Date: 19980417
Docket: IMM-2016-97
BETWEEN:
MOHAMMAD ZAKIR HOSSAIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D.J.
[1] This is an application for judicial review of a decision by Visa Officer Jocelyn Armstrong, dated February 19, 1997. In that decision the applicant's application for permanent residence was refused.
Facts
[2] The applicant is a citizen of Bangladesh who has been living in the U.S.A. since 1991. In February 1996, he applied to the Canadian Consulate in New York for permanent residence in Canada and stated that his intended occupation here was as a Sales Promotion Administrator. At the applicant's interview with the visa officer, she advised him that she was unable to award him any points for experience in that category. She further advised him that she was prepared to qualify him for the position of Shoe Store Manager because he had related experience for four years in a shoe store in New York. However, she could not award him any points under this category due to the lack of demand for such a position in Canada.
[3] She also considered his application under the occupation of Sales Promotion Administrator but concluded that the applicant lacked experience in this area and did not qualify.
Issues
| 1. Did the visa officer base her decision on unreasonable grounds which are not supported by the evidence? |
| 2. Did the visa officer breach the rules of procedural fairness as alleged in the Applicant's Memorandum of Fact and Law? |
Analysis
1. Unreasonable Grounds
[4] I see no merit in this submission. The proper test was articulated by Jerome A.C.J. in Lim v. Canada (1989)1:
| |
To succeed, the applicant must do more than persuade me that I might have reached a different conclusion from the assessment. He must satisfy me that, as a result of an error in interpretation of the statute, the visa officer failed to carry out the assessment that was required of him, ... . |
|
[5] In his supporting affidavit the applicant deposed that, in 1991, he worked at Blimpie, a fast food restaurant in New York. He also said that during the course of this employment, he was in charge of sales and marketing for the company. In her affidavit, Visa Officer Jocelyn Armstrong denies that the applicant ever advised her: ... that he was "in charge of sales and marketing for Blimpie Burger store"2. In her affidavit the visa officer further deposes that the applicant did not inform her of the work experience claimed by the applicant in paragraphs 11-14 of his affidavit3.
[6] In paragraph 12 of his affidavit, the applicant deposed that he had been responsible for recommending and approving a sales budget for his employer as well as promoting new products. He states that such documentation is detailed in Exhibit "E" to the affidavit.
[7] The problem with this submission is that such information, documentation as well as Exhibit "E" were not provided to the visa officer prior to her final decision.
[8] The relevant jurisprudence clearly establishes that an applicant for judicial review is unable to rely on evidence that was not before the decision maker4. Accordingly, this submission by the applicant cannot prevail.
2. Procedural Fairness
[9] On this record, I am unable to conclude that the rules of procedural fairness have been breached.
[10] I do not accept the applicant's submission that there is a duty on the visa officer to assist an applicant or to request supplementary information for that applicant. The onus is upon the applicant, rather, to supply the visa officer with all relevant information which may assist him in the discharge of his duties.
[11] It is the duty of a visa officer, before disposing of an application, to advise the applicant, where a negative assessment is contemplated, of that fact, and then provide to the applicant a fair and reasonable opportunity of answering the evidence against him5.
[12] My perusal of this record persuades me that the visa officer complied with the duties imposed upon her by the relevant jurisprudence. The applicant was interviewed on January 16, 1997. The decision was drafted on February 19, 1997. Thus, the applicant had an excess of 30 days within which to provide further information relating to his previous work experience. The record does not contain any supplementary documentation in answer to the concerns of the visa officer.
Conclusion
[13] For the foregoing reasons, the within application for judicial review is dismissed.
Certification
[14] Neither counsel has suggested the certification of a serious question of general importance pursuant to Section 83 of the Immigration Act. I agree that this is not a case for certification. Accordingly, no question is certified.
"Darrel V. Heald"
D.J.
Toronto, Ontario
April 17, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2016-97
| STYLE OF CAUSE: MOHAMMAD ZAKIR HOSSAIN |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: APRIL 16, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HEALD, D.J.
DATED: APRIL 17, 1998
APPEARANCES:
Mr. Yossi Schwartz
For the Applicant
Ms. Diane Dagenais
For the Respondent
SOLICITORS OF RECORD:
Roach, Schwartz & Associates
Barristers and Solicitors
688 St. Clair Avenue West
Toronto, Ontario
M6C 1B1
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980417
Docket: IMM-2016-97
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 [1990] 8 Imm. L.R. (2d) 271. Upheld on Appeal (1991) 12 Imm. L.R. (2d) 161 F.C.A.)
2 Respondent's Application Record - Page 3 - Affidavit of Jocelyn Armstrong - Paragraph 10.
3 Affidavit of Jocelyn Armstrong - Paragraphs 11-14.
4 Compare Lemiecha v. M.E.I. (1993), 72 F.T.R. 29
5 See Muliadi v. Canada (F.C.A.), [1986] 2 F.C. 205
Email this Content