Date: 20020711
Docket: IMM-3739-01
Neutral citation: 2002 FCT 775
BETWEEN:
SALEEM IBRAHIM MAAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] In this judicial review proceeding, Saleem Ibrahim Maan (the "applicant"), a citizen of Pakistan, challenges the January 15, 2001 decision by Visa Officer Mary Coulter (the "visa officer") refusing his application for permanent resident in the independent category in the intended occupation of General Electrical Engineer, NOC 2133.0.
[2] The circumstances of the applicant's case are very unusual because, after his interview held on February 15, 1999, the applicant was sent a letter on February 3, 2000, advising him his application had been approved and visas would be issued provided his application remained unchanged and other requirements remained valid.
[3] However, before finalizing matters, an updated check on the Field Operations Support System ("FOSS") was undertaken and it was discovered a warrant was outstanding in Canada for an individual with the same name, country of birth and date of birth as the applicant.
[4] That warrant had been issued on December 3, 1993, against a Saleem Maan who attempted to enter Canada illegally and did not show up at his inquiry. That person apparently made a refugee claim which was later declared abandoned.
[5] The visa officer re-interviewed the applicant on February 29, 2000 so as to allow him the opportunity to address her concerns regarding the outstanding warrant. The applicant denied he had ever been to Canada. He offered the possibility the person named in the warrant was his brother or some family member since all of his family was now in Canada. His fingerprints were taken but they could not be compared with the Saleem Maan named in the warrant because that person's fingerprints were not on file.
[6] In her affidavit in support of the respondent's position, the visa officer stated there were reasonable grounds to believe the two persons were one and the same for the following reasons:
(a) both have a spouse with the name Maan, Samina;
(b) both spouses have the same place of residence, Chicha Watni;
(c) the applicant has a mother named Manzoor, Bibi, in Toronto, whose landed immigrant form lists her as "Maan" whereas the Saleem Maan under warrant has a mother Manzoor Maan in Toronto;
(d) the applicant has a brother named Tariq Maan in Toronto whereas the other Mr. Maan under warrant also has a brother also called Tariq Maan in Toronto.
[7] In her affidavit, the visa officer states that on November 12, 2000, she reviewed the file as a whole including the results of the investigation conducted by the Immigration Control Officer and the applicant's response to concerns regarding his attempted entry to Canada. She states that based on the interview and the results of the subsequent investigation, she was satisfied the applicant had in fact attempted to enter Canada and had subsequently had a warrant issue against him.
[8] She found the applicant not credible -- and this lack of credibility extended to his application as a whole and overrode any previous decision taken in his case. She states his lack of credibility undermined his entire application including claims pertaining to his education and work experience. She noted the Saleem Maan under warrant indicated his occupation from 1985 to 1992 was as a farmer on his father's farm. As a result, the applicant's experience as an Electrical Engineer was not credible. He was awarded 0 points for the experience factor and 0 points for the occupational factor. Under subsection 11(2) of the Immigration Regulations, 1978 (the "Regulations") a visa officer cannot issue a visa to an immigrant if that immigrant fails to earn at least one unit of assessment for the educational factor or the experience factor.
[9] In her January 15, 2001 decision letter, the visa officer states:
It has been determined that you were untruthful in your statements pertaining to your previous activities in Canada. You did not satisfactorily address my concerns when these were presented to you. I am therefore not satisfied of your credibility on the whole which extends to previous claims regarding your education and work experience.
Since sub-section 11(2) of the Regulations prohibits the issuance of an immigrant visa in your circumstances, you are a member of the class of persons who are inadmisssible to Canada described in paragraph 19(2)(d) of the Immigration Act, 1976. I have, accordingly refused your application.
ANALYSIS
[10] The visa officer changed the initial favourable view of the applicant's application for permanent residence because she determined him not to be credible thereby overriding the documentary evidence the applicant had supplied in support of his application including a letter from his present employer in Pakistan and documentation attesting his university degree in Engineering.
[11] The visa officer reached her credibility finding because she concluded he had been untruthful in denying he had ever been in Canada before.
[12] In her CAIPS notes she wrote:
Applicant maintained throughout enquiry that he was not the same person against whom the warrant was issued and that he had never been in Canada. From the evidence presented I am not satisfied that PI is in fact a different person than the person to whom the warrant was issued. The fact that he was not forthcoming undermines the credibility of the entire application, including claims pertaining to his education and work experience.
[13] The visa officer's affidavit is clearer on this point. She says she concluded the applicant and the Saleem Maan named in the 1993 warrant were the same person and therefore his denial of never having been to Canada before was false.
[14] This view is reflected in the refusal letter when she states that "it has been determined that you were untruthful in your statements pertaining to your previous activities in Canada".
[15] This application does not give rise to fairness arguments such as whether the visa officer had expressed her concerns to the applicant and had provided him with an opportunity to bring forward his case in order to disabuse her.
[16] Rather, this application proceeded on the grounds the visa officer's finding of credibility was unreasonable in the circumstances because there was not a sufficient basis upon which she could make the determination the two individuals were one and the same person.
[17] A finding of credibility is factually based which gives rise to the test provided for in paragraph 18.1(4)(d) of the Federal Court Act "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it", a test akin to the standard of review of patent unreasonableness.
[18] The applicant has failed to persuade me the visa officer's credibility finding was patently unreasonable.
[19] The visa officer had reasonable grounds to believe the two were in fact one. The evidence demonstrated there was a serious possibility this was a fact. The visa officer confronted the applicant with the facts and gave him an opportunity to react. His reaction was a denial but no more.
[20] It is a basic principle of the Immigration Act and Regulations that persons seeking to become immigrants to Canada have the burden of proof of satisfying a visa officer they qualify for admission.
[21] The applicant had an opportunity after being confronted to put to the visa officer evidence he was not the same person as the Saleem Maan named in the 1993 warrant. He could have done this in a number of ways but he did nothing.
[22] In the circumstances and with the evidence before her, the visa officer could reasonably conclude the two were one and draw from that fact the credibility finding she made.
[23] For all of these reasons, this judicial review application is dismissed. No certified question arises.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JULY 11, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3739-01
STYLE OF CAUSE: Salem Ibrahim Maan and the Minister of Citizenship
and Immigration
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: May 29, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
APPEARANCES:
Me Jean-François Bertrand FOR APPLICANT
Me Sherry Rafai Far FOR RESPONDENT
SOLICITORS OF RECORD:
Jean-François Bertrand FOR APPLICANT
Bertrand Deslauriers
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada