Date: 20000926
Docket: IMM-4184-99
BETWEEN:
BU HUI WU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This application seeks the judicial review of a decision of a visa officer dated July 19, 1999, wherein she refused the applicant's application for permanent residence on the basis that he did not meet the requirements of sections 9, 10 and subsection 8(1) of the Immigration Regulations ("the Regulations") and was inadmissible under paragraph 19(2)(d) of the Immigration Act1, ("the Act").
1. Facts
[2] In her decision, the visa officer assessed the applicant in his intended occupation of Cook, Foreign Foods (CCDO # 6121-126) for which she awarded him the following units of assessment:
| AGE 10 |
| OCCUPATIONAL DEMAND 10 |
| SPECIFIC VOCATIONAL PREPARATION 15 |
| EXPERIENCE 2 |
| ARRANGED EMPLOYMENT 00 |
| DEMOGRAPHIC FACTOR 08 |
| EDUCATION 10 |
| ENGLISH 0 |
| FRENCH 00 |
| BONUS 05 |
| PERSONAL SUITABILITY 03 |
| TOTAL 63 |
2. The Applicant's Submissions
[3] The basis of the main argument of the applicant is that the visa officer did not file an affidavit which would have allowed the applicant to cross-examine her on several inconsistencies in her CAIPS notes. The respondent relied on these notes but the applicant is deprived of his right to cross-examination. The inconsistencies would relate to the exact date of the interview, the results of a cooking test, the years of experience of the applicant as a cook and as a chef, the questions that were asked, or not asked, about Toronto or its labour market.
[4] The applicant submits that this matter should be referred back as the CAIPS notes cannot be relied upon by the respondent to establish the actual framework of what occurred in this matter as they were not submitted with an affidavit. The applicant relies on the jurisprudence2 in support of his proposition that in the absence of an affidavit from the visa officer, those notes are not admissible evidence to what took place at the interview.
3. The Respondent's Submissions
The respondent submits that the CAIPS notes may be relied upon as they form part of the Certified Tribunal Record which is properly before the Court pursuant to Rule 318 of the Federal Court Rules, 1998 ("the Rules") and that there is no obligation on the part of the respondent to file an affidavit. The respondent relies on the jurisprudence3 to this effect.
4. Disposition
[5] In my view, there is no obligation on the part of the Minister of Citizenship and Immigration to file an affidavit of the visa officer. The Minister may rely on CAIPS notes as they are part of the Certified Tribunal Record which is properly before the Court. However, there might be circumstances where it would be in the interest of justice for the respondent to file a visa officer's affidavit, especially where there appears to be a flagrant contradiction between the CAIPS notes and other evidence appearing on the Certified Tribunal Record.
[6] In the instant case, there is no need for such an affidavit from the visa officer. The applicant has failed to show that it would be necessary to cross-examine the visa officer on the CAIPS notes in order to have a fair disposition of the essential issues.
[7] As to the decision itself, the applicant has not convinced me that the assessment in his intended occupation was unreasonable. Consequently, this application for judicial review is denied.
[8] A question of general importance in the matter has already been certified and is now before the Federal Court of Appeal. At the request of counsel for the respondent, I will agree to certify the same question. The question is as follows:
| Are a visa officer's notes concerning an interview with an applicant, as entered in CAIPS, evidence of what took place at the interview, in the absence of an affidavit from the visa officer attesting to the truth of what he or she recorded as having been said at the interview? |
OTTAWA, Ontario
September 26, 2000
Judge
__________________2 Wang Le Ming v. MEI, [1991] FCJ No. 10, DRS 91-03004, A-1136-88, 12 IMM LR (2d) 178, 121 NR 243, [1991] 2 F.C. 65, January 8, 1991; Yu Hai QUI v. MCI, [1997] FCJ No. 619, DRS 97-12777, IMM-2715-96, May 16, 1997; Parveen v. MCI, [1999] FCJ No. 660, IMM-3587-98, April 29, 1999; Hai Xiang FENG v. MCI, [1996] FCJ No. 1707, DRS 97-08882, IMM-3557-95, December 31, 1996; Marie DRAGONE v. MCI, [1995] FCJ No. 1217, DRS 95-19481, IMM-539-95, September 20, 1995; Sultan AMIR v. MCI, [1996] FCJ No. 1706, DRS 97-08881, IMM-663-96, December 31, 1996 and Huang Wei WEN v. MCI, [1991] FCJ No. 633, IMM-1556-98, March 10, 1999.
3 Awwad v. Canada (M.C.I.) 1999 CarswellNat 134 (IMM-1003-98, January 26, 1999, F.C.T.D.) and Huang v. Canada (M.C.I.) 1999 CarswellNat 121 (IMM-4352-98, January 27, 1999, F.C.T.D.).