,
Ontario, February 15, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
NABEEL ATHAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a
decision of a visa officer dated January 13, 2006, who held that the applicant
failed to meet the criteria under section 75 of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations) to be granted a permanent resident visa under the
skilled worker class.
BACKGROUND
[2]
Nabeel
Athar (the applicant) is a citizen of Pakistan who has recently been
living and working in the United States, with his wife and
children.
[3]
In January 2002, he applied at the Canadian Visa Office in Buffalo for a permanent resident visa as a skilled worker under
NOC 1112 (Financial and Investment Analysts) and NOC 1122 (Management
Consultant). In 2004, his file was transferred to the Detroit Visa Office,
where he was interviewed on May 3, 2004 by Moira Escott (the visa officer).
[4]
In a letter dated January 13, 2006, his application was
denied on the basis that he did not meet the requirements for immigration to Canada under the skilled worker class. Skilled worker applicants
are assessed under the criteria set out at subsection 76(1) of the Regulations.
The visa officer awarded the applicant 10 out of 10 points on the age criteria,
25 out of 25 points for education, 16 out of 24 points for official language
proficiency, and 9 out of 10 points for adaptability. The applicant was awarded
no points for arranged employment or work experience. With a total of 60
points, the applicant fell short of the required 67 points needed to satisfy
the visa officer that he could become economically established in Canada.
ISSUES FOR CONSIDERATION
[5]
This application raises the following issues:
1) Did the
visa officer err by not considering all of the evidence before her?
2) Did the
visa officer err by not stating her concerns to the applicant and providing him
with an opportunity to respond, as per the rules of procedural fairness?
3) Did the
conduct of the visa officer disclose a reasonable apprehension of bias?
STANDARD OF REVIEW
[6]
It
is well established in law that the decision of a visa officer whether or not
to grant a permanent resident visa is a discretionary decision based
essentially on a factual assessment, and should thus be reviewed on a standard
of patent unreasonableness. As the Federal
Court of Appeal held in Jang v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1575,
2001 FCA 312, at paragraph 12:
An application to be
admitted to Canada as an immigrant gives rise to a discretionary decision on the part of a
visa officer, which is required to be made on the basis of specific statutory
criteria. Where that statutory discretion has been exercised in good faith and
in accordance with the principles of natural justice and where reliance has not
been placed upon considerations irrelevant or extraneous to the statutory
purpose, courts should not interfere (Maple Lodge Farms Limited v.
Government of Canada et al [1982] 2 S.C.R. 2 at
pages 7-8; To v. Canada, [1996] F.C.J. No. 696
(F.C.A.).
[7]
However, where concerns are raised over an alleged breach of
procedural fairness, the Supreme Court of Canada has held that the proper
standard is that of correctness (Ellis-Don Ltd. v. Ontario (Labour Relations
Board),
[2001] 1 S.C.R. 221 at paragraph 65). Therefore, if a breach of procedural
fairness is found, the decision must be set aside (Congrégation des témoins
de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R.
650 at 665).
ANALYSIS
1) Did
the visa officer err by not considering all of the evidence before her?
[8]
The applicant first submits that the visa officer erred by
failing to examine the totality of the applicant’s work experience and
confining her analysis to the applicant’s work experience since coming to the
United States.
[9]
The respondent, for his part, asserts that there is a
presumption that the visa officer has considered all the evidence before her
when rendering her decision and that the onus is on the applicant to provide
the necessary information to support his claim.
[10]
The respondent is correct in stating that there is a
presumption, recognized
by the Supreme Court of Canada in Woolaston
v. Canada (Minister of Employment and Immigration), [1973] S.C.R. 102, that the decision-maker considered all of the evidence in the record before
rendering its decision. The Federal Court of Appeal elaborated on this point in
Hassan v. Canada
(Minister of Employment and Immigration),
[1992] F.C.J. No. 946, (1992) 147 N.R. 317, where Justice Heald noted:
The
fact that some of the documentary evidence was not mentioned in the Board's
reasons is not fatal to its decision. The passages from the
documentary evidence that are relied on by the appellant are part of the total
evidence which the Board is entitled to weigh as to reliability and cogency.
[11]
That being said, this is a presumption that is rebuttable,
as demonstrated by the decisions of the Court in cases such as Sheremet v.
Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1247,
2003 FC 987, and Huang v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 184, 2003 FCT 126, where it was found that the visa officer
erred by failing to consider the totality of the applicant’s work experience.
