Date: 20040219
Docket: IMM-2121-02
Ottawa, Ontario, this 19th day of February, 2004
Present: The Honourable Justice James Russell
BETWEEN:
IMRAN AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the decision of Designated Immigration Officer, Khalid Gebirrebbi ("Officer"), dated March 25, 2002 ("Decision"), dismissing the application of Mr. Imran Ahmed ("Applicant") for an immigrant-visa.
BACKGROUND
[2] Between 1998 and the present, the Applicant, who lives in Tanzania has made three applications for a visa as an independent applicant to Canada. His first application, made in 1988, was refused. In his 1999 application, he stated that he was a businessman and the new sales manager of an enterprise known as Quality Computers as of July 1999. He included in his 1999 application a letter from Quality Computers saying that he commenced employment in July 1999 in sales and marketing. The Applicant's 1999 independent application was refused because he had given conflicting information on his first application in 1998.
[3] In his present application, the Applicant says that he has been working at Yeah Enterprises in Dar-es-Salaam, Tanzania, full time since October, 2000, as an information systems analyst / systems administrator / accountant. A letter from Yeah Enterprises says that he worked there since June, 1998, on a part-time basis while he was also the director of Computer World. He did not mention Quality Computers anywhere in his present application.
[4] During the interview, the Applicant told the Officer that he had started a company called Computer World in April, 1998, and that he was involved with this company until May, 1999. The reference letter from Computer World, however, says that the Applicant's involvement lasted until February, 2000. When asked to explain this discrepancy, the Applicant said that he remained with Computer World to help the owner with unfinished business. When he was asked by the Officer why he had stated in his application that Computer World had closed in 1999, the Applicant indicated that there must have been a misunderstanding.
[5] The Applicant admitted to the Officer in the interview that he had never worked with Quality Computers, as he had alleged in his 1999 application, and that he had never received a salary from that company.
[6] According to the CAIPS notes, the Officer explained to the Applicant his concerns with inconsistencies regarding his work experience and his reference letters, and that he was considering refusing his application because of the credibility concerns. The Applicant admitted that he should have made sure the letters he produced stated exactly what his responsibilities were and that he should not have produced a reference letter from a company for which he had never worked.
[7] The Applicant says that he worked as a systems administrator from March 1997 to March 1998 with Exim Bureau de Change. He also says that he worked as an accountant during that period with the same company. The reference letter produced from Exim Bureau de Change indicates that the Applicant worked there as an assistant accountant from March, 1997 to February, 1998. When asked why there was no mention of his systems administrator duties, the Applicant stated that Exim Bureau de Change was not happy at his leaving and so produced a reference letter that did not accurately reflect his duties.
[8] There was no mention in the Applicant's reference letter from Computer World that he did database development or computer program design. His duties at Computer World were described in the reference letter as marketing, handling cases, office management and training clients.
[9] The Applicant also alleged that he worked for Yeah Enterprises of Dar-es-Salaan, Tanzania, on a part time basis. The Applicant says that his work there consisted of systems administration and accounting duties, including data entry of sales using excel, generating reports, preparing inventory using an accounting package, and network administration using NT4. The Applicant says he began working for Yeah Enterprises full time in October, 2000, and he produced a reference letter for this period. According to this letter, his duties were computerizing manual accounts. During the interview, the Applicant described this activity as the inputting of data into the computer system, handling computer systems and troubleshooting.
DECISION UNDER REVIEW
[10] On November 16, 2000, the Canadian High Commission ("CHC") in Nairobi received the Applicant's most recent application. It was submitted in the assisted-relative category and included three employment letters.
[11] On March 1, 2001, the first reviewing officer entered the following into the Computer Assisted Immigration Processing System ("CAIPS"):
It appears that the duties performed by PA [principle applicant] are as per the NOC for tech sales specialist. ... Letter from current employer states that PA is a systems administrator/accountant. Letter from the former employer states that PA was in the sales and marketing field.
...
Summary: PA appears to have knowledge of computers and experiences as a sales & marketing person. Need to request for detailed job description to compare duties with the NOC.
[12] On March 2, 2001, a second officer, who appears to have been Designated Visa Officer, Mutheu Kisuvani, noted that the first officer had directed as follows:
Pls request job description - if it checks out, will probably recommend to waive interview as subj appears well-rounded candidate.
[13] The second officer, after discovering three visitor-visa ("CVV") refusals, wrote on the same day as follows:
- Subj has 3 previous [CVV] refusals ...
...
- dates are confusing - btn April & May 1998 to present not clear whether he was working 2 jobs.
...
- What happened to his employment at Quality Computers Ltd in 1999? It is not mentioned in his current application.
- Have come across yet another CVV refusal for subj ... Subj refused for giving conflicting information to previous applications in this application. Subj indicated he is an accountant at Yeah Enterprises ...
- There is a letter from current employer (Yeah Enterprises) clarifying that subj has worked for them for past two yrs (only part time with accounts ...) while he was still director of Computer World
- All this is quite confusing: ...
