Date: 20071109
Docket: IMM-2079-07
Citation: 2007 FC 1169
Ottawa, Ontario, November 9,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
SEMIRAMISS ZIAEI
HOSSEIN
SALMANY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, Semiramiss Ziaei, a female Iranian citizen, was denied a permanent
resident visa by a Visa Officer at the Canadian Embassy in Damascus, Syria. Her
application was based on the “skilled worker” category, as a nurse/medical
technologist.
The other Applicant
was her husband whose visa application was based substantially on that of
Semiramiss Ziaei. For ease of reference, Semiramiss Ziaei is referred to in
these Reasons as the Applicant.
[2]
Despite
the forceful arguments of the Applicant’s counsel, I am persuaded that there
has not been any denial of natural justice or error of fact and law which
justifies the Court’s interference with the Visa Officer’s decision.
II. BACKGROUND
[3]
The
application process commenced on December 27, 2001; however, for reasons not
germane to this judicial review, the application commenced progressing in
September 2006 when the Applicant filed additional supporting documents
updating her situation.
[4]
On
November 26, 2006, the Canadian Embassy wrote to the Applicant requesting her
International English Language Testing System (IELTS) results, a supplementary
form for her spouse, and proof of relationship and residence of her uncle in Canada, Abbas
Pakseresht, whose involvement in this judicial review is discussed later in
these Reasons.
[5]
The
IELTS results and documentation concerning her uncle were filed; the
supplementary form for her spouse was not.
[6]
The
Applicant’s file was initially reviewed on March 25, 2007 and then referred to
the Visa Officer for final decision. The visa was denied, by letter of April 2,
2007, because the Applicant received 62 points under the assessment criteria,
less than the 67 points required for a visa.
[7]
The
key areas of dispute on the facts are that the Applicant only received five out
of 10 points for adaptability, six out of 24 for language proficiency and 0
points for arranged employment.
[8]
The
refusal letter did not provide details of the points assessed; it simply said
that the Applicant had failed to obtain the minimum number of points required
and therefore the Visa Officer was “not satisfied that you meet the
requirements of the Act and the Regulations for the reasons explained above”.
The details in the CAIPS Notes were not provided.
[9]
The
CAIPS Notes contained a little more detail but not much more in respect of the
final decision. Of importance to the Applicant was the initial assessment where
the CAIPS Notes show a points total of 58 before assessment of language skill
or adaptability. As to adaptability, the CAIPS Notes indicate that the
Applicant was asked to provide proof of the relationship with and residency of
her uncle.
[10]
The
relevancy of the initial assessment, as argued by the Applicant, is that in the
final decision, the Applicant should have started with the 58 points assessed
initially and have added to the points total the five points for adaptability
and six points for language resulting in a score of 69 points.
[11]
The
Applicant has raised two issues:
·
whether
the Visa Officer erred in the points assessment; and
·
whether
there was a breach of procedural fairness in failing to provide detailed
reasons.
[12]
The
Respondent has raised the issue of the admissibility of the affidavit of the
Applicant’s uncle, Abbas Pakseresht.
III. ANALYSIS
A. Admissibility
of Evidence
[13]
The
two affidavits of Mr. Pakseresht would, in many other proceedings, be struck
out on the basis that they are largely irrelevant, argumentative and contain
(to the extent that they deal with potentially relevant matters) evidence which
was not before the Visa Officer. The affidavits are replete with hearsay.
[14]
The
affidavits were no doubt created because of a sincere concern for the welfare
of Mr. Pakseresht’s niece but there is no apparent justification in terms of
“necessity and reliability” which would overcome the usual rules of evidence.
[15]
However,
rather than strike the affidavits, the Court will simply take cognizance of
that which is relevant and place little or no weight on the evidence which is
opinion or argument or irrelevant.
B. Error
in Points Assessment
[16]
The
standard of review for this aspect of the Visa Officer’s function is patent unreasonableness
where there is an element of discretion involved in the points calculation. I
concur with the approach of Justice Blanchard in Silva v. Canada (Minister of
Citizenship and Immigration), 2007 FC 733 and the cases referred to in
his decision. Moreover, in this case, the number of points to be awarded in
each category at issue is prescribed by regulation. As such, the Visa Officer
has no discretion and therefore the points awarded must be correct in that they
must be those mandated by regulation.
[17]
Having
received the language test results (IELTS), the regulations direct the points
to be awarded in accordance with those results. Similarly, the points for
“arranged employment” are prescribed – in this case, there was no evidence of
arranged employment. Under “adaptability” the Applicant received the maximum
number of points available in her circumstances, having a relative in Canada.
