Date: 19990818
Docket: IMM-5288-98
BETWEEN:
LOREDANA SILION
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.:
| [1] The applicant seeks judicial review of and an order setting aside, a decision of a visa officer at the Canadian Embassy in Bucharest, Romania whereby the applicant"s application for a temporary employment authorization was refused. |
| [2] The applicant is a citizen of Romania and she lives there with her family. Born in September 1976, she works as an exotic dancer at a night club in Brasov. Through a local agency there she contracted with an employment entertainment agency and she signed an agreement with a night club in Toronto to work for some six months or so, performing "striptease (nude) stage shows" and "striptease (nude) table dance shows". The night club where she worked in Romania supplied her with a reference letter recommending her for work abroad as a "striptease dancer". That club also indicated its intention to re-employ her when she returned to Romania at the end of her contract. |
| [3] At the Canadian Embassy she was interviewed by an Immigration Program Officer ("IPO"), a locally engaged staff person at the Embassy, who assisted in processing immigration applications. That person, as attested by her sworn affidavit, recorded in CAIPS notes the results of her interview including the following notations: |
| Danced topless, no experience in striptease or nude. No qualification, trained on the job. |
...
| Has a 3 year UAE visa which was cancelled. Why? She went on contract also as dancer to UAE last year, she stayed six weeks but was not content with the salary which was lower than promised, so she returned to Romania. Does not make sense, why return when salary here is low, and why was the visa cancelled? Her employer did not want her to come back to UAE and work for somebody else. |
...
| Difficult financial situation here, poor travel, no ties, her explanation re trip to UAE and the cancelled UAE visa not credible, I have doubts she is bona fide. |
| [4] That report of the IPO was then considered by the visa officer at the embassy who decided to refuse the application for a temporary employment visa. Having made his decision he entered the following in the CAIPS notes at that time: |
| Applicant is not really experienced in the type of work proposed. Bona fides re intention to return are highly questionable. Refused. |
| [5] By his affidavit the visa officer swears that |
| I reviewed the information gathered by Ms. Centea [the IPO] and, on the basis of that information, I concluded that the Applicant was not really qualified to do the type of work proposed and I also concluded that it was unlikely that the applicant intended to go to Canada for a temporary purpose. Despite the presence of family in Romania, I did not believe the Applicant would voluntarily return to Romania upon the expiry of her employment authorization. Accordingly, I decided to refuse the application for an employment authorization. |
| [6] The applicant raises the following issues. First, the visa officer did not ask her any questions but relied on the report of the IPO. It is urged that it is the visa officer who must decide on the application in accord with the Act and Regulations and that the person who decides must hear the applicant. In this case it is said that the IPO participated in the decision-making process, without any authority to do so. |
| [7] The second concern raised by the applicant questions the determination by the visa officer that she was not experienced in the type of work proposed and that he was not persuaded she would return to Romania at the conclusion of her short-term contract. Both findings are said to be patently unreasonable in the circumstances, particularly since the visa officer did not interview the applicant though she remained at the embassy and was available, and indeed she was apprised of his decision before she left the embassy. |
| [8] As I indicated when this matter was heard I dismissed the application and an order goes to that effect for the following reasons. |
| [9] It is true that the visa officer has a responsibility under the Act and Regulations to decide on applications for a visa. While the Minister has authority under the Act to delegate that function to certain people there is no suggestion that it was here delegated to the IPO. The applicant urges that on the basis of cross-examination of the IPO and of the visa officer it is clear that she did participate in the decision-making process and both acknowledged that the IPO might approve applications that were straightforward. In cross-examination however, they both affirmed that a decision to refuse a visa was made only by the visa officer. |
| [10] This case concerns a decision to refuse a visa. The decision was clearly made by the visa officer, as he avers in his affidavit. This is supported by the affidavit of the IPO and further by the applicant"s own affidavit which acknowledges that when she was advised of the decision to refuse her application she was told that the immigration officer made the decision, not the IPO. |
| [11] The decision is essentially an administrative one, made in the exercise of discretion by the visa officer. There is no requirement in the circumstances of this or any other case that he personally interview a visa applicant. There may be circumstances where failure to do so could constitute unfairness, but I am not persuaded that is the case here. Here the IPO did interview the applicant and reported on the results of that interview. That report was considered by the visa officer who made the decision. Staff processing and reporting on applications is a normal part of many administrative processes and it is not surprising it was here that followed. This is not a circumstance of a judicial or quasi-judicial decision by the visa officer which would attract the principle that he who hears must decide, or the reverse that he who decides must hear the applicant. |
| [12] As for the submissions that the findings of fact by the visa officer were patently unreasonable, I am not persuaded that this was the case. The applicant does not urge that she had experience in nude striptease dancing. Rather, her argument is that her experience in topless dancing qualified her as an exotic dancer, or even as a "striptease dancer" as her employer in Brasov recommended. The evidence before the visa officer was that she had no experience in "striptease or nude", as reported by the IPO on the basis of her interview. While the basis of the IPO"s finding was explored in cross-examination on her affidavit, there is really no evidence before me that the IPO"s assessment was in error. The contract the applicant had signed for work in Toronto required her to do nude striptease dancing. She does not claim experience in that work by her affidavit. The visa officer"s finding that she was not really experienced in the type of work proposed cannot be said to be unreasonable. |
| [13] I reach the same conclusion about his finding that there was no persuasive evidence that she would return to Romania at the end of her short-term contract. The evidence before the visa officer included the comments of the IPO that she lived with her family of five others in a 3-room flat, that her salary was comparatively low, that the financial situation there was difficult, that she had no ties there and that her explanation concerning cancellation of her UAE visa and her visit to that country was not credible. While not all of those grounds might support the conclusion that the visa officer reached, in my view they did provide sufficient bases for his conclusion that it was questionable whether she would return to Romania at the conclusion of her contract in Toronto. |
| [14] At the conclusion of the hearing it was submitted on behalf of the applicant that the Court ought to certify, pursuant to subsection 83(1) of the Immigration Act, the following question: |
| Does the principle that only those who hear can decide apply in the context of the determination of an application for an employment authorization? |
Having considered the matter I determine that the question ought not to be certified since it seems to me clear that the principle underlying that question has no application in relation to an administrative decision, even a discretionary decision, as was involved in this case. The proposed question is not a serious question of general importance in these circumstances.
"W. Andrew MacKay"
JUDGE
TORONTO, ONTARIO
August 18, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: LOREDANA SILION |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, AUGUST 17, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: MacKAY J. |
DATED: WEDNESDAY, AUGUST 18, 1999
| APPEARANCES: Mr. Stephen W. Green |
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD: Green & Spiegel
Suite 2200, P.O. Box 114
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990818
Docket: IMM-5288-98
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
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