[12]
In her affidavit, the visa officer admits to putting
greater emphasis on the recent employment of the applicant as a financial
analyst while in the United States. Her reasoning was that it would be easier for the applicant to describe
his most recent employment as a financial analyst and provide evidence of paid
employment while in the United States, that it would be with regards to his
work in that area while in Pakistan. As the visa officer was not satisfied, based on the applicant’s
responses during the interview, that he was an experienced and knowledgeable
financial analyst, she asked that the applicant provide her with proof of paid
employment as a financial analyst. The Computer Assisted Immigration Processing
System (CAIPS) notes also reflect that she did consider the letters provided by
the applicant from former employers in Pakistan, but was not satisfied that they were credible evidence that the
applicant possessed the experience claimed as a financial analyst.
[13]
In light of the CAIPS notes and the explanation provided by
the visa officer in her affidavit, I am satisfied that the presumption that the
visa officer considered all the evidence submitted has not been rebutted in the
present case.
2) Did the visa officer err by not stating her concerns to
the applicant and providing him with an opportunity to respond, as per the
rules of procedural fairness?
[14]
The applicant also submits that he was denied procedural
fairness as he was not provided with an opportunity to address the visa
officer’s concerns regarding his work experience. He notes that while the onus
was on him to provide sufficient information to the visa officer, if she had
specific concerns that could impact negatively on the application, than
procedural fairness required that the applicant be given an opportunity to
respond to these concerns. Furthermore, the applicant suggests that the visa
officer failed to actively interview him on his work experience so that he
might alleviate her concerns by providing additional information.
[15]
On the issue of procedural fairness, the respondent submits
that the onus is on the applicant to provide the necessary information to
support his claim and that a visa officer has no obligation to notify an
applicant about concerns that the applicant might not meet the requirements and
allow the applicant the opportunity to respond to those concerns. Nevertheless,
the respondent suggests that the visa officer asked for more information on a diploma
she believed to be fraudulent, and also asked the applicant to provide proof of
paid employment as a financial analyst, which was not provided.
[16]
In Madan v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 1198, (1999)
172 F.T.R. 262, Mr. Justice John M. Evans stated at paragraph 6:
It is well established
that it is the responsibility of the visa applicant to put before the officer
all the material necessary for a favourable decision to be made. Hence, visa
officers are under no legal duty to ask for clarification or for additional
information before rejecting a visa application on the ground that the material
submitted was insufficient to satisfy the officer that the applicant had met
the relevant selection criteria.
[17]
That being said, there may still be a duty on the part of a
visa officer, in certain situations, to provide an applicant with the
opportunity to respond to his or her concerns, in accordance with the rules of procedural
fairness. As noted by Mr. Justice Richard Mosley in Hassani v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 1597,
2006 FC 1283:
¶
21
The case law is not clear regarding when a visa officer's concerns must be put
to the applicant where those concerns are based on the information submitted by
the applicant to the visa officer. For example, in Hussain v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 468, [2002] F.C.J. No. 596
at paras. 35-37 (QL) [Hussain], the Court addressed whether the visa
officer had breached his duty of fairness by failing to raise his alleged
concerns with the applicant about the applicant's personal suitability and/or
his English language fluency, and by failing to provide the applicant with an
opportunity to address any such concerns. The Court found that the officer was
not required to put before the applicant any tentative conclusions he might be
drawing from the material. The Court noted that the visa officer was merely
assessing the information provided to him by the applicant as he must do in
order to reach a decision. The Court highlighted that the burden is on the
applicant to prove that he has a right to come to Canada. This approach was
also taken by the Court in Bellido, above, at para. 35.
¶ 22 In Liao v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1926
(QL) [Liao], however, the Court took a different approach, noting:
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¶ 15 Visa
officers have the duty to give an immigrant the opportunity to answer the
specific case against him. This duty of fairness may require visa officers to
inform an applicant of their concerns or negative impressions regarding the
case and give the applicant the opportunity to disabuse them.
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...
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¶ 17
However, this duty to inform the applicant will be fulfilled if the visa
officer adopts an appropriate line of questioning or makes reasonable
inquiries which give the applicant the opportunity to respond to the visa
officer's concerns ...
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In reaching the above conclusion, the Court in Liao
did not lose site of the fact that the ultimate burden of proof rests on the
applicant. The Court looked to the questions asked by the officer and the
information provided to her, before finding that her conclusion was reasonably
open to her.
