Federal Court Decisions

     IMM-4413-96

BETWEEN:

     ANGLICAN CHURCH DIOCESE

     OF MONTREAL CANADA

     - and -

     SORAYA AYUBI

     MOHAMED SALEH AYUBI

     SHABNAM AYUBI

     BAHARA AYUBI

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD J.

         The applicants seek judicial review pursuant to subsection 82.1(2) of the Immigration Act, R.S.C. 1985, c. I-2, (hereafter "the Act") of a decision of Vonne Solis, Immigration Program Officer of the Immigration Section of the Canadian High Commission in Islamabad, Pakistan, rendered September 25, 1996, refusing their application for permanent residence in Canada as Convention refugees seeking resettlement¹.

         The visa officer concluded that the applicants were not Convention refugees as defined in subsection 2(1) of the Act, and therefore were not eligible for resettlement in Canada. The visa officer stated:

After carefully and sympathetically reviewing all factors relative to your application, I have determined that you do not meet this definition and you would not be suitable for resettlement in Canada because you are in Pakistan under the protection of the Pakistani government; you are not experiencing any known credible security problems here, and there is no threat of refoulement to Afghanistan.

         The visa officer also indicated that she assessed whether the applicants met the criteria for independent applicants, but that the principal applicant had obtained insufficient units of assessment to qualify. No breakdown of the units of assessment obtained was given.

         Finally, the visa officer stated that she considered possible humanitarian and compassionate grounds, but determined that there were insufficient grounds to warrant special consideration.

         The visa officer who rendered the decision in the present case has not filed an affidavit indicating her reasons for finding that the applicants did not qualify as Convention refugees seeking resettlement. The applicants, however, have filed affidavits in which they allege that the visa officer ignored evidence they presented to her during the interview, and failed to confront them with unspecified adverse extrinsic evidence that influenced her negative decision.

         It is my opinion that the applicants' evidence on this point is effectively uncontradicted, as the notes taken by the visa officer are not properly in evidence before this Court. In Wang v. Canada (M.E.I.), [1991] 2 F.C. 165, the Federal Court of Appeal considered the evidentiary value of notes taken by a visa officer during an interview with an applicant for permanent residence in the independent category. In a similar situation to the case at bar, the visa officer in Wang who actually conducted the interview did not file an affidavit. Another immigration officer filed an affidavit purporting to place the visa officer's notes into evidence. Justice Mahoney made the following comments, at page 170:

The second matter is fundamental. It is, in substance, an appeal against the order excluding the visa officer's memorandum from evidence. The respondent argues that, because of the inconvenience of arranging depositions by visa officers who, by definition, are outside Canada, the Court ought to accept their notes and memoranda as proof of the truth of their contents even though no affidavit averring to that truth is filed. In this, as in some of the other appeals dealt with serially, the visa officer concerned produced notes made during the interview and/or a memorandum made considerably later setting forth his recollection. These were produced as exhibits to the affidavit of an immigration officer in Canada who had reviewed the pertinent file and selected material considered relevant to the proceeding in Court.

I see no justification for deviating from evidentiary norms in these circumstances. No legal basis for acceding to the respondent's argument has been demonstrated and, in my opinion, it is devoid of a practical basis. In the first place, unless the error said to vitiate the decision appears on the face of the record, the intended immigrant also, by definition, outside Canada must depose to his or her evidence and, unlike the visa officer, may not be conveniently located to do so. There is no justice in according one witness to the proceeding an opportunity to present evidence in a manner that precludes it being tested by cross-examination. In the second place, the suggestion of administrative inconvenience seems flimsily based. Given that visa officers normally inhabit premises in which may be found other functionaries before whom affidavits acceptable in Canadian courts may be sworn, there seems no practical reason why his or her version of the truth cannot, with equal convenience, be produced in affidavit as in memorandum form. Finally, should a disappointed applicant wish to inconvenience a visa officer by a cross-examination there is the sanction that the right will have to be exercised, at least initially, at some considerable expense to the applicant.

As I indicated previously, in my opinion the appeal must be allowed because the finding that the visa officer assessed the appellant in respect of the alternate occupation proposed is contrary to the evidence. On balance, considering remedy, I am of the view that the interests of justice will be better served by a total reconsideration of the application, rather than one limited to the alternate occupation.

         In the case at bar, while the visa officer's notes no doubt form part of the record, they may not be used as proof of the truth of their contents, for the reasons given above in Wang².

         In the absence of a sworn affidavit by the visa officer, the only evidence validly before this Court concerning the applicants' interview with the visa officer indicates that the applicants stated that they had encountered problems with Pakistani police and with Afghan government terrorists. The applicants depose that neither of them were confronted with any information that could have lead the visa officer to conclude that they were under the protection of the Pakistani government, and were experiencing no credible security threats in Pakistan. Under such circumstances, in the absence of any sworn statement from the visa officer who made the decision, the applicants' version of events must be presumed to be true.

         Consequently, the present application is granted and it will be ordered that the applicants' application for permanent residence in Canada dated November 27, 1995, be reconsidered de novo by a different visa officer. I agree with counsel for the parties that this matter raises no question of general importance within the meaning of subsection 18(1) of the Federal Court Immigration Rules, 1993.

OTTAWA, Ontario

June 4, 1997

                                

                                         JUDGE

__________________

     ¹      Subsection 2(1) of the Immigration Regulations, 1978 , SOR/78-172, defines a "Convention refugee seeking resettlement" as follows:          "Convention refugee seeking resettlement" means a Convention refugee who has not become permanently resettled and is unlikely to be voluntarily repatriated or locally resettled;

     ²      See also Fung v. Canada (M.E.I.) (1991), 121 N.R. 263 (F.C.A.), and Gaffney v. Canada (M.E.I.) (1991), 121 N.R. 256 (F.C.A.).