Ottawa, Ontario, February 15, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision of a visa officer dated January 13, 2006, who held that the applicant failed to meet the criteria under section 75 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations) to be granted a permanent resident visa under the skilled worker class.
BACKGROUND
[2] Nabeel Athar (the applicant) is a citizen of Pakistan who has recently been living and working in the United States, with his wife and children.
[3] In January 2002, he applied at the Canadian Visa Office in Buffalo for a permanent resident visa as a skilled worker under NOC 1112 (Financial and Investment Analysts) and NOC 1122 (Management Consultant). In 2004, his file was transferred to the Detroit Visa Office, where he was interviewed on May 3, 2004 by Moira Escott (the visa officer).
[4] In a letter dated January 13, 2006, his application was denied on the basis that he did not meet the requirements for immigration to Canada under the skilled worker class. Skilled worker applicants are assessed under the criteria set out at subsection 76(1) of the Regulations. The visa officer awarded the applicant 10 out of 10 points on the age criteria, 25 out of 25 points for education, 16 out of 24 points for official language proficiency, and 9 out of 10 points for adaptability. The applicant was awarded no points for arranged employment or work experience. With a total of 60 points, the applicant fell short of the required 67 points needed to satisfy the visa officer that he could become economically established in Canada.
ISSUES FOR CONSIDERATION
[5] This application raises the following issues:
1) Did the visa officer err by not considering all of the evidence before her?
2) Did the visa officer err by not stating her concerns to the applicant and providing him with an opportunity to respond, as per the rules of procedural fairness?
3) Did the conduct of the visa officer disclose a reasonable apprehension of bias?
STANDARD OF REVIEW
[6] It is well established in law that the decision of a visa officer whether or not to grant a permanent resident visa is a discretionary decision based essentially on a factual assessment, and should thus be reviewed on a standard of patent unreasonableness. As the Federal Court of Appeal held in Jang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1575, 2001 FCA 312, at paragraph 12:
An application to be admitted to Canada as an immigrant gives rise to a discretionary decision on the part of a visa officer, which is required to be made on the basis of specific statutory criteria. Where that statutory discretion has been exercised in good faith and in accordance with the principles of natural justice and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, courts should not interfere (Maple Lodge Farms Limited v. Government of Canada et al [1982] 2 S.C.R. 2 at pages 7-8; To v. Canada, [1996] F.C.J. No. 696 (F.C.A.).
[7] However, where concerns are raised over an alleged breach of procedural fairness, the Supreme Court of Canada has held that the proper standard is that of correctness (Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221 at paragraph 65). Therefore, if a breach of procedural fairness is found, the decision must be set aside (Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650 at 665).
ANALYSIS
1) Did the visa officer err by not considering all of the evidence before her?
[8] The applicant first submits that the visa officer erred by failing to examine the totality of the applicant’s work experience and confining her analysis to the applicant’s work experience since coming to the United States.
[9] The respondent, for his part, asserts that there is a presumption that the visa officer has considered all the evidence before her when rendering her decision and that the onus is on the applicant to provide the necessary information to support his claim.
[10] The respondent is correct in stating that there is a presumption, recognized by the Supreme Court of Canada in Woolaston v. Canada (Minister of Employment and Immigration), [1973] S.C.R. 102, that the decision-maker considered all of the evidence in the record before rendering its decision. The Federal Court of Appeal elaborated on this point in Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946, (1992) 147 N.R. 317, where Justice Heald noted:
The fact that some of the documentary evidence was not mentioned in the Board's reasons is not fatal to its decision. The passages from the documentary evidence that are relied on by the appellant are part of the total evidence which the Board is entitled to weigh as to reliability and cogency.
[11] That being said, this is a presumption that is rebuttable, as demonstrated by the decisions of the Court in cases such as Sheremet v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1247, 2003 FC 987, and Huang v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 184, 2003 FCT 126, where it was found that the visa officer erred by failing to consider the totality of the applicant’s work experience.
