Date: 20010817
Docket: IMM-5816-99
Neutral citation: 2001 FCT 905
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] Mr. Mohamed brings this application for judicial review of the decision made on October 21, 1999 by a visa officer at the Canadian Embassy in Paris, France, which decision denied Mr. Mohamed permanent residence in Canada.
[2] Mr. Mohamed's application record shows that he obtained a Bachelor of Arts degree in Social Work from The Higher Institute of Social Work in Cairo, Egypt in 1989. With his application for permanent residence Mr. Mohamed submitted reference letters from two of his employers, indicating that he had worked in a school setting as what was called a "Social Specialist" in Egypt between 1989 and 1994, and in the United Arab Emirates since 1996.
[3] The visa officer assessed the applicant in the occupation of social worker and awarded the applicant 69 units of assessment, 1 unit short for an immigrant visa to issue. At issue in this application are the visa officer's conclusions that Mr. Mohamed be awarded four units of assessment on account of personal suitability, and four units of assessment on account of experience.
[4] With respect to the assessment of personal suitability, Mr. Mohamed argued that the visa officer reduced the assessment because Mr. Mohamed spoke English only well, and not fluently. This was said to be an impermissible double counting of language skills.
[5] While the visa officer did not swear an affidavit in opposition to this proceeding, her CAIPS notes were before the Court and are admissible as reasons for the decision under review. (see: Chou v. Canada (Minister of Citizenship and Immigration) (2000), 190 F.T R. 78 (T. D.)). Those reasons are express that the assessment of personal suitability reflected the visa officer's concerns about Mr. Mohamed's lack of preparation for immigration and his reliance upon others, and not any concern about his language ability. I can find no fault with the visa officer's decision in that regard.
[6] As to the assessment of Mr. Mohamed's experience, it was acknowledged by counsel for the respondent that the reason the visa officer awarded Mr. Mohamed four units of assessment on account of experience was that the visa officer discounted Mr. Mohamed's work experience in Egypt. From a review of the CAIPS notes I am satisfied that this was because the reference letter from Mr. Mohamed's employer in Egypt did not list the duties and responsibilities he performed on the job. In the words of the CAIPS notes:
4POINTS EN EXPERIENCE CAR CERTIFICAT DE TRAVAIL DE L'ACADEMIE DES ARTS NE DONNENT AUCUNE INFORMATION SUR SES RESPONSABILITES ET TACHES. NE PEUT PAS ETRE CONSIDERE
[7] The relevant evidence on this point is as follows.
[8] Both employment reference letters sent with Mr. Mohamed's application for permanent residence confirmed the employer, the dates of Mr. Mohamed's employment and his position. The CAIPS notes show that the screening officer who reviewed the application found it necessary to request a "more precise" letter of reference from Mr. Mohamed's employer in the United Arab Emirates in order to better assess Mr. Mohamed's duties and responsibilities in his position with that employer. No similar request was made in respect of Mr. Mohamed's employer in Egypt. On July 1, 1999 a document was therefore sent to Mr. Mohamed requesting that he submit "[r]ecent work certificate describing your exact list of duties. Transcript of your bachelor degree in social work; certified translation".
[9] In reply, Mr. Mohamed provided a third letter of reference dated September 5, 1999 which reconfirmed that Mr. Mohamed had been employed by the Al Qassimia Primary School for Boys in the United Arab Emirates from 1996 and which listed Mr. Mohamed's duties and responsibilities with that institution.
[10] On October 6, 1999, Mr. Mohamed attended an interview with the visa officer. The CAIPS notes indicate that the visa officer inquired into the nature of Mr. Mohamed's duties and responsibilities as a social worker, especially as it related to his work in the United Arab Emirates. With respect to Mr. Mohamed's employment in Egypt, the CAIPS notes record the following:
-1ER CERTIFICAT DE TRAVAIL A L'ACADEMIE DES ART INDIQUE SOCIAL WORKER MS NE DONNE AUCUNE INDICATION.
CDAT DIT S'ETRE OCCUPE D'ADOLESCENTS AVEC PROBLEMES D'ADOLESCENT...REACTION NEGATIVE ENVERS LES PARENTS...FORME DE REJET DE LA STE....EN GENERAL
[11] Mr. Mohamed's swore in his affidavit filed in support of this application that:
9. At no time during the interview was I told that I did not have sufficient evidence of my social work experience, in Egypt or in the U.A.E.
[...]
11. I was not told during the interview or at any time that my evidence of social work experience in Egypt was going to be rejected.
[12] I accept Mr. Mohamed's assertion that he was not advised of the visa officer's concern regarding the inadequacy of his evidence in respect of his experience in Egypt. His evidence is unchallenged on this point and it is, in any event, not in contradiction with the officer's CAIPS notes.
[13] Mr. Mohamed also attached as an exhibit to his affidavit what he swore were notes he prepared of the interview. In those notes, he reported that he was asked the following by the visa officer "[c]an you send me the reports about the children in Egypt and the U.A.E.? [a]nd it will take around another 18 months to finalize the case". Mr. Mohamed's notes state that he responded that he would send the requested work reports, but that he noted that 18 months to finalize the case would be a very long time, and he believed that he had waited enough time. The notes go on to recount that the visa officer then told him that it would no longer be necessary for him to send any further reports, and that the visa officer would review the file and send Mr. Mohamed a decision within two weeks.
[14] The CAIPS notes do not contradict these assertions, and Mr. Mohamed was not challenged upon this evidence. Given the lack of contradiction, Mr. Mohamed's version of events must be presumed to be true.
[15] On this evidence, I find that the visa officer breached the duty of fairness required of her when she concluded that Mr. Mohamed's work experience gained in Egypt be disregarded. I reach this conclusion for the following reasons.
[16] First, in view of the fact that Mr. Mohamed was specifically advised by the Embassy that a more specific letter was required in respect of his recent work experience, I find it unfair to discount Mr. Mohamed's prior work experience on the sole ground that the reference letter he provided from that employer lacked the same specificity. Put another way, given that amplification was sought with respect to one letter, similar amplification should have been sought at the same time with respect to the other letter.
[17] Second, initially at the interview the visa officer requested a further report about Mr. Mohamed's experience in Egypt. It was inconsistent with the duty of fairness to reverse that request only after Mr. Mohamed agreed to do so, but demurred about the further 18-month delay this was said to cause.
[18] As a result of this breach of the duty of fairness, I have concluded that the application for judicial review should be allowed and the matter remitted for redetermination by another visa officer.
[19] Counsel for the respondent shall have until the close of business at the Registry of the Court in Ottawa on Friday the 24th day of August 2001 to provide to the Court and to counsel for the applicant any written submissions on certification of a question. Thereafter, counsel for the applicant will have until the close of business at the Registry of the Court in Ottawa on Friday the 31st day of August 2001 to provide to the Court and to counsel for the respondent any submissions on behalf of the applicant. Counsel for the respondent will have to the close of business on Wednesday the 5th day of September 2001 to provide any reply submissions to the Court and to counsel for the applicant. Following consideration of any submissions received an order allowing this application for judicial review will issue.
"Eleanor R. Dawson"
Ottawa, Ontario
August 17, 2001