Date: 20030213
Docket: IMM-5822-01
Neutral citation: 2003 FCT 164
OTTAWA, ONTARIO, THIS 13th DAY OF FEBRUARY, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
HAMIDREZA MIRZAII
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Mr. Hamidreza Mirzaii (the "Applicant") seeks judicial review of the decision of Visa Officer Timothy Bowman (the "Visa Officer") dated November 21, 2001. By this decision, this Applicant's application for a student authorization to enter Canada was refused.
[2] The Applicant is an Iranian citizen. He sought authorization to enter Canada as a student, specifically to follow a course in computer programming and submitted his application for a visa on October 28, 2001.
[3] On November 21, 2001, the Applicant was interviewed in Tehran, Iran by a Ms. Taheri, a locally hired Immigration Program Officer associated with the Canadian Embassy in Tehran. Ms. Taheri made entries in the Computer Assisted Input Program System ("CAIPS") on November 21, 2001, as follows:
Previous travel: since 10 years ago no evidence
Y Cda: to study English and to continue 2 year Computer Programmer Diploma
Can not speak English
Expenses: self and mother
has acceptance from Seneca College
Property one apt under his name in Tehran - brought the doc , receives
monthly converted $ Cdn 600
Income: says that does not work - is university student in Yazd Azad
University - Metalurgical Eng. 1st term- says that does not like the course
and would like to learn Computer
Says that was not accepted for Computer Science
Property of mother: one houes [sic] under her name in Tehran-brought the doc
Savings of mother: has converted $ Cdn 24,000/ - brought the doc
Says that mother has 89, 000/ - Pounds in UK - but statesman is belonged [sic] to the year 1996
Savings: 10, 000 Cdn $ under the name of Ms. Parvizian in Trust of Applicant
Do you have any relative Cda? the son of step brother of his grandmother
[4] The file relating to the applicant, including these CAIPS notes, was referred to the Visa Officer. According to his affidavit filed in this proceeding, the Visa Officer reviewed the information collected by Ms. Taheri and made a decision, refusing the application for the student authorization. The Visa Officer also made an entry in the CAIPS notes on November 21, 2001, as follows:
REVIEWED: NOT SATISFIED SUBJ'S STUDY PLANS ARE REASONABLE. THINK WOULD REMAIN IN CDA ILLEGALLY. REFUSED
[5] The Applicant now seeks to quash this decision. First, he argues that the decision was made in breach of the principle that "he who hears must decide". He argues that the decision maker was the Visa Officer but the adjudicator was Ms. Taheri.
[6] Next, the Applicant submits that there was a breach of procedural fairness resulting from the failure of the Respondent, as the party responsible for the actions of Ms. Taheri and the Visa Officer, to provide him with the opportunity to allay concerns about his intentions for seeking admission into Canada.
[7] The Respondent submits that the principle of "he who hears must decide" is inapplicable and that there was no breach of procedural fairness arising from the manner in which the application in issue was assessed.
[8] The decision here under review was made by the Visa Officer pursuant to the Immigration Act, R.S.C. 1985, c. 2 as amended (the "Act") and the Immigration Regulations, SOR/78-172, as amended. In deciding whether to issue a visa, the Visa Officer is making an administrative decision involving the exercise of discretion. He was entitled to rely on information gathered by an assistant; see Silion v. Canada (Minister of Citizenship and Immigration (1999), 173 F.T.R. 302. There is no evidence that Ms. Taheri did anything more than obtain information from the Applicant. The actual decision was made by the Visa Officer who was justified in relying on the facts obtained in the interview and recorded by Ms. Taheri in the CAIPS notes. This argument of the Applicant must fail.
[9] The argument advanced about the lack of procedural fairness resulting from the failure of the Respondent, through his servants and agents, to provide the Applicant with the opportunity to resolve concerns about his application is more problematic.
[10] There is no mention in the CAIPS notes of any concern being raised by Ms. Taheri. The Visa Officer introduces the subject in his affidavit where he says, in paragraphs 8 and 9 the following:
In my opinion, the Applicant's proposed course of study did not seem genuine. In my experience as a visa officer, I have noticed a tendency of young persons, wishing to permanently leave Iran, enrolling in educational programs in Canada at a lower level than their current or past level of studies. Since the admission standards are typically less stringent, I believe admission to such programs is sought as a means to facilitate entry to Canada rather than a genuine attempt to further educational goals and long-term aspirations in Iran. The employment opportunities in Iran are very limited, even for university graduates.
When the Applicant was confronted with this concern, he was unable to explain further than to say that computer programming, his chosen course of study, was not available to him at university in Iran. There are a number of computer training and certification programs (which would appear to be somewhat analogous to those at the community college level) available in Iran for those who cannot get into university programs. Thus, his explanation was unsatisfactory.
[11] The Visa Officer is here introducing issues which are not recorded in the CAIPS notes. In my opinion, these issues are not even implicit in the CAIPS notes. The Visa Officer did not interview the Applicant, so it is clear that he did not raise any "concern" with the Applicant.
[12] It appears that the Visa Officer imported an extraneous element into his decision making process when he considered a "tendency of young persons" wishing to leave Iran permanently to enrol in "lower" educational programs in Canada and the limited employment opportunities in Iran "even for university graduates" in reaching his conclusion that the Applicant would be unlikely to return to his country after completion of studies in Canada. Reliance on this extraneous consideration gives rise to a reviewable error.
[13] As stated by Justice Kelen at paragraph 6 of Yue v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1299 (T.D.)(QL), in the context of a judicial review of a refused student authorization, "While visa officers are legally entitled to apply their own experience toward a decision... , an officer cannot stereotype an applicant based on that experience."
[14] In the result, this application for judicial review is allowed and the matter is remitted for redetermination by a different visa officer. Counsel advised that there is no question for certification.
ORDER
This application for judicial review is allowed and the matter is remitted for redetermination by a different visa officer; there is no question for certification.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5822-01
STYLE OF CAUSE: HAMIDREZA MIRZAII
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, FEBRUARY 11, 2003
REASONS FOR ORDER
AND ORDER: HONOURABLE MADAM JUSTICE HENEGHAN
DATED: FEBRUARY 13, 2003
APPEARANCES:
Ms. Wennie Lee FOR APPLICANT
Ms. Alexis Singer FOR RESPONDENT
SOLICITORS OF RECORD:
The Law Firm of Wennie Lee
United Centre, Suite 610
255 Duncan Mill Road
Toronto, Ontario, M3B 3H9
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030213
Docket: IMM-5822-01
BETWEEN:
HAMIDREZA MIRZAII
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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