[12] In her affidavit, the visa officer admits to putting greater emphasis on the recent employment of the applicant as a financial analyst while in the United States. Her reasoning was that it would be easier for the applicant to describe his most recent employment as a financial analyst and provide evidence of paid employment while in the United States, that it would be with regards to his work in that area while in Pakistan. As the visa officer was not satisfied, based on the applicant’s responses during the interview, that he was an experienced and knowledgeable financial analyst, she asked that the applicant provide her with proof of paid employment as a financial analyst. The Computer Assisted Immigration Processing System (CAIPS) notes also reflect that she did consider the letters provided by the applicant from former employers in Pakistan, but was not satisfied that they were credible evidence that the applicant possessed the experience claimed as a financial analyst.
[13] In light of the CAIPS notes and the explanation provided by the visa officer in her affidavit, I am satisfied that the presumption that the visa officer considered all the evidence submitted has not been rebutted in the present case.
2) Did the visa officer err by not stating her concerns to the applicant and providing him with an opportunity to respond, as per the rules of procedural fairness?
[14] The applicant also submits that he was denied procedural fairness as he was not provided with an opportunity to address the visa officer’s concerns regarding his work experience. He notes that while the onus was on him to provide sufficient information to the visa officer, if she had specific concerns that could impact negatively on the application, than procedural fairness required that the applicant be given an opportunity to respond to these concerns. Furthermore, the applicant suggests that the visa officer failed to actively interview him on his work experience so that he might alleviate her concerns by providing additional information.
[15] On the issue of procedural fairness, the respondent submits that the onus is on the applicant to provide the necessary information to support his claim and that a visa officer has no obligation to notify an applicant about concerns that the applicant might not meet the requirements and allow the applicant the opportunity to respond to those concerns. Nevertheless, the respondent suggests that the visa officer asked for more information on a diploma she believed to be fraudulent, and also asked the applicant to provide proof of paid employment as a financial analyst, which was not provided.
[16] In Madan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1198, (1999) 172 F.T.R. 262, Mr. Justice John M. Evans stated at paragraph 6:
It is well established that it is the responsibility of the visa applicant to put before the officer all the material necessary for a favourable decision to be made. Hence, visa officers are under no legal duty to ask for clarification or for additional information before rejecting a visa application on the ground that the material submitted was insufficient to satisfy the officer that the applicant had met the relevant selection criteria.
[17] That being said, there may still be a duty on the part of a visa officer, in certain situations, to provide an applicant with the opportunity to respond to his or her concerns, in accordance with the rules of procedural fairness. As noted by Mr. Justice Richard Mosley in Hassani v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1597, 2006 FC 1283:
¶ 21 The case law is not clear regarding when a visa officer's concerns must be put to the applicant where those concerns are based on the information submitted by the applicant to the visa officer. For example, in Hussain v. Canada (Minister of Citizenship and Immigration), 2002 FCT 468, [2002] F.C.J. No. 596 at paras. 35-37 (QL) [Hussain], the Court addressed whether the visa officer had breached his duty of fairness by failing to raise his alleged concerns with the applicant about the applicant's personal suitability and/or his English language fluency, and by failing to provide the applicant with an opportunity to address any such concerns. The Court found that the officer was not required to put before the applicant any tentative conclusions he might be drawing from the material. The Court noted that the visa officer was merely assessing the information provided to him by the applicant as he must do in order to reach a decision. The Court highlighted that the burden is on the applicant to prove that he has a right to come to Canada. This approach was also taken by the Court in Bellido, above, at para. 35.
¶ 22 In Liao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1926 (QL) [Liao], however, the Court took a different approach, noting:
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¶ 15 Visa officers have the duty to give an immigrant the opportunity to answer the specific case against him. This duty of fairness may require visa officers to inform an applicant of their concerns or negative impressions regarding the case and give the applicant the opportunity to disabuse them. |
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¶ 17 However, this duty to inform the applicant will be fulfilled if the visa officer adopts an appropriate line of questioning or makes reasonable inquiries which give the applicant the opportunity to respond to the visa officer's concerns ... |
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In reaching the above conclusion, the Court in Liao did not lose site of the fact that the ultimate burden of proof rests on the applicant. The Court looked to the questions asked by the officer and the information provided to her, before finding that her conclusion was reasonably open to her.
