Date: 20001130
Docket: IMM-3137-99
BETWEEN:
MAHMOUD MAGDI Abdel Moneim
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review against a decision of George Sutherland (the visa officer), rendered on May 25, 1999, refusing the permanent resident application of Mr. Mahmoud Magdi Abdel Moneim (Applicant) filed in Cairo, Egypt.
[2] On April 21, 1997, the Applicant filed a permanent resident application, in the independent category, at the Canadian embassy in Cairo, Egypt, to immigrate to Canada with his family.
[3] On January 4, 1998, visa officer Mona Fahmy refused his application.
[4] On July 20, 1998, Teitelbaum J. granted the application for judicial review filed by the Applicant and ordered that the permanent resident application be evaluated by a new visa officer.1
[5] On September 21, 1998, visa officer George Sutherland of the Canadian embassy in Cairo, Egypt evaluated the Applicant in order to determine whether or not he could immigrate to Canada as an "accountant".
[6] The visa officer informed the Applicant by letter dated May 25, 1999 that the application was refused because the Applicant failed to obtain the minimum of 70 points of assessment required by the Immigration Regulations, 1978.2 The Applicant had obtained 66 points under the C.C.D.O. and 63 points under the N.O.C.
[7] The visa officer also refused the application because the Applicant failed to answer truthfully all questions put to him.
[8] The Applicant first submits that the attitude and conduct of the visa officer demonstrated a reasonable apprehension of bias.
[9] The Applicant and his wife both filed an affidavit with respect to the attitude and conduct of the visa officer during the interview of September 21, 1998. The Applicant alleges that the visa officer shouted at him, behaved in a confrontational matter, was aggressive, was in an impatient mood, and accused the Applicant of lying concerning his experience as "Second Accountant".
[10] The visa officer also filed an affidavit in which he denies the allegations raised by the Applicant. The visa officer states that he clearly remembers not shouting at the Applicant and not conducting the interview in an aggressive and impatient mood and that he did not tell the Applicant that he was lying about his experience as "second accountant".
[11] The test for reasonable apprehension of bias was enunciated in Committee for Justice and Liberty et al.:
| [...] the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude".3 |
[12] In the present matter, the Applicant failed to demonstrate that the visa officer was partial during the interview of September 21, 1998. The Court is facing contradictory evidence which makes it very difficult to determine what really happened during the interview. Even if the visa officer would have shown some aggressiveness towards the Applicant, this would not give rise to a reasonable apprehension of bias.4
[13] It is clear that an informed person viewing the matter realistically and practically and having thought the matter through would conclude that there is no reasonable apprehension of bias arising from the attitude and conduct of the visa officer.
[14] Secondly, the Applicant submits that the visa officer took an unduly restrictive approach to his application by strictly adhering to the requirements for the position of "accountant" which are set out in the C.C.D.O. and the N.O.C.
[15] The visa officer considered the overall work experience and tasks performed by the Applicant, as indicated in the CAIPS notes and his affidavit, before concluding that the Applicant did not meet the requirements provided by the C.C.D.O. and the N.O.C. and consequently did not allocate any unit of assessment for experience.
[16] The Applicant has admitted that he does not perform all of the specified duties but that he performed some of them. I do not believe that the N.O.C. and the C.C.D.O. can be read in such a narrow way as to exclude an applicant because he does not perform all the specified duties. The N.O.C. states that an accountant performs some or all of the specified duties.
[17] Although I recognize that it is entirely within the mandate of the visa officer to give greater weight to certain duties, it is unreasonable, in my opinion, to give zero unit of assessment for experience to an accountant who has performed some of the key duties for at least two years.
[18] For example, as I noted in Patel,5 it is interesting to consider the specified duties of a judge provided in the N.O.C. to understand that these requirements have to be assessed with a certain degree of flexibility. As an example, it is interesting to read the main duties of a judge provided in the N.O.C.:
| Main duties |
| Judges perform some or all of the following duties: |
| · Preside over courts of law, interpret and enforce rules of procedure and make rulings regarding the admissibility of evidence |
| · Instruct the jury on laws that are applicable to the case |
| · Weigh and consider evidence in non-jury trials and decide legal guilt or innocence or degree of liability of the accused or defendant |
| · Pass sentence on persons convicted in criminal cases and determine damages or other appropriate remedy in civil cases |
| · Grant divorces and divide assets between spouses |
| · Determine custody of children between contesting parents and other guardians |
| · Enforce court orders for access or support |
| · Supervise other judges and court officers.6 |
[19] It is obvious that, as a Federal Court Judge, I do not perform duties in either criminal or family law, and consequently, I do not meet many of the requirements.
[20] Further, I am of the view that the visa officer erred in ignoring relevant evidence. The Alexandria Port Authority has vouched for the authenticity of the documentation confirming his promotion to "Second Accountant". The result of the verification was conclusive and could not be disregarded by the visa officer because it conflicted with some minor discrepancies in the Applicant's affidavit and in his interview about the timing of the promotion. The fact is that the documentation confirms that he has been promoted "Second Accountant" for at least two years.
[21] Finally, with regard to the application of subsection 9(3) of the Act, I am of the view that a few discrepancies on the timing of the promotion as Second Accountant, which were explained in the Applicant's affidavit, cannot provide a sufficient basis for the visa officer to conclude that the answers were untruthful.
[22] For these reasons, the decision dated May 25, 1999 is quashed and the matter is sent back for redetermination by a different visa officer other than Mona Fahmy and George Sutherland.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
November 30, 2000
__________________1 (20 July 1998), IMM-4355-96 (F.C.T.D.).
3 Committee for Justice and Liberty et al. v. Canada (National Energy Board), [1978] 1 SCR 369 at p. 394.
4 P. Garant, Droit administratif, 4th ed., vol. 2 (Cowansville: Éditions Yvon Blais, 1996) at 393ff.
5 Shailesh Babubhai Patel v. M.C.I. (30 November 2000), IMM-1121-00 (F.C.T.D.).
6 National Occupational Classification 1992, code 4111 Judges.