¶ 23 In Rukmangathan
v. Canada (Minister of Citizenship and Immigration), 2004 FC 284, [2004] F.C.J. No. 317
(QL) [Rukmangathan], the Court offered the following guidance in
determining what is required of a visa officer when different types of concerns
arise:
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¶ 22 ...
the duty of fairness may require immigration officials to inform applicants
of their concerns with applications so that an applicant may have a chance to
"disabuse" an officer of such concerns, even where such concerns
arise from evidence tendered by the applicant. Other decisions of this court
support this interpretation of Muliadi, supra [Muliadi v. Canada (Minister of
Employment and Immigration), [1986] 2 F.C. 205
(C.A.)]. See, for example, Fong v. Canada (Minister of Employment and
Immigration), [1990] 3 F.C. 705
(T.D.), John v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 350
(T.D.) (QL) and Cornea v. Canada (Minister of Citizenship and Immigration)
(2003), 30 Imm. L.R. (3d) 38
(F.C.T.D.), where it had been held that a visa officer should apprise an
applicant at an interview of her negative impressions of evidence tendered by
the applicant.
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¶ 23
However, this principle of procedural fairness does not stretch to the point
of requiring that a visa officer has an obligation to provide an applicant
with a "running score" of the weaknesses in their application:
Asghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091
(T.D.) (QL) at para. 21 and Liao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1926.
And there is no obligation on the part of a visa officer to apprise an
applicant of her concerns that arise directly from the requirements of the
former Act or Regulations: Yu v. Canada (Minister of Employment and
Immigration) (1990), 36 F.T.R. 296, Ali
v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1 and
Bakhtiania v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1023
(T.D.) (QL).
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[18]
From his review of the recent jurisprudence, Justice Mosley
concluded that:
¶ 24 Having
reviewed the factual context of the cases cited above, it is clear that where a
concern arises directly from the requirements of the legislation or related
regulations, a visa officer will not be under a duty to provide an opportunity
for the applicant to address his or her concerns. Where however the issue is
not one that arises in this context, such a duty may arise. This is often the
case where the credibility, accuracy or genuine nature of information submitted
by the applicant in support of their application is the basis of the visa
officer's concern, as was the case in Rukmangathan, and in John
and Cornea cited by the Court in Rukmangathan, above. [emphasis
added]
[19]
As there is no transcript of the interview, it is
impossible to know exactly what concerns may have been expressed by the visa
officer and how actively the visa officer questioned the applicant. However,
from the CAIPS notes, it is reasonably clear that the visa officer did question
the applicant with regards to his employment, asking about the number of
employees in his company, the work he has done since arriving in the United States and the name of some of his clients. Under
the circumstances, I am satisfied that the visa officer’s approach in
conducting the interview was adequate. As noted by Madam Justice Carolyn
Layden-Stevenson in Verma v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 218, 2003 FCT 136 at paragraph 12: “The obligation of the
visa officer is to conduct and interview, not an inquisition”.
[20]
The visa officer also rejected the documentary evidence
submitted by the applicant, namely the various letters from past employers, as
not providing the necessary evidence of paid employment. Based on her comments
in the CAIPS notes that these references were provided by “co-ethnics”, which
she later explained in her affidavit as a way of expressing her concern that
these letters might have been provided by friends and/or acquaintances and thus
might not be bona fide, it would not be unreasonable to conclude that
she rejected these letters because she thought they contained false evidence of
work experience. Such a conclusion would clearly fall within the category of “credibility, accuracy or
genuine nature of information”, identified by Justice Mosley in Hassani, above, as giving rise to a duty on the part of the
visa officer to inform the applicant of her concern and provide him with an
opportunity to respond.
[21]
In his affidavit, the applicant maintains that he was never
informed of the visa officer’s doubts with regards to the genuineness of the
reference letters submitted in support of his claim of work experience as a
financial analyst. The visa officer for her part maintains that she did inform
the applicant that such letters of reference were not considered reliable or
conclusive evidence of paid employment as a financial analyst, which is why she
requested that the applicant provide evidence of payment of compensation.
