Date: 19990927
Docket: IMM-5657-98
BETWEEN:
NICOLAE HRISTOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.:
[1] This is an application for judicial review of a decision dated October 9, 1998 of the visa officer Moira Lucy Escott, Canadian Consulate General, Detroit, Michigan, wherein the applicant"s application for permanent residence in Canada was refused.
FACTS
[2] The applicant filed his application in May 1995, in Bulgaria. The applicant and his spouse were interviewed by the visa officer Michel Dupuis at Sofia. The visa officer informed the applicant that he met the definition of computer programmer but that he would need to improve his English and submit proof in either TOEFL or IELTS scores. The successor of Mr. Dupuis, Renald Grégoire, stated that he was not prepared to refuse the case on language ability on paper and insisted on a second interview to check the applicant"s knowledge of English.
[3] The second interview was conducted by the visa officer, Stephan Stebelsky, who was informed by the applicant"s wife that the applicant had migrated to the United States to work as a computer programmer, and that his family would be joining him. The applicant"s wife requested that the necessary information be sent in order to transfer the files to the States. This information was sent on June 18, 1996.
[4] On January 29, 1997, Stephan Stebelsky refused the application, under subsection 9(3) of the Immigration Act, concluding that the applicant was no longer interested in emigrating to Canada due to the fact that the applicant had taken no action in his file since June, 1997.
[5] The applicant contacted the visa office on February 28, 1997. He indicated that he did not wish to have his Right of Landing Fee refunded, and requested a transfer of the application to the Canadian Consulate in Buffalo. The file was transferred as of July 25, 1997.
[6] The file was later transferred to the Canadian Consulate in Detroit for processing. On October 8, 1998, the applicant was interviewed by Moira Lucy Escott, a visa officer.
[7] In a letter from the visa officer dated October 9, 1998, the applicant was advised that his application for permanent residence to Canada was refused.
ISSUES
Irrelevant Considerations
[8] The visa officer"s assessment touched upon factors which had not been in dispute between the parties. Thus, are parts of the assessments irrelevant to the application for permanent residence?
Denial of Procedural Fairness: Fairness to State Purpose of Interview
[9] The applicant was counselled that he was accepted as a computer programmer, and that his application was to be approved subject to a further interview dealing with language assessment. The visa officer who conducted the final interview altered this purpose to an assessment of other factors, including work experience. Did this altered course of action constitute a failure of the visa officer to inform the applicant of the purpose of the interview?
Denial of Procedural Fairness
[10] Was the conduct of the final officer during the interview not conducive to providing the applicant a fair assessment of his application for permanent residence?
ANALYSIS
[11] Even though it could seem unfair for a third visa officer looking into this matter to revisit elements that were already assessed by a previous visa officer, the visa officer Escott was totally entitled to assess the applicant under the occupations of computer programmer, maintenance worker computer operator.
[12] Pursuant to section 9(2):
| 9(2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing. |
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9(2) Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge semblent répondre aux critères de l'établissement.
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[13] In my view the visa officer in the present case, was statutorily required to ascertain whether the applicant and his dependants met all the preconditions to immigrate to Canada before issuing an immigrant visa. The visa officer Escott clearly established that the applicant was advised that the purpose of his interview was to discuss not only his language ability and personal suitability but also his education, training, and employment experience in order to determine if he qualified for immigration under Canada"s Acts and Regulations1 . In my view, even though his wife had mentioned to a previous visa officer that the applicant had moved to the United States to work as a computer programmer, it was not the case and the visa officer, through a series of questions, has assessed the applicant on his education, training, employment experience, language ability and personal suitability. That is totally in accordance with the Immigration Act.
In my view the way that Ms. Escott has assessed factors which were already assessed by the visa officer Dupuis, were not irrelevant considerations given that the details of his experience before and after the applicant moved to the United States were totally relevant to the responsibilities of the visa officer. Pursuant to the visa officer"s affidavit, Ms. Escott"s mentioned that there was a self-admission by the applicant that:
| He stated he realized he did not have sufficient education and training to pursue the occupation of computer programmer in Canada and stated he intended to go to Canada and go to school for computers. |
[14] Relating to his language ability, it is also clear from the visa officer"s affidavit that the subject chose not to upgrade his language ability and skills because he felt it was not necessary to do so. This mention was an important one given that it was the major point raised by the first visa officer Dupuis.
[15] I am of the opinion that the first two arguments by the applicant have to be rejected in the circumstances. Relating to the third issue which is a denial of procedural fairness: this is a more delicate one.
[16] The Court is facing contradictory evidence. On one side, the applicant through his affidavit affirms that he attempted to explain his work experience, but was denied the opportunity by the visa officer. The applicant also mentioned that the visa officer suggested that he could have obtained an immigrant visa through fraudulent means. Through his affidavit the applicant also mentioned that the visa officer Escott was like an officer in the army and often stopped the applicant before he could finish. The applicant also referred to the body language of the visa officer that was very difficult to support.
[17] When you read the affidavit of the applicant with the description of what happened during the interview and you read the affidavit of Ms. Escott, the visa officer, who described the same event, it is very difficult to reconcile. Counsel for the applicant relied on the decision in Jiang v. Canada (Minister of Citizenship and Immigration) [1997], F.C.J. No. 1560, in which Justice Lutfy stated:
| The principles of natural justice and procedural fairness apply to the visa officer"s meeting with the applicant. The visa officer has a serious responsibility during such interviews in assessing whether the applicant will be able to become successfully established in Canada. The visa officer must maintain a level of decorum conducive to an open and fair exchange, even in circumstances which must be sometimes difficult and trying. |
| In the absence of affidavit material denying the use of the language attributed to her, I must assume that the visa officer uttered the words "shut up". In my view, such words cross over the lines of acceptable language in expressing one"s disapproval, particularly when spoken by a person in authority. |
Obviously, in this case Justice Lutfy decided in favour of the applicant because there was not evidence to the contrary.
[18] In the case at bar it is not the same situation because we are facing contradictory evidence and the visa officer Escott is vigorously denying the use of the language attributed to her and also the behaviour.
[19] In my view, a reading of the affidavit of the visa officer clearly reveals that the latter conducted herself in a fair and equitable manner at all times.
[20] In my view, the applicant failed to convince me that the decision of the visa officer was not well-founded in facts and law and the applicant has not demonstrated that the visa officer may have committed a reviewable error that could justify this Court" intervention.
[21] For the foregoing reasons, this application for judicial review should be dismissed and the decision of the visa officer should be upheld.
[22] Neither party has suggested the certification of a question.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 27, 1999
__________________
1 Escott affidavit, sworn January 8, 1999.
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