Date: 20010426
Docket: IMM-1613-00
Neutral citation:2001 FCT 387
Ottawa, Ontario, Thursday the 26th day of April 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
YI AN
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of a visa officer, made on February 18, 2000 at the Canadian Consulate General in Detroit in the United States refusing Mr. An's application for permanent residence.
[2] The dispositive issue in this application for judicial review is whether the conclusions of the visa officer that Mr. An did not respond to questions in a credible manner, and that she could not find that Mr. An's documents were reliable, were reasonably open to the visa officer. If reasonably made, the visa officer was entitled to determine that Mr. An had failed to satisfy her that he had performed the duties of his intended occupation of Editor. If not reasonably made, I am satisfied that the visa officer committed a reviewable error by ignoring the documentary evidence provided purporting to demonstrate Mr. An's experience.
[3] The CAIPS notes, supported by the affidavit of the visa officer, record the concerns of the visa officer at the time of Mr. An's interview that:
(i) Mr. An would not answer the question asked nor give a straight answer to the question;
(ii) Mr. An claimed a French language ability of "well" in all areas when he could not speak French, could not read a paragraph in French and explain what it was about, and wrote three sentences in French only with difficulty;
(iii) Mr. An's speaking ability in English was not "well"as he had described it;
(iv) Mr. An enhanced other aspects of his application in that he claimed to have a master's degree and two job offers when he had neither;
(v) Mr. An denied working for an employer other than China Central Television ("CCTV") when in October of 1998 he had advised the Canadian Embassy in Beijing, while applying for a visitor's visa, that he was the Deputy Manager of the Tianjin East Asian Economy Technology Corporation.
[4] The visa officer swore as follows in her affidavit filed in this proceeding:
8. I provided the applicant with the NOC description of editor and advised him that he was required to satisfy me that he had performed the functions of an editor. I asked the applicant to describe in detail how he determined the suitability of material for publication or broadcast. The applicant stated he had been a reporter and worked for CCTV. I asked the applicant if he was still employed by CCTV and he responded he was. I asked him to discuss the last editing work he had done for CCTV. The applicant stated he was involved in filming documentaries and other television productions but he could not provide any specifics regarding this work or details of editing work.
9. Prior to the applicant's interview a remote check to our Beijing office revealed that the applicant had applied for and received a Canadian visitor visa from that office in 1998. On his visitor visa application the applicant had indicated that he was deputy manager of Tianjin East Asian Economic Technology Corporation.
10. I noted the applicant's passport, that had been issued in 1997, listed his occupation as "manager". I noted the applicant's resume and his application for permanent residence made no mention of having worked as a manager or having worked for Tianjin East Asian Economic Technical Corporation.
11. I asked the applicant if he had ever worked anywhere else besides CCTV. He responded he had not. I asked the applicant why his passport listed his occupation as manager. The applicant did not provide an answer to this question. I asked the applicant why he came to Canada in October 1998. He stated he came to film a documentary for CCTV. I asked the applicant what his relationship was with Tianjin East Asian Economic Technical Corporation. The applicant responded "who"?
12. I advised the applicant that remote notes from Beijing indicated he had applied for a visitor visa for Canada in Beijing and listed his occupation as deputy manager with Tianjin East Asian Economic Technical Corporation. The applicant gave a variety of answers. First he stated he did not work as a deputy manager, then he stated he had not submitted the application to the office in Beijing himself, someone else did, then he stated he sometimes worked for this company.
13. I asked the applicant again to explain the relationship with Tianjin East Asian Economic Technical Corporation. He stated "what this really means is I was a shareholder". I was unable to get a satisfactory answer from the applicant regarding why his passport showed his occupation as manager, why his resume and application for permanent residence did not mention anything about the Economic Technical Corporation and why he had stated that his occupation was manager when he applied for a visitor visa.
