Date: 20071120
Docket: IMM-5773-06
Citation: 2007 FC 1217
Ottawa, Ontario, November 20,
2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
VALLY OLLAH SEPEHRI NODIJEH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Vally Ollah
Sepehri Nodijeh is a citizen of Iran who applied for permanent resident status
in Canada under the New Brunswick Provincial Nominee Program. It is a
requirement of that program that an applicant attend an interview in Canada.
Mr. Sepehri was thus required to apply for, and obtain, a visitor visa. Mr.
Sepehri’s application for a visitor visa was refused, and this application for
judicial review is brought in respect of the decision of a visa officer refusing
Mr. Sepehri’s visa application.
[2] A
single issue is raised by Mr. Sepehri on this application. He asserts that the
reasons of the visa officer for rejecting his application were inadequate. I
find that the reasons were adequate, and the application for judicial review is
therefore dismissed. In dismissing the application, I give no weight to the
affidavit of the visa officer filed in opposition to Mr. Sepehri’s application
because, in my view, the officer’s reasons prepared at the time of the decision
should not be supplemented when the Court is asked to review the adequacy of
the reasons.
[3] Before
turning to the facts of this case, the question of the adequacy of the
officer’s reasons raises an issue of procedural fairness. Two things flow from
that. First, no pragmatic and functional analysis is necessary in order to
determine the applicable standard of review because it is for the Court to
determine what the duty of fairness requires in any case. Second, the content
of the duty to give reasons depends upon the particular context before the
Court. The duty of fairness generally owed to an applicant for a permanent
resident visa has been found to be located towards the lower end of the range.
See: Patel v. Canada (Minister of Citizenship and Immigration) (2002),
288 N.R. 48 (F.C.A.), relying upon Chiau v. Canada (Minister
of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.). The content of
the duty of fairness generally owed to an applicant for a visitor visa can be
no higher, even where the visitor visa is sought in conjunction with a pending
application for permanent residence.
[4] As
to what, at law, constitutes adequate reasons, the general rule is that reasons
are adequate when they fulfill the functions for which the duty to provide them
was imposed. See: Via Rail Canada Inc. v. Lemonde, [2001] 2 F.C. 25 at
paragraphs 21 and 22 (C.A.). In the present context, reasons are required in
order to allow the applicant for the visa to know why his or her request was
denied and to allow consideration as to whether to seek leave and judicial
review of that decision.
[5] Turning
now to the circumstances of the present case, paragraph 20(1)(b) and
subsection 22(1) of the Immigration Refugee Protection Act, S.C.
2001, c. 27 (Act), and sections 179, 191, and 192 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations), together
require that an applicant for a visitor visa establish that he or she will
leave Canada by the end of the period authorized for their stay. In the
present case, the officer found that Mr. Sepehri had not met that requirement.
The officer’s reasons for reaching that conclusion are at issue on judicial
review.
[6] In
that regard, the officer’s Computer Assisted Immigration Processing System
(CAIPS) notes (which, it is well accepted, form part of the officer’s reasons)
record that the officer convoked an interview in order to explore Mr. Sepehri’s
ties to Iran, why he wanted to immigrate to New Brunswick and what his
knowledge of New Brunswick was. The CAIPS notes also record the officer’s
concerns during and following the interview that:
·
Mr. Sepehri was not well established in Iran in that his business
was only a year and a half old, his wife no longer worked outside the home, and
her brother and parents lived in the United States.
·
Mr. Sepehri had admitted to prior dishonest conduct.
[7] On
this basis, the officer was not satisfied that Mr. Sepehri would leave Canada
when required.
[8] In
my view, those reasons, while regrettably meagre, are just sufficient to enable
Mr. Sepehri to know why his application for a visitor visa was refused and
to assess whether proceedings for leave and judicial review should be
commenced. As such, the reasons were adequate.
[9] As
adverted to above, the visa officer swore a brief affidavit in this proceeding
in which he stated that he reviewed the CAIPS notes, that the notes reflect his
recollection and understanding of the file, and that the notes indicate why he
came to his decision. He then, over the next two pages of the affidavit,
explains why the application was refused.
[10] The
affidavit was not egregious in that it did not raise matters that were not
referred to in the CAIPS notes. However, as my colleague Madam Justice
Gauthier recently noted in Jesuorobo v. Canada (The Minister
of Citizenship and Immigration), 2007 FC 1092, section 14 of the
Citizenship and Immigration Canada Operating Manual OP 11 instructs officers
that they “should ensure that case notes in CAIPS are complete and accurate”
and that the notes should “detail the reasons for the refusal”. This reflects
the reality that, in the many months between the making of the decision and the
preparation of the affidavit in proceedings challenging the decision, the
officer will have dealt with numerous other applications. As my colleague
Madam Justice Mactavish observed in bin Abdullah v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 1482 at
paragraph 14, this “would inevitably have had a negative impact on [the
officer’s] ability to recall her precise thought processes” in assessing the
application.
[11] Because
of the instructions given to officers with respect to the need for complete
CAIPS notes, the potential unreliability of evidence that is prepared months
after the decision with the knowledge that the decision is being challenged,
and the unfairness inherent in allowing an officer to supplement their reasons
when the adequacy of the original reasons is at issue, I am of the view that no
weight should be given to the officer’s affidavit.
[12] The
same conclusion was reached by Justice Gauthier in Jesuorobo at
paragraph 12.
[13] The
application for judicial review is therefore dismissed. Counsel posed no
question for certification, and I am satisfied that no question arises on this
record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5773-06
STYLE
OF CAUSE: VALLY
OLLAH SEPEHRI NODIJEH, Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 31, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: NOVEMBER 20, 2007
APPEARANCES:
WENNIE LEE FOR
THE APPLICANT
CATHERINE VASILAROS FOR
THE RESPONDENT
SOLICITORS OF RECORD:
LEE & COMPANY FOR
THE APPLICANT
BARRISTERS & SOLICITORS
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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