[18]
Therefore,
there is no basis for challenging the points awarded in the final decision. The
Applicant’s reliance on the initial score of 58 points is misplaced as this was
not the thorough and detailed assessment required. The detailed assessment and
thus the final decision is the responsibility of the Visa Officer. In this
case, that initial assessment is irrelevant. There is nothing to suggest that
in some manner the initial assessment was the correct assessment and that the
final negative assessment was created for some ulterior purpose or based on
some improper consideration.
C. Absence
of Reasons
[19]
The
Applicant tried strenuously to establish that the final decision letter was
unfair in that it was not sufficiently detailed and strayed from the format of
such letters which are described in a departmental operations manual.
[20]
Firstly,
the operations manual is a guide, not a dictate or regulation. Secondly, the
departure in the wording of the decision letter is not a significant departure
from that in the manual.
[21]
It
is well recognized that the visa decision letter may not contain all of the
reasons for a decision. For that reason, the CAIPS Notes form an integral part
of the reasons.
[22]
The
Applicant complains that she did not receive the full reasons or detailed
reasons. However, the Applicant never requested more detailed reasons. The
absence of full reasons could affect a party at the Leave Application stage
since the Certified Tribunal Record is not produced until Leave is granted.
Therefore, it is incumbent on an applicant to request further and better
reasons and more particularly the CAIPS Notes.
[23]
In
this case, the decision letter contained more than sufficient details for the
Applicant to know the basis upon which and the reasons for the refusal to grant
the permanent residence visa. The CAIPS Notes provide little, if any, germane
evidence.
[24]
The
Applicant’s reliance on such decisions as Kidd v. Greater Toronto Airports
Authority, [2004] F.C.J. No. 859 (QL), aff’d [2005] F.C.J. No. 377 (QL),
and Public Service Alliance of Canada v. Canada (Attorney
General),
2004 FC 1739 is misplaced. Both are cases involving the Canadian Human Rights
Commission in which there was no process such as the CAIPS Notes to flesh out
the reasons for a decision. Whether there is a breach of fairness in terms of
the existence of full reasons requires a consideration of the context and all
of the circumstances including the provision of additional information by the
decision maker.
[25]
In
this regard, I adopt the following comments of Justice Barnes in Wang v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1298 at paras. 19 and 21-22:
The adequacy of a given set of reasons for an
administrative decision must be assessed in context: see Via Rail Canada
Inc. v. Canada (National Transportation Agency), [2000] F.C.J. No. 1685,
[2001] 2 F.C. 25 (C.A.)
at para. 21. The Court must give due regard to the nature and significance of
the decision and to appropriate concerns about administrative efficiencies and
costs. This point is well made in the case of Khan v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 1699,
2001 FCA 345 at paras.
31-32 […]
The Applicant complains, however, that the
refusal letter was deficient because it did not contain the reasons for the
visa refusal. She argues that there is a legal duty on the Respondent to
provide its CAIPS notes along with the refusal letter. I do not agree. The
Applicant's counsel was aware that CAIPS notes to support the refusal decision
are typically available because he had successfully requested those notes in connection
with the first refusal decision. Inexplicably, he failed to request those same
notes before initiating this application for judicial review. At that point,
the CAIPS notes were provided to the Applicant by the Respondent in compliance
with [the Federal Court Immigration and Refugee Protection Rules, r. 9].
CAIPS notes have been accepted as a constituent
part of an administrative decision: see Kalra v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1199,
2003 FC 941 at para.
15, and Toma v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1000,
2006 FC 779 at para.
12. In this case, the CAIPS notes provide additional detail to the formal
decision letter and are clearly sufficient to inform the Applicant of the
reasons for the refusal of a visa. It is not open to the Applicant to complain
that the CAIPS notes were not provided in advance of the initiation of this
application because her counsel failed to request them at an earlier stage: see
Hayama v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1642,
2003 FC 1305 at para.
14 and Liang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1301
at para. 31:
[31] However, in my opinion, the duty of
fairness normally only requires reasons to be given on the request of the
person to whom the duty is owed and, in the absence of such a request, there
will be no breach of the duty of fairness.
[26]
Finally,
on this point, since the points awarded are prescribed by regulation, there is no
need for a Visa Officer to provide more details – there is nothing more to
explain.
IV. CONCLUSION
[27]
For
these reasons, this application for judicial review will be dismissed. There is
no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be dismissed.
“Michael
L. Phelan”
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