Date: 19990830
Docket: IMM-59-99
BETWEEN:
SHERIF MOATAZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant, a citizen of Egypt, is a civil engineer and, since 1986, has operated his
own businesses in the construction industry.
[2] The applicant applied for permanent residence as an independent immigrant under the intended occupation of civil engineer. His application was refused by the visa officer who, in the exercise of her discretion under subsection 11(3) of the Immigration Regulations,
1978, (SOR/78-172, as amended), determined that her assessment of seventy-three units did not reflect his chances of becoming successfully established in Canada.
[3] Paragraph 11(3)(b) of the Regulations sets out the different roles of the visa officer
and the senior immigration officer before an applicant for permanent residence, who is awarded seventy or more units of assessment, can be refused an immigrant visa:
(3) A visa officer may
...
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10, if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
(3) L'agent des visas peut
...
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10, s'il est d'avis qu'il existe de bonnes raisons de
croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu
l'approbation de ce dernier.
As I understand this regulatory scheme, the visa officer who has processed the application
identifies the "good reasons" why the units awarded do not reflect the chances of successful
establishment in Canada. The visa officer"s decision to refuse the immigrant visa can only
be made after those reasons have been approved by a senior immigration officer. In the end,
the decision to refuse must be that of the visa officer.
[4] The visa officer"s reasons for not believing that the applicant could successfully establish himself in Canada are clearly stated in her CAIPS notes:
| (1) has not really worked on the open market as civil engineer. He has been self employed for the past 12 years and previous to that has had two very short lived jobs: one for 6 months and one for 3 months. This very short experience is not only short but not verifiable as at least one of the two companies he worked for, is now defunct. |
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| (2) although he claims that as a self employed contractor he has practiced civil engineering, I am convinced that his primary concern would most naturally be running his 2 businesses rather than practicing civil engineering himself (he has 25 ees and divides his time bet. the marble showroom & the construction contracting business). |
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| (3) although his wife speaks french and appears educated she has declared that she has no intention of seeking employment in Canada and has never worked in Egypt so he would not benefit from a spouse that is employable in Canada. [unedited] |
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In summary, the visa officer was of the view that the applicant had not worked as a civil engineer over the past twelve years and that he would continue to focus on his construction businesses in Egypt even after being landed in Canada.
[5] Some ten days later, the senior immigration officer reviewed, and concurred with, the visa officer"s reasons. However, he identified additional reasons, particularly in relation to the applicant"s language ability, which had not be noted by the visa officer in her subsection 11(3) analysis. The CAIPS notes of the senior immigration officer state:
| In view of reasons cited above concur that units of assess do not properly reflect this applicants chances of success in CDA. In addition does not appear to have done any research on his move to CDA and at times has difficulty with English. Negative discretion approved. [unedited] |
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[6] It is against this background that one better understands the visa officer"s letter of decision in which she explains the reasons for her refusal under paragraph 11(3)(b):
| First, your employment prospects in Canada for another employer without good English will be very restricted. In addition, you do not have relatives in Canada who are able to assist you and you have had no preparation for your immigration plans. You do not have a valid offer of employment in Canada and have not worked in the open labour market for any length of time. In addition, you cannot benefit from the assistance of a spouse who is likely to obtain employment. It is therefore not likely that you will be able to establish yourself successfully in Canada. |
|
This letter was signed almost two months after the senior immigration officer approved the
visa officer"s reasons to refuse the immigrant visa.
[7] For reasons which are not apparent in the record, nor explained to the applicant, the
visa officer referred to the language issue as the first ground in her refusal letter, even though this factor does not appear in her written subsection 11(3) analysis. The language factor was first raised by the senior immigration officer in his review of the visa officer"s "good reasons" for refusal. The letter of decision does not refer to the visa officer"s concern that the applicant would continue to operate his construction business in Egypt, thereby compromising his chances to become successfully established as a civil engineering in Canada.
[8] The Regulations are clear. The immigrant visa can be refused if, in the opinion of the visa officer, there are good reasons to believe that the assessment of seventy or more units does not reflect the applicant"s chances of becoming successfully established in Canada. Both the refusal and the good reasons for the refusal must be those of the visa officer, not the senior immigration officer. In this case, the letter of decision improperly invoked a reason raised by the senior immigration officer and not previously considered by the visa officer. For this reason alone, in my view, the refusal decision must be set aside. Put simply, the respondent"s officials must follow the process stipulated in paragraph 11(3)(b ) of the Regulations.
[9] The senior immigration officer, who did not meet the applicant, does not explain his statement that the applicant "at times has difficulty with English". The applicant was awarded the eight units he requested under the language factor. This assessment is intended to reflect an ability to read and write English fluently and to speak the language well.
[10] In her CAIPS notes, the visa officer wrote that the applicant "... speaks with lots of
hesitation and is not forthcoming with his answers. Information he gives is extremely brief and even when asked to elaborated he does not." In my view, these notes can be read as referring either to the applicant"s reticence and candour or to his language ability. In her affidavit, the visa officer was less equivocal: "... the applicant had evident problems of communication due to his weak proficiency in the English language." She then repeated the
substance of her CAIPS notes on this issue.
[11] If the visa officer truly believed the applicant to have "weak proficiency" in English, one wonders why she assessed his oral ability as "well" and awarded him one point less than the overall maximum of nine units for the language factor. There is no evidence of a written test to assess his writing proficiency. If that was her view, it was incumbent on her, in my opinion, to further examine the applicant"s ability during the interview and properly assess his request for eight units. It does not appear to be logical to have awarded him eight units if he had "weak proficiency" in English.
[12] Finally, the affidavits of the applicant and the visa officer are contradictory as to whether he was advised of her concerns about his ability to become successfully established in Canada, even though he was awarded seventy-three units. Neither deponent was cross-
examined and the visa officer"s CAIPS notes are silent on the issue. Counsel for the applicant relied on the general statement made by Justice Teitelbaum in Ali v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1 at paragraph 21:
| In essence, where an interview is necessary to assess an applicant, the duty of fairness requires that the visa officer thoroughly interview the applicant on factors relevant to the claim and give the applicant an opportunity to respond to allegations or assumptions of which the applicant could not be reasonably aware. |
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No other case law was cited by counsel.
[13] The interview did not cause the visa officer to alter the applicant"s paper assessment of seventy-one units, other than to grant two units for personal suitability. This resulted in a total assessment of seventy-three units. Significantly, the visa officer"s refusal to issue a visa, pursuant to subsection 11(3), was not the result of reducing units under any of the Schedule 1 factors.
[14] When seventy or more units have been assessed and the reasons affecting the potential use of the negative discretion under subsection 11(3) do not arise directly from the Schedule 1 factors, the visa officer should inform the applicant that his or her ability to become successfully established in Canada is still in question. This will provide the applicant with an opportunity to address the difficulties and concerns perceived by the visa officer which may not be apparent to the potential immigrant.
[15] For these reasons, the visa officer"s refusal to issue an immigrant visa will be set aside and the matter referred for redetermination before a different visa officer and senior immigration officer. Neither party suggested the certification of a serious question.
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
August 30, 1999
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