[22]
The CAIPS notes following the interview do mention the visa
officer’s conclusion that the applicant had failed to provide evidence of paid
employment and that he was given a list of documents required in order to
proceed with his application. Subsequently, the applicant submitted additional
letters from various companies in the United States, which also failed to convince the visa officer that he had been employed
as a financial analyst. It is with regards to these documents that she recorded
her comment that these were “all letters f[ro]m co-ethnics” which, as she
explained in her affidavit, raised doubts as to their credibility. What is also
interesting is that the visa officer recognized in the CAIPS notes that she had
a duty to inform the applicant of concerns regarding the veracity of documents,
as she wrote “procedural fairness requires subj[ect] to be advised that it is
my opinion he has provided false doc[ument]s in support of app[lication] and be
given opportunity to respond”. In my view, the applicant was informed during
the interview of the visa officer’s concerns regarding the veracity of the documents
initially provided in support of his work experience. While it is true that the
visa officer did not follow-up with the applicant after receiving the
additional documents, I do not think that the visa officer had an obligation to
keep following-up with the applicant as long as she was not satisfied that he
had provided the documents she requested.
[23]
Regarding the applicant’s education credentials, the visa
officer also concluded that he had submitted fraudulent education documents,
something which the applicant strongly denies. After recording this concern in
her CAIPS notes, the visa officer sent an official letter to the applicant
informing him of her belief that one of his diplomas was fraudulent and giving
him an opportunity to respond before a final decision was rendered. Meanwhile,
the visa officer proceeded with her own investigation of the document in
question, including a request for verification sent to the Islamabad office. The applicant provided further
information in support of the legitimacy of the diploma in question and, despite
her conclusion in the CAIPS notes that he did not possess the education
experience claimed, she still awarded full points for education, a decision
which she explains in her affidavit was due to the absence of any evidence that
the document was in fact fraudulent, as the Islamabad office had a back log and
could not process her request for verification in a timely manner.
[24]
The visa officer expressed serious concerns regarding the
applicant’s alleged work experience, as she was not convinced that the
applicant was actually doing the job of a financial analyst that he claimed to
be doing in the United States.
Since she had serious concerns regarding the applicant’s credibility, she asked
that he provide proof of paid employment, specifically evidence of payment of
compensation, for his most recent employment in the United
States, which he failed to do. The applicant’s failure to provide
the requested proof of compensation simply confirmed the visa officer’s initial
conclusions regarding his lack of relevant work experience as a financial
analyst.
[25]
In this situation, we can ask ourselves: What else should
the visa officer have done? Should she have kept on asking the applicant over
and over for proof of paid employment until she received the documents she had
requested during the interview? In my view, such an approach would have gone
far beyond the requirements of procedural fairness identified in Rukmangathan and Hassani, above.
[26]
It is my belief that the applicant was informed of the visa
officer’s serious concerns regarding the credibility of the evidence submitted
in support of his work experience. The applicant however failed to address the
concerns expressed by the visa officer and to satisfy her that he had the
necessary experience as a financial analyst. There was no obligation on the
part of the visa officer to ask again and again for proof of paid employment,
as such an approach would lead to a reversal of the onus of proof in
applications for a permanent resident visa.
[27]
Therefore, I conclude that the visa officer did not breach
the duty of fairness owed to the applicant.
3)
Did the conduct of the visa officer disclose a reasonable apprehension of bias?
[28]
Finally, the applicant submits that the visa officer’s
conduct during the interview and the CAIPS notes demonstrate a reasonable
apprehension of bias. In her affidavit, the visa officer denies that she was
discourteous or biased, and emphasizes that she conducted herself
professionally and without any bias or negativity towards the applicant.
[29]
In my view, the suggestion that the conduct of the visa
officer discloses a reasonable apprehension of bias should be rejected. While
the visa officer’s choice of words when referring to “letters from co-ethnics”
may be questionable, it is not sufficient to disclose a reasonable apprehension
of bias. In fact, the visa officer challenged most of the documents coming not
only from Pakistan, but also from the United States, on the basis that they were not
credible, and also rejected the applicant’s testimony as being vague.
[30]
Furthermore, reasonable apprehension of bias is a serious
allegation and the test that must be met, as set out in Committee for
Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at
394-395, is a difficult one, as the applicant must demonstrate that an informed person, viewing
the matter realistically and practically, and having thought the matter
through, would conclude that the visa officer’s action give rise to a
reasonable apprehension of bias. Here, while the applicant makes a number of
allegations regarding the visa officer’s conduct during the interview,
these allegations are contradicted by the visa officer, whom the applicant
chose not to cross-examine on her affidavit.
[31]
The applicant having failed to demonstrate that a reasonable
apprehension of bias exists, this argument must be dismissed.
[32]
Therefore, for all of the above reasons, the application
for judicial review is dismissed.
[33]
No questions were submitted for certification.
JUDGMENT
1.
The
application for judicial review is dismissed;
2.
No
questions for certification.
“Pierre Blais”
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