Date: 20011106
Docket: IMM-601-01
IMM-1330-01
Neutral citation: 2001 FCT 1216
BETWEEN:
MOHAMMED CHAUDHRY ASLAM
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] In the present case, the Applicant was refused permanent residence under the assisted relative program. However, since the Visa Officer's decision was initially made on an incomplete record through no fault of the Applicant, the issue is whether the decision in the end result can stand.
[2] With respect to his application, the Applicant's counsel provided submissions and supporting evidence on December 4, 2000, the Visa Officer concerned interviewed the Applicant on January 8, 2001, and a negative decision was rendered on January 9, 2001.
[3] However, before the decision was received by the Applicant, because a negative decision was feared, on January 10, 2001 the Applicant's counsel sent the Visa Officer a letter requesting further consideration. With respect to these submissions, the Visa Officer's CAIPS notes contain the following passage written on January 6, 2001:
I HAVE NOTED THAT THE CONSULTANT REFERS TO A FAX THAT HE SENT ON 4 DEC 00 RE AN OFFER OF EMPLOYMENT. THIS IS NOT ON FILE. BEFORE WE SEND CONFIRMATION OF REFUSAL, MEH, PLS FAX THE CONSULTANT AND ASK FOR A COPY OF THE FAX WITH PRF THAT IT WAS SENT TO US IN DECEMBER. STRANGE THAT CONSULTANT REFERS TO AN OFFER OF EMPLOYMENT FROM FAMILY BIZ, WHEN APPL SAID THAT HE HAD NO CONTACTS IN THE TEXTILE INDUSTRY AND DID NOT INTEND TO WORK WITH HIS FAMILY IN CDA. HOWEVER, IN THE INTERESTS OF FAIRNESS, NEED TO SEE THE FAX MENTIONED. [Emphasis added]
[4] It is agreed that the December 4, 2000 material was received, but apparently was not passed on to the Visa Officer for consideration. Thus, the Visa Officer did ask the Applicant to resubmit the material for her consideration. However, on the reconsideration, without any request for further submissions, the application was again refused on February 2, 2001.
[5] Both the Applicant and the Respondent agree that the Visa Officer had the authority to reconsider her decision, but in doing so, she had an obligation to accord with the duty of procedural fairness. The Applicant submits that procedural fairness required the Visa Officer to consider the matter "afresh", including a new interview or allowing written submissions to address any concerns she had with the application. The Respondent argues that the Visa Officer was under no obligation to conduct a second interview and that, since she had no concerns, submissions were not necessary.
[6] The case law traces back to the general principle outlined in the 1989 Supreme Court of Canada decision in Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848 that justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. In Chandler, Justice Sopinka found that if the error which renders the decision a nullity is one that taints the whole proceeding, then the tribunal must start afresh.
[7] There is no disagreement that, without considering the December 4, 2000 material, the Visa Officer's January 9, 2001 decision is a nullity. However, there is disagreement on whether this failure tainted the whole proceeding. That is, the question becomes: "In the present case, did the failure to consider the December 4, 2000 submissions and supporting evidence taint the proceeding resulting in the January 9, 2001 decision so as to require the Visa Officer to start afresh to consider the Applicant's application rather than to proceed on a reconsideration as she did?" In my opinion, the answer is: "Yes".
[8] The January 9, 2001 interview with the Applicant left the Visa Officer with the impression that the Applicant did not intend to work with his family in Canada. However, the unconsidered December 4, 2000 material raises a doubt as to the accuracy of this impression. In my opinion, this doubt in turn raises questions which, if unanswered as they were, puts a taint on the whole proceeding, thus requiring the Visa Officer to consider the application afresh to guarantee procedural fairness. Since she did not do so, I also find that the February 2, 2001 decision is a nullity.
ORDER
Accordingly, I set aside the January 9, 2001 decision and the February 2, 2001 decision and refer the Applicant's application to a different Visa Officer for reconsideration.
"Douglas Campbell"
Judge
WINNIPEG, MANITOBA
NOVEMBER 6, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-601-01
IMM-1330-01
STYLE OF CAUSE: Mohammed Chaudhry Aslam v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: November 6, 2001
ORDER AND REASONS FOR ORDER OF
THE HONOURABLE MR. JUSTICE CAMPBELL
DATED NOVEMBER 6, 2001
APPEARANCES
Mira Thow for the Applicant
Nalini Reddy for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg, MB R3C 0S6
SOLICITORS OF RECORD
Mira Thow for the Applicant
Zaifman Associates
5th floor, 191 Lombard Ave
Winnipeg, MB R3B 0X1
Morris Rosenberg for the Respondent
Deputy Attorney General of Canada