Date: 19991208
Docket: IMM-987-99
BETWEEN:
BAKHTIAR MUJAHID SUBHANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
[1] The applicant has challenged by way of judicial review a decision of the visa officer dated January 15, 1999, refusing his application for permanent residence in Canada. The issues raised in this proceeding concern the visa's officers assessment of the personal suitability factor.
[2] The applicant, who is a citizen of Bangladesh, made an application for permanent residence on December 11, 1996 under the Independent category. He listed "Power Engineer, Mechanical CDDO# 2147-110" as his intended occupation.
[3] On November 2, 1998, the applicant attended an interview with the visa officer. In her notes made at the time of the interview, the visa officer indicated, among other things, that she assessed the applicant in the occupations of Power Engineer, Mechanical (CCDO 2147-110), Power Engineer, General (CCDO 9533-122) and Mechanical Engineer, General (CCDO 2147-118). The visa officer had concerns that the applicant's experience did not relate specifically to those occupations. In relation to personal suitability, she stated, in part, as follows:
| PI KNOWS LITTLE ABOUT CDA, HAS DONE VIRTUALLY NO CONCRETE PREPARATION FOR HIS MOVE, AND APPEARS TO HAVE UNREALISTIC EXPECTATIONS OF HIS JOB PROSPECTS. RAISED MY CONCERNS WITH HIM AT THE INTERVIEW. |
[4] By fax dated November 23, 1998, counsel for the applicant wrote to the visa officer and stated, in part, as follows:
| We are writing on behalf of our client, Mr. Kakhtiar Subhani, who was recently interviewed by you in connection with his application for permanent residence. Our client advises that you expressed some concerns regarding his qualifications for immigration. He further advises that when he tried to determine what your concerns were in the hope of providing additional information to you, you simply told him that the interview was over. |
| We wish to respectfully point out that procedural fairness requires you to give our client an opportunity to understand the nature of your concerns and to address them prior to you reaching a decision. We, therefore, ask that you provide us with a list of possible clarifications or issues which our client could address to assist you in reaching in [sic] fully informed decision. |
[5] The visa officer did not respond to the letter of counsel.
[6] By fax dated December 23, 1998, counsel for the applicant again wrote to the visa officer to request that she "...provide a list of possible concerns...".
[7] On January 15, 1999, the visa officer added the following statement to her notes:
| note: |
| letter on file from conslt requesting "list of possible clarifications or issues which our client could address to assist you in reaching in (sic) fully informed decision"... |
| APPLICANT WAS GIVEN OPPORTUNITY TO DISCUSS APPLICATION AT INTERVIEW, WHEN I RAISED MY CONCERNS WITH HIM. |
[8] By letter incorrectly dated January 15, 1998, the visa officer refused the application for permanent residence on the basis that the applicant had obtained insufficient units of assessment to qualify for immigration to Canada. However, she gave him the "benefit of the doubt" and awarded him units of assessment for the factor of experience in those occupations. In her assessment, the visa officer gave the applicant the maximum units of assessment in all categories, save and except for personal suitability. She awarded the applicant five units of assessment, out of a possible total of ten, for personal suitability. The applicant received 68 units of assessment in the occupations Power Engineer, Mechanical (CCDO 2147-118) and Mechanical Engineer, General (CCDO 2147-118).
[9] In her affidavit filed in this proceeding, the visa officer outlined, among other things, her rationale for awarding the applicant only five units of assessment for personal suitability. She also stated that she provided the applicant with an opportunity at the interview to respond to her concerns.
[10] The applicant filed an affidavit in which he stated, among other things, that he had asked the visa officer not to decide his case immediately following the interview in order to enable him to provide additional information.
[11] Counsel for the applicant submitted that the visa officer breached the requirements of procedural fairness by failing to provide him with an opportunity to respond to her concerns. I agree with that submission. Even if I were to assume that the visa officer provided the applicant with an opportunity at the interview to respond to her concerns, she nevertheless ought to have acceded to the request of the applicant's counsel to address those concerns prior to the making of a decision. Although counsel wrote to the visa officer on two occasions requesting an opportunity to respond, she did not afford him the courtesy of a reply and made the decision without any further input from the applicant or his counsel. Given the two requests made by counsel prior to the making of the decision, the visa officer was required, as a matter of procedural fairness, to permit the applicant or his counsel to respond to her concerns. In arriving at my decision, I have considered that there is conflicting evidence in the record concerning what transpired at the conclusion of the interview.
[12] The application for judicial review is allowed and the matter is remitted to a different visa officer for redetermination. A teleconference will be arranged with counsel in order to permit them to make submissions on the question of whether the case raises a serious question of general importance.
"D. McGillis"
Judge
Toronto, Ontario
December 8, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-987-99 |
| STYLE OF CAUSE: BAKHTIAR MUJAHID SUBHANI |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: WEDNESDAY, DECEMBER 8, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR JUDGMENT BY: McGILLIS J. |
DATED: WEDNESDAY, DECEMBER 8, 1999
| APPEARANCES: Mr. Ira Nishisato |
| For the Applicant |
| Mr. Stephen H. Gold |
| For the Respondent |
| SOLICITORS OF RECORD: Borden & Elliot |
Barristers & Solicitors
Scotia Plaza
40 King Street West
Toronto, Ontario
| M5H 3Y4 |
| For the Applicant |
Morris Rosenberg
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19991208
Docket: IMM-987-99
BETWEEN:
BAKHTIAR MUJAHID SUBHANI
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGMENT