Date: 20010620
Docket: IMM-3735-00
Neutral citation: 2001 FCT 682
BETWEEN:
RUSSOM GHEBRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of the decision of a Visa Officer dated July 6, 2000, wherein the Visa Officer refused the applicant's application for permanent residence in Canada.
[2] The applicant, a citizen of Britain, applied for permanent residence in Canada in the assisted relative category on January 20, 1999. The applicant applied under his intended occupation of Electronics Technician (NOC 22412).
[3] The applicant was interviewed on April 19, 1999. The Visa Officer, in his CAIPS notes entry for February 9, 2000, stated as follows:
NO ON 2ND THOUGHTS, FUNDS ARE ABSOLUTELY MINIMAL, AND MAINLY IN NON-ASSESSED PROPERTY. AT PRESENT SUBJ DOES NOT MEET SELECTION CRITERIA. APPKLICATION [SIC] REFUSED.
[4] By letter dated January 31, 2000, the applicant's agent forwarded the applicant's C.V. which appeared to indicate that the applicant had obtained further work experience in his field. This letter cannot be found on the tribunal record, however the CAIPS notes for February 9, 2000 state that:
IN RECEIPT FROM AGENT UPDATED CV FOR PI. ACTION: ATTACHMENT FORWARDED DIRECTLY TO [THE VISA OFFICER IN CHARGE OF THE FILE] FOR REVIEW.
[5] The applicant's application was refused by letter dated July 6, 2000.
[6] The applicant, in his affidavit, filed the following documents which were attached to the affidavit served in August, 2000 but do not appear to form part of the tribunal record:
a) Inland Revenue PAYE coding notice for 1999 – 2000
b) Inland Revenue P45
c) Inland Revenue PAYE coding notice 1997 – 1998
d) Letter from Immigration Consultant dated August 19, 1999
e) Letter from Immigration Consultant dated January 31, 2000 enclosing updated CV of the Applicant
f) Letter from Immigration Consultant dated April 14, 2000 together with its attachments
g) A letter from Imagine Wireless dated July 17, 2000
h) Statement from Lloyd's TSB for July 31, 2000
[7] The two exhibits in g) and h) were clearly dated after the date of decision, July 6, 2000, and were not dealt with by me. The respondent acknowledged that if the three letters d), e) and f) were admissible then the judicial review would have to be allowed. Accordingly, the other issues raised by the applicant have not been dealt with in lieu of my views on exhibits d), e) and f).
[8] The Visa Officer, according to the CAIPS note made on February 9, 2000, indicated that the application was refused. However, the applicant was not forwarded the decision until July 6, 2000. In my view, the Visa Officer was under a duty to consider the letters forwarded by the immigration consultant which were submitted after the interview but before the decision letter refusing the visa had been written. I agree with Evans J. in Muhammad v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1481 (T.D.) where Evans J. stated at paragraph 23:
... I am prepared to assume that the visa officer is under a duty to consider material elucidating the experience of the applicant submitted after the interview, but before the decision letter refusing the visa has been written, and that the consultants' letter should therefore have been taken into account when the visa officer was determining whether the applicant was qualified to obtain employment as a computer programmer was inherent in the totality of his work experience. ...
[9] Pinard J. followed this statement by Evans J. in Chandpuri v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1850 (T.D.).
[10] Although the CAIPS notes refer to a decision on February 9, 2000, this decision was never communicated to anyone and could have been changed at any time. The decision is the decision in the letter of July 6, 2000. The Visa Officer has not provided any explanation for the delay between February 9, 2000 and July 6, 2000. Accordingly, the materials that are dated prior to July 6, 2000 should have been before the Visa Officer and should have been considered by making his decision. Thus exhibits a) to f) are admissible.
[11] The application for judicial review is allowed. The Visa Officer's decision dated July 6, 2000 is set aside and the matter referred back for redetermination by a different visa officer.
"W.P. McKeown"
J.F.C.C.
Toronto, Ontario
June 20, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3735-00
STYLE OF CAUSE: RUSSOM GHEBRE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: TUESDAY, JUNE 12, 2001
PLACE OF HEARING: CALGARY, ALBERTA
REASONS FOR ORDER BY: McKEOWN J.
DATED: WEDNESDAY, JUNE 20, 2001
APPEARANCES: Mr. Richard Tumanon
For the Applicant
Ms. Tracy J. King
For the Respondent
SOLICITORS OF RECORD: Richard Tumanon
Barrister & Solicitor
Suite 375, Lougheed Building
604 - 1st Street S.W.
Calgary, Alberta
T2P 1M7
Fax: (403) 269-7173
For the Applicant
Edmonton Regional Office
Department of Justice
300 Bank of Montreal Building
10199-101 Street
Edmonton, Alberta
T5J 3Y4
Fax: (780) 495-6300
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010620
Docket: IMM-3735-00
BETWEEN:
RUSSOM GHEBRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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