Date: 19980415
Docket: IMM-1205-97
BETWEEN:
WAI YIP CHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.
[1] These reasons arise out of an application for judicial review of a decision of a visa officer given at Buffalo, New York, in which the visa officer rejected the applicant's application for permanent residence in Canada. The decision is dated the 9th of February, 1997.
[2] The applicant is a British citizen and a permanent resident of Hong Kong. He filed his application for permanent residence in Canada at Buffalo, New York in June of 1996. His application was supported by an offer of employment from his brother-in-law in Canada. The offer was for the position of assistant manager of a restaurant. The job offer had previously been approved by the Business Immigration Unit of the respondent's ministry under the Family Business Position of Trust Guidelines.
[3] The applicant was interviewed by the visa officer on the 29th of January, 1997. On the basis of the material properly before the Court, it was evident that the visa officer, prior to the interview, had reviewed the applicant's application and notes prepared as a result of the "paper screening" of the application. The visa officer's interview notes clearly indicate that the visa officer was concerned that the applicant's application demonstrated no apparent job training or management experience in his intended occupation in Canada and that a discrepancy appeared to exist between information in the application and in the letter of support received from the applicant's brother-in-law.
[4] In rejecting the applicant's application, the visa officer wrote:
| At your interview on January 29, 1997, I expressed to you my serious concern that you did not appear to qualify for selection as a restaurant assistant manager, an occupation for which a family business offer for a position of trust was approved by the Canada Immigration Centre North York. You provided evidence of part-time studies for an electrical engineering apprenticeship along with letters of reference from three employers for whom who worked as an electrician in Hong Kong. At no time during you employment as an electrician with any of these companies, did you work either as an assistant manager or manager. You also indicated that you were employed with the Danish Bakery Fast Food Restaurant in Hong Kong on a part-time basis for nine years and, as such, I asked you to describe your occupation and your duties and responsibilities. I cautioned you that failure to disabuse me of my concern, could lead to refusal of your application. You responded that this business was owned by your uncle and that you were hired to change the cooking oils, marinate chicken wings, act as a cook's assistant, and provide customer service. You further stated that there is no record of your employment because your uncle always paid you in cash. When I advised you that the position of trust was approved for the occupation of assistant manager, you changed your response stating that you were employed as a manager in your uncle's business and that you could obtain a letter of reference from him. However, such a letter would be perceived as self serving. I then advised you that you had not disabused me of my concern. |
[5] Counsel for the applicant urged that the visa officer erred in a reviewable manner by failing to observe principles of natural justice and procedural fairness when assessing the applicant's application. Counsel urged that the visa officer approached the interview with a closed mind or was biased, failed to provide a full opportunity at the interview for the applicant to explain his experience in restaurant management and failed to provide the applicant an opportunity, following the interview, to bring forward documentary material demonstrating his experience in restaurant management.
[6] In support of the application, counsel for the applicant filed affidavit material that was not before the visa officer. On the basis of representations from counsel for the respondent, I rejected the invitation to consider such material. It is trite to say that, except in limited circumstances not here applicable, evidence considered on an application for judicial review should be limited to the material that was before the federal board, commission or other tribunal the decision of which is being reviewed.1
[7] Counsel for the applicant conceded before me that the applicant's application for landing in Canada was deficient in relation to evidence of management experience in the restaurant business. Thus, he further conceded that the visa officer's concerns going into the interview with the applicant were reasonably founded.
[8] In Nicolae v. Canada (Secretary of State)2, Associate Chief Justice Jerome summarized the duties of visa officers in appraising applications such as that of the applicant here by reference to Saggu v. Canada (Minister of Citizenship and Immigration)3. Associate Chief Justice Jerome wrote:
| ... a visa officer has a duty to consider fully the submissions and information provided by an applicant. A failure to do so will result in doubt as to whether a proper assessment of the applicant has taken place, ... . As a matter of fairness, the record should show that the applicant was given the opportunity to provide information in support of his current experience in each included occupation: ... |
| ... |
| The onus is on the applicant to establish that he/she meets the selection criteria established by the Regulations, and that admission to Canada would not be contrary to the Act and Regulations. ... |
| ... |
| Where the visa office has an impression of deficiency in the proof being offered by an applicant, there may be a duty to give the applicant some opportunity to disabuse the visa officer of that crucial impression. The duty of fairness owed to the applicant may require that such an opportunity be given: ... |
| ... |
[9] On the evidence before me, it is clear that the visa officer fully considered the written submissions by and on behalf of the applicant prior to the interview. It was this review that focussed the interview on the lack of evidence of management experience in the restaurant field. On the evidence properly before me, I cannot conclude that the visa officer approached the interview with a closed mind or with an attitude or interviewing style that evidenced bias. On the contrary, the evidence indicates that the visa officer identified her concerns to the applicant and provided him an opportunity to address those concerns. The applicant failed to satisfy the visa officer with respect to those concerns. I am satisfied that the visa officer's conclusion in this regard was reasonably open to her. In the result, the applicant failed to meet the onus on him to establish that he met the selection criteria applicable on the facts of this matter.
[10] I find no reviewable error on the part of the visa officer. Put another way, I conclude that the visa officer's decision to reject the applicant's application for landing in Canada was reasonably open to her on the material before her and the results of the interview of the applicant. I find no basis to conclude that the applicant was denied natural justice or procedural fairness in the manner in which his application was dealt with.
[11] For the foregoing reasons, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
Judge
Toronto, Ontario
April 15, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1205-97
| STYLE OF CAUSE: WAI YIP CHAN |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: APRIL 14, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON, J.
DATED: APRIL 15, 1998
APPEARANCES:
Mr. Edward F. Hung
For the Applicant
Ms. Lori Hendriks
For the Respondent
SOLICITORS OF RECORD:
Hung & Associates
Barristers & Solicitors
1033 Bay Street
Suite 319
Toronto, Ontario
M5S 3A5
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980415
Docket: IMM-1205-97
Between:
| WAI YIP CHAN |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 See Farhadi v. The Minister of Employment and Immigration, March 20, 1998, Court files IMM-3084-97 and IMM-566-97 (F.C.T.D.), (not reported).