Date: 19991206
Docket: IMM-187-98
BETWEEN:
JIANWEN CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks to have a decision of a visa officer that refused him an immigrant visa set aside. The applicant alleges five grounds of error: (1) the number of SVP points awarded was too low; (2) the number of points awarded for the level of education he had achieved was too low; (3) the visa officer was biased; (4) the number of points awarded for personal suitability was too low; (5) the visa officer failed to interview the applicant's wife as a principal applicant.
[2] The respondent concedes that an error occurred with respect to the SVP points, and 15 rather than 11 should have been awarded. The applicant's total thereby becomes 67, still 3 points short of the required 70.
[3] The applicant asserts that he completed a four year full-time program at the Shanghai Institute of Foreign Trade, which equates to a bachelor's degree. Therefore, he should have been awarded 15 not 13 points for education.
[4] The visa officer's decision must be reviewed on the basis of the information that was before her. It is not appropriate to consider, on review, evidence that was not presented to her, unless she had refused to accept that evidence prior to issuing her decision or in someway discouraged the applicant from submitting it.
[5] The only documentation the applicant provided to the visa officer, to support his claimed educational achievement, was a translation of a notarial certificate stating that the applicant had been enrolled in the department of foreign language at the Shanghai Institute for four years, majoring in English, and that he had graduated. The applicant did not provide the visa officer with the original of the notarial certificate, nor did he provide her with a copy of the degree or diploma that he allegedly had received, nor did he produce the original of those documents for inspection. When the visa officer asked the applicant questions about the content of the courses he took, she found his answers vague and lacking in detail.
[6] It is trite law that the applicant has an obligation to demonstrate that what is being claimed is correct. The applicant did not do so. The visa officer's assessment of the applicant's educational qualifications was not in error.
[7] The allegation that the visa officer was biased is based on the visa officer's admission that she began to have doubts about the applicant's credibility early in the interview. Also, the applicant states that the visa officer's approach to questioning became more aggressive after he talked to his wife in Chinese, when the visa officer was asking him about his educational achievements.
[8] The visa officer admits that she had doubts about the applicant's credibility after their discussion of his educational qualifications. In cross-examination on her affidavit, she stated that it was the applicant's inability to answer questions on his own about his education that gave her concern:
| Q. ... Did you draw a negative inference from the fact that he started talking Chinese at the interview? |
| A. No, but the fact that he was unable to answer questions on his own regarding his claimed education was my concern. |
[9] The applicant and his wife admitted to the visa officer that they did not perform the functions of a sales promotion administrator, the occupation in which they claimed experience and claimed they intended to follow if admitted to Canada. They explained that they had produced letters of reference and had claimed to be sales promotion administrators, even though they were not, on the advice of their counsel (not their present counsel):
| A. Yes. I directly asked the applicant and his wife why the letters of reference specifically stated they performed the functions of a sales administrator, sales promotion administrator when they were telling me they had never done those things. |
| Q. And what was their answer to that question to the best of your recollection? |
| A. The applicant stated to me that that was what he was told to do. |
| Q. By whom? |
| A. By his counsel. |
| MS. LAM: Excuse me. Sorry. Are you talking about education certificates or letter of references? |
| A. Specifically this was the letter of references. |
| MS. LAM: I think your counsel's asking you about the education -- |
| A. (interposing) But it ties in to credibility because if this individual was willing to present me with documents that were not credible regarding his employment experience, then it would also lead me to believe that he would be willing to present documents that were not credible regarding his education. |
[10] The applicant may have perceived a changed attitude on the part of the visa officer during the course of the interview. If so, it is clear that it arose as a result of her concerns about his credibility, not as a result of bias. I cannot conclude that a reasonable and informed person viewing the matter realistically would think that bias existed.
[11] No convincing argument has been made that the points awarded for personal suitability were erroneous.
[12] I turn then to the alleged failure of the visa officer to properly evaluate the wife's application. Mr. Chen's wife applied to be admitted to Canada as a "dependent". She indicated that the occupation she intended to follow in Canada was "new worker/housewife". Subsequent to the filing of her application, her counsel wrote to the visa officer asking that Mr. Chen's wife also be evaluated as a sales promotion administrator. The visa officer evaluated her in that category. Like her husband, Ms. Chen admitted to the visa officer that she had not worked in that occupation, nor did she take any original documentation to support her claimed level of education to the interview. The visa officer did not err in not changing Ms. Chen's application to that of principal applicant.
[13] For the reasons given this judicial review application is dismissed.
Judge
OTTAWA, ONTARIO
December 6, 1999