Date: 20000719
Docket: IMM-5607-98
BETWEEN:
EULALIA BEATRICE DES DORES AMIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] This is an application for judicial review in respect of a decision of a visa officer refusing the applicant"s application for permanent residence in Canada.
[2] The applicant, a citizen of India, has resided in Dubai, U.A.E. for approximately fifteen years. The applicant submitted an application for permanent residence in the independent category listing her husband and two children as dependents. In her application, the applicant indicated her intended occupation as executive secretary. In support of her application, the applicant submitted two letters from previous employers, Transmed Overseas Inc. and Gulf Express Freight. At the time of the application, the applicant indicated she was employed as an executive secretary with ABB Calor EMAG Schaltangen. No letter of reference was submitted by the applicant from this company.
[3] In the letter rejecting the application for permanent residence, the visa officer stated as follows:
| At your interview you were given typing and letter drafting tests to assess your secretarial ability. You made numerous errors in the copy typing test and did not attempt to draft the letter. Moreover, when I reviewed your application, I noticed a spelling error in your own CV. You have applied to enter Canada as a Secretary or Executive Secretary, unfortunately, you do not have the necessary skills for these occupations and are best described as an Office Clerk/Typist CCDO 4113124 which is the occupation you would be most likely to follow in Canada...1 |
[4] As the applicant"s application for permanent residence was submitted before May 1, 1997 and was still pending after May 1, 1997, the applicant was assessed under both the Canadian Classification and Dictionary of Occupations ("CCDO") and the National Occupational Classification ("NOC").
[5] Under the CCDO definition of Office Clerk/Typist, the visa officer awarded the applicant forty eight (48) units of assessment. As the applicant failed to receive the required seventy (70) units of assessment, her application for permanent residence was denied. The visa officer indicated in his decision that even under the NOC, the applicant would not have received the required units of assessment.
[6] The applicant raises the following issues on this judicial review:
| 1. Did the visa officer err in law in the manner in which he conducted his interview, in particular, in failing to question the applicant about her skills, qualifications and experience as an executive secretary? |
| 2. Did the visa officer breach his duty of fairness to the applicant by failing to give the applicant an adequate opportunity to answer "the specific case against her on the issues of genuineness of qualifications and references" as well as his concern that the applicant would not be able to find employment as a secretary without significant training? |
[7] It is well established in the jurisprudence that the applicant "bears the onus of convincing the visa officer of all of the positive elements of his application for permanent residence".2
| Issue 1: Failure to question the skills and experience of the applicant: |
[8] The only evidence presented by the applicant at the interview were two reference letters and a verbal description of her duties. In his notes, the visa officer appeared to question the applicant about these letters and other related skills, such as word processing, shorthand, spreadsheets, and "pictorial representation".3 In the affidavit filed by the visa officer on this application, he deposed that he took the time to mark the typing test in the applicant"s presence and that he informed her that "her typing did not appear to meet the standards required of an executive secretary". Based on her obvious lack of typing skills, and other questions posed, the visa officer came to the conclusion the applicant would require significant training to find employment as an executive secretary in Canada.
[9] Although counsel for the applicant maintained his submissions were substantiated by the sworn affidavits of the applicant, the visa officer, and the CAIPS notes, he was unable to point to any specific facts or statements to support the ascertion that the visa officer"s conclusions were unreasonable.
| Issue 2: Breach of the duty of fairness: |
[10] The applicant submits the visa officer breached his duty of fairness to the applicant in two ways. First, the visa officer did not allow the applicant the opportunity to address his concerns about the genuineness of her qualifications and references. Second, the visa officer did not allow the applicant the opportunity to address his concern about her ability to find employment as an executive secretary or secretary without significant training. The applicant submits the duty to act fairly is breached if the visa officer makes a decision without giving the applicant an opportunity to respond to any negative information the visa officer has received, or concerns that have arisen during the course of the application process.