...
In his 1999 CVV application, he presented a letter from yet another employer, Quality Computers Ltd. (dated June 1999) stating he was beginning work July 1999 in Sales & Marketing
- PA is not being completely truthful about his employment
- not clear at all whether he has had any full-time work experience
- recommend interview
[14] There is no mention in the CAIPS notes that anyone from the CHC contacted the employers during the year which passed between the Applicant's comments and his interview.
[15] On March 12, 2002, the Applicant reported for his interview. Two days after the interview, the Officer entered into CAIPS what he asserted were his interview notes:
In April98 started own business with three other partners, called Computer World Tanzania Limited ... PA did this till May99 and afterwards the partnership was dissolved. Partners personal relations did not work out.
...
Asked PA if he worked as Sales Manager for Quality Computers in 1999, as stated in his visitor visa application of July 13, 1999. PA stated that he never worked with Quality Computers, never received salary. Letter on file was just an offer but he didn't go ahead with the employment. However, PA did say in his CVV application that he was Sales Manager. PA states that since his partnership was not fully terminated at Computer Word, he couldn't commit to the new job. He only did part-time work without pay at Quality Computers which lasted six to seven months.
Notes from CVV App. in 1999 also stated that Computer World was closed because of conflict with partners. When asked about inconsistencies PA stated that he must have been misunderstood because Computer Word did not close, and there is still one person running it.
Explained to PA my concern with the inconsistencies regarding work experience and ref letters [which did not state all the duties which he had claimed to have performed]. I explained to him that I am considering to refuse his application on credibility concerns. PA stated that he does realize now that he should have made more sure the ref letters produced should have stated exactly what his responsibilities were. He also stated that he should not have submitted Ref let from Quality Computers in 1999 for his CVV application when he did not in fact work for them. ... Told PA that I am still concerned about his credibility. I am inclined to refuse, but would have a second look at the file before proceeding with my decision.
[16] The same day this entry was made, the Officer refused the Applicant's application:
Although PA's credibility is a major concern, I also decided to assess his qualifications for the three occupations he applied for ...
... based on the interview PA does not have the necessary experience to qualify in the above three occupations. Since he was assessed 0 points for the three occupations, I have refused him.
[17] The Applicant submits that the Officer's notes reveal that he never advised the Applicant that he lacked experience in the occupations in which he was assessed. Also, he did not identify any occupation in which the Applicant had any experience and he never contacted the Applicant's employers in order to ascertain whether they would confirm the Applicant's experience.
ISSUES
[18] The Applicant raises the following issues:
a. the Officer lacked the authority to refuse the Applicant's application;
b. the Officer breached the rules of procedural fairness by rejecting the application on grounds that he concealed from the Applicant;
c. the Officer's findings that the Applicant has no experience in any occupation are perverse;
d. the Officer failed to comply with an officer's duty to ascertain an occupation in which he considered the Applicant to have experience;
e. the Officer refused the Applicant not because he did not meet selection criteria, but because the Officer believed that the Applicant had not been truthful when he applied for a visitor-visa three years earlier;
f. the Minister should accept responsibility for the actions of his agents.
ANALYSIS
What is the applicable standard of review to apply to the Decision of the Panel?
[19] This Court has held that the decision of a visa officer is discretionary in nature. Even if I were to find that I would have reached a different conclusion from the Officer, I cannot intervene unless the Officer acted in a patently unreasonable manner.
[20] In Al-Rifai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1703 (T.D.), Beaudry J. indicated as follows:
29. I adopt the principles in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (F.C.A.) (QL) and Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 3, 2002 SCC 1, of patently unreasonableness in discretionary decisions from the VO.
30. Turning to the substantive submissions of the applicant, it is important to note that the ability of the Court to intervene in the decisions of visa officers is very limited. The Court has so stated on several occasions. In Skoruk v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1687, 2001 FCT 1220, Nadon J. (as he then was) notes that the standard of review with respect to administrative decisions involving the exercise of statutory discretion is that laid out in Maple Lodge Farms Ltd., supra. If the discretion is exercised in good faith and in accordance with the principles of natural justice, a court will not interfere. That standard applies to the decisions of visa officers.
[21] In the Federal Court of Appeal's decision of Wang v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 351, Linden J.A. (ex officio) confirmed this standard of review:
6. Our jurisprudence holds the standard of review for this type of administrative decision is the test from Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 which teaches that a court should not interfere "[w]here the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose" (see: Skoruk v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1220; Chen v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 555, 2001 FCT 330; Al-Rifai v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1236; and Jang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1575, 2001 FCA 312).
[22] I find that the appropriate standard of review to apply to the Decision of the Officer in this case is that of patent unreasonableness.
The Merits
[23] Notwithstanding the range of issues raised in the Applicant's written materials, he filed no affidavit evidence in support of his allegations. Consequently, at the hearing of this matter held on February 4, 2004, Applicant's counsel confined herself to those issues that she alleged were apparent on the face of the record.