14. I advised the applicant that I could not conclude that he was credible or that his documents were reliable. I further advised the applicant that I was not satisfied that he had in fact performed the functions of an editor as per the NOC description. I advised him that he would be allowed thirty days to provide anything further to support his application.
15. On February 18, 2000, I thoroughly reviewed the applicant's file. Nothing further had been received. I was not satisfied that the applicant had performed the functions of an editor and that he would successfully establish in Canada.
[5] The visa officer was not cross-examined on her affidavit.
[6] Mr. An did not, in my view, materially contradict the evidence of the visa officer in his own affidavit. With respect to the issue of experience, he simply swore that at no point in the interview did the visa officer advise him that she was dissatisfied with his answers concerning experience and he complained that the visa officer did not make specific enquiries regarding his work experience. Mr. An did not deal with the fact that his passport and visa application listed his occupation as a manager. With respect to the Tianjin East Asia Economy Technology Corporation Mr. An noted that he and the visa officer had spoken about this issue for approximately ten minutes. Mr. An simply swore that at the interview he tried to be as clear as possible.
[7] I am satisfied that the negative credibility finding was one reasonably open to the visa officer. While difficulties with language may have caused confusion as to whether Mr. An claimed to have a master's degree, I am satisfied that he failed to deal with the discrepancies between the material in his current application for permanent residence and his earlier application for a visitor's visa.
[8] It follows that it was open to the visa officer to give little or no weight to Mr. An's evidence relating to experience and to the letter from his employer. The application for judicial review should therefore be dismissed.
[9] Notwithstanding that conclusion, I consider it necessary to comment on the content of one other paragraph in the visa officer's affidavit. That paragraph is as follows:
20. Subsequent to my refusal decision, it has come to my attention that Citizenship and Immigration Canada's ("CIC's") Case Processing Centre in Vegreville, Alberta, has received confidential information indicating that the applicant is actually the Deputy Manager of a Chinese company in Tianjin. Furthermore, the information indicates that the Applicant's letter of reference from CCTV is fraudulent and that the Applicant is currently working illegally in Canada.
[10] This evidence is tendered notwithstanding that it is well-settled law that as a general principle on judicial review a court is to consider solely the record before the original decision-maker. This is a position repeatedly taken on the Minister's behalf in applications for judicial review. No argument was made here that some exception to that general principle should apply.
[11] Additionally, this evidence contravenes Rule 81 of the Federal Court Rules, 1998 which requires that on proceedings brought by notice of application, as in this proceeding, affidavits shall be confined to facts within the personal knowledge of the deponent.
[12] It is difficult for me to characterize the contents of paragraph 20 of the visa officer's affidavit as anything other than an improper attempt to bolster the visa officer's credibility findings by attempting to impugn Mr. An's credibility further by reference to hearsay assertions not properly admissible before the Court. This is conduct which brings discredit to the government of Canada which is interested in ensuring that applicants for admission to Canada are fairly assessed, and which is to advocate abroad Canadian values.
[13] Counsel for the Minister, who was not counsel of record at the time the affidavit was prepared and filed, conceded that the paragraph was "unusual" and advised that he was not sure how it came into the affidavit.
[14] I have given careful consideration to the consequences which should result from this improper testimony.
[15] I have concluded that because the events purportedly described only came to the attention of the visa officer after her decision was made her recital of those matters does not provide a basis upon which to set aside the decision of the visa officer.
[16] Mr. An's counsel asked me to infer from the contents of paragraph 20 that at the time the visa officer swore her affidavit she recognized that her decision was defective and that it needed to be buttressed. I am not prepared to draw that inference.
[17] Nevertheless, as an indication of the Court's disapproval of this conduct I consider it appropriate to dismiss the application for judicial review with costs in the amount of $200.00 payable forthwith by the respondent to the applicant. Counsel posed no serious question for certification.
ORDER
[18] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. The respondent shall pay to the applicant costs in the amount of $200.00, inclusive of all disbursements, payable forthwith.
"Eleanor R. Dawson"
Judge