[11] Although a visa officer may not have a duty to counsel, advise or even seek clarification from an applicant,4 the visa officer does have the duty to "consider fully the submissions and information provided by an applicant".5 Further, where a visa officer has an impression of deficiency in the proof being offered by an applicant, fairness requires that the visa officer give the applicant some opportunity to disabuse the visa officer of that impression.6
[12] The extent to which an opportunity should be given to an applicant to disabuse the visa officer of concerns was discussed by Muldoon J. in Asghar v. Canada (Minister of Citizenship and Immigration)7 where he stated:
| It is still not clear in what circumstances procedural fairness requires that the visa officer apprise the applicant of his concern. However, from the authorities cited above one may conclude that this duty does not arise merely because the visa officer has not been convinced, after weighing the evidence, that the application is well founded. The visa officer"s task is precisely to weigh the evidence submitted by the applicant. In the Court"s words, in light of the onus that is on the applicant to produce evidence, it is not apparent that the visa officer should be compelled to give him a "running-score" at every step of the proceeding. |
[13] In her affidavit, the applicant states as follows with respect to the visa officer"s treatment of her reference letters and qualifications:
| ... During interview, the visa officer failed to indicate to me that he had concerns regarding my qualifications, experience and skills for my intended occupation. I was not afforded an opportunity to confront, contradict, correct address/answer those concerns and present evidence to establish that I was indeed qualified as an Executive Secretary... |
| The visa officer in his notes made observation that references and experience should be verified very closely with employer, and that qualifications should also be verified. However, the interview notes suggest that his was not pursued with any of my employers or myself, despite rhetoric to that effect. |
[14] The affidavit of the visa officer tells a different version of the events:
| I asked the applicant about her reference letters. She provided a verbatim description of her duties from the letters and did not provide further details. It was clear that she had carefully rehearsed this information for the interview. |
| I also asked the applicant why the information in her references was so similar. Two of the letters are from different companies and are dated four years apart. However, they had the same typeface, format and general content and contained the same error: only one space after a full stop, and numbers of less than ten in value are expressed in numerical form. The applicant did not offer any explanation for the similarities between the two letters. |
[15] Neither party cross-examined the other on the affidavits submitted. However, the notes of the visa officer lend weight to the assertion that the visa officer did question the applicant in the manner he described:
| ... Refs from Trans Med and Gulf Express Freight are virtually identical yet dated 4 yrs apart. SBJ cannot offer an explanation. |
[16] The notes of the visa officer also indicate he was not as concerned about the genuineness of the applicant"s references as he was about her total lack of ability to type quickly and her failure to draft the letter in the required time:
| ... aside from issue of whether quals, refs are genuine. SBJ"s CV has errors, she did not complete typing test or even attempt to draft ltr which other secs tested during this trip have managed without difficulty. |
[17] Having regard to the CAIPS notes and the affidavit of the visa officer, I am of the opinion he gave the applicant a reasonable opportunity to respond to his concerns about her qualifications.
[18] The visa officer also pointed out the typographical errors on the applicant"s CV and asked her directly about her reference letters. It is clear he was less concerned about the genuineness of the reference letters and more concerned about her lack of typing skills. Further, the applicant was made aware of the numerous errors in her typing test and that her testing typing speed was 23 words per minute. She was made aware of her lack of skills and could offer nothing to change the visa officer"s assessment of her in that regard. In my view there is no evidence of procedural unfairness in this case.
[19] Accordingly the application for judicial review is dismissed.
[20] Neither party had a question to submit for certification.
"Dolores M. Hansen"
J.F.C.C.
__________________2 Hi v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1269 at paragraph 23.
4 Hajariwala v. Canada [1989] 2 F.C. 79 at page 83.
5 Saggu v. Canada (Minister of Citizenship and Immigration) [1994] F.C.J. No.1823 at pragraph 16.
6 Muliadi v. Canada (Minister of Employment and Immigration)[1986] 2 F.C. 205 at 215 (C.A.)