[24] In summary, Applicant's counsel argued that it is possible to discern the following from the face of the record:
1. The Officer's conclusion in the refusal letter to the Applicant of March 25, 2002, that "you do not meet these requirements because you have less than the required one year of full-time experience in your intended occupation" signifies an acknowledgement by the Officer that the Applicant did have at least some experience in the intended occupation;
2. There is no indication in the record that the Officer ever confronted the Applicant on the sufficiency of his work experience;
3. The Applicant was not notified before the interview that he would have to deal with particular problems of concern to the Officer, such as lack of adequate experience, credibility and the reference letters submitted by the Applicant;
4. The words "Based on the interview PA does not have the necessary experience to qualify in the above three occupations" mean that, in assessing experience, the Officer left the reference letters out of account and the Applicant should have been advised that the letters would be left out of account and given the opportunity to address the experience issue;
5. If the Officer had issues with the reference letters and discrepancies between the letters and the information provided by the Applicant at the interview, the Officer should have phoned the employers. The fact that the Officer did not do this suggests that he did not take the reference letters into account when assessing experience and relied completely on the interview;
6. The CAIPS notes reveal that the Applicant had the relevant work experience. The Officer makes no finding that the Applicant's experience is less than one year and the CAIPS notes reveal that he had relevant experience in excess of one year;
7. There is no finding in the CAIPS notes that the Officer does not believe the Applicant had sufficient relevant work experience;
8. The real basis for the Officer's decision was discrepancies in a prior application made 3 years previously over his work experience at Quality Computers. These discrepancies were not relevant to the issues before the Officer and, in effect, he made an adverse credibility finding in 2002 because of something that had occurred in 1999. There was no finding that the Applicant was untruthful in 2002;
9. The 5 units awarded to the Applicant for Personal Suitability support the conclusion that the Officer must have felt the Applicant has experience in the assessed categories.
[25] In conclusion, the Applicant says that the face of the record shows that no adequate assessment was done. The record reveals that the Officer was unable to reach any meaningful conclusion about the Applicant's experience. If the Officer believed the Applicant was not telling the truth he should have raised ss. 9(3) of the Immigration Act, R.S.C. 1985, c. I-2 and put the Applicant on notice of this fact instead of proceeding with an assessment on the basis of information he did not believe. Having undertaken the assessment, the Officer had an obligation to discover precisely what the Applicant's real experience was and assess him on the basis of that experience.
[26] Of course, it is possible to take serious issue with the various conclusions that the Applicant invites the Court to draw from the face of the record. For example, there is nothing in the words "you have less than the required one year of full-experience in your intended occupation" that necessitates a finding by this Court that the Officer acknowledged the Applicant had at least some relevant experience. Likewise, there is nothing in the words "Based on the interview ..." that leads to a conclusion that the reference letters were left out of account.
[27] Having reviewed the record, I have to conclude that the Applicant has not provided the Court with the necessary evidentiary base to support the findings and conclusions that he urges. It would have been simple enough for the Applicant to provide an affidavit to the Court that addresses the credibility and other concerns raised by the Officer. But the Applicant chose not to provide such an affidavit and merely urges the Court to rely upon the interpretive ingenuity of his legal counsel to see matters his way.
[28] I have to agree with the Respondent that there is no clear finding in the record that the Applicant had any experience relevant to the assessment. Credibility concerns were raised with the Applicant at the interview and he had every opportunity to resolve them. He did not do so. There is no indication that the Officer ignored the reference letters, and those letters do not support the Applicant's position that he had the necessary experience.
[29] The burden was on the Applicant to satisfy the Officer that he possessed the necessary qualifications for a visa. He failed to do this and now claims that he should have been forewarned of credibility concerns and the Officer should have contacted employers to clear up the problems that his contradictory information caused. My reading of the relevant jurisprudence imposes no such obligations on the Officer.
[30] The face of the record shows that the Officer assessed the Applicant in the correct categories and concluded that, in the experience category, the Applicant had not shown any relevant experience that the Officer could rely upon.
[31] As regards the Applicant's argument that the Officer should not have attempted an assessment if he did not have reliable information, this is just another way of saying that it was the Officer's obligation to inquire and seek out the information he needed to complete the assessment. The Applicant was given every opportunity to show that he qualified. He could not establish that he warranted any points for experience. The basis of the Decision, as I read it, was not lack of credibility; it was a failure by the Applicant to provide the information required to earn any units in the assessed category.
[32] There was no reviewable error and this Court declines to intervene.
[33] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.
"James Russell"
JFC
_____________________________
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2121-02
STYLE OF CAUSE: IMRAN AHMED
and
The Minister of Citizenship
and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 4, 2004 .
REASONS FOR ORDER: Russell, J.
DATED: February 19, 2004
APPEARANCES
Ms. Mary Lam For Applicant
Ms.Mary Matthews For Respondent
SOLICITORS OF RECORDS:
Ms. Mary Lam For Applicant
Toronto, Ontario
Morris Rosenberg For Respondent
Deputy Attorney General of Canada