¶ 23 In Rukmangathan v. Canada (Minister of Citizenship and Immigration), 2004 FC 284, [2004] F.C.J. No. 317 (QL) [Rukmangathan], the Court offered the following guidance in determining what is required of a visa officer when different types of concerns arise:
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¶ 22 ... the duty of fairness may require immigration officials to inform applicants of their concerns with applications so that an applicant may have a chance to "disabuse" an officer of such concerns, even where such concerns arise from evidence tendered by the applicant. Other decisions of this court support this interpretation of Muliadi, supra [Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.)]. See, for example, Fong v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.), John v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 350 (T.D.) (QL) and Cornea v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm. L.R. (3d) 38 (F.C.T.D.), where it had been held that a visa officer should apprise an applicant at an interview of her negative impressions of evidence tendered by the applicant. |
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¶ 23 However, this principle of procedural fairness does not stretch to the point of requiring that a visa officer has an obligation to provide an applicant with a "running score" of the weaknesses in their application: Asghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091 (T.D.) (QL) at para. 21 and Liao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1926. And there is no obligation on the part of a visa officer to apprise an applicant of her concerns that arise directly from the requirements of the former Act or Regulations: Yu v. Canada (Minister of Employment and Immigration) (1990), 36 F.T.R. 296, Ali v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1 and Bakhtiania v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1023 (T.D.) (QL). |
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[18] From his review of the recent jurisprudence, Justice Mosley concluded that:
¶ 24 Having reviewed the factual context of the cases cited above, it is clear that where a concern arises directly from the requirements of the legislation or related regulations, a visa officer will not be under a duty to provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one that arises in this context, such a duty may arise. This is often the case where the credibility, accuracy or genuine nature of information submitted by the applicant in support of their application is the basis of the visa officer's concern, as was the case in Rukmangathan, and in John and Cornea cited by the Court in Rukmangathan, above. [emphasis added]
[19] As there is no transcript of the interview, it is impossible to know exactly what concerns may have been expressed by the visa officer and how actively the visa officer questioned the applicant. However, from the CAIPS notes, it is reasonably clear that the visa officer did question the applicant with regards to his employment, asking about the number of employees in his company, the work he has done since arriving in the United States and the name of some of his clients. Under the circumstances, I am satisfied that the visa officer’s approach in conducting the interview was adequate. As noted by Madam Justice Carolyn Layden-Stevenson in Verma v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 218, 2003 FCT 136 at paragraph 12: “The obligation of the visa officer is to conduct and interview, not an inquisition”.
[20] The visa officer also rejected the documentary evidence submitted by the applicant, namely the various letters from past employers, as not providing the necessary evidence of paid employment. Based on her comments in the CAIPS notes that these references were provided by “co-ethnics”, which she later explained in her affidavit as a way of expressing her concern that these letters might have been provided by friends and/or acquaintances and thus might not be bona fide, it would not be unreasonable to conclude that she rejected these letters because she thought they contained false evidence of work experience. Such a conclusion would clearly fall within the category of “credibility, accuracy or genuine nature of information”, identified by Justice Mosley in Hassani, above, as giving rise to a duty on the part of the visa officer to inform the applicant of her concern and provide him with an opportunity to respond.
[21] In his affidavit, the applicant maintains that he was never informed of the visa officer’s doubts with regards to the genuineness of the reference letters submitted in support of his claim of work experience as a financial analyst. The visa officer for her part maintains that she did inform the applicant that such letters of reference were not considered reliable or conclusive evidence of paid employment as a financial analyst, which is why she requested that the applicant provide evidence of payment of compensation.
[22] The CAIPS notes following the interview do mention the visa officer’s conclusion that the applicant had failed to provide evidence of paid employment and that he was given a list of documents required in order to proceed with his application. Subsequently, the applicant submitted additional letters from various companies in the United States, which also failed to convince the visa officer that he had been employed as a financial analyst. It is with regards to these documents that she recorded her comment that these were “all letters f[ro]m co-ethnics” which, as she explained in her affidavit, raised doubts as to their credibility. What is also interesting is that the visa officer recognized in the CAIPS notes that she had a duty to inform the applicant of concerns regarding the veracity of documents, as she wrote “procedural fairness requires subj[ect] to be advised that it is my opinion he has provided false doc[ument]s in support of app[lication] and be given opportunity to respond”. In my view, the applicant was informed during the interview of the visa officer’s concerns regarding the veracity of the documents initially provided in support of his work experience. While it is true that the visa officer did not follow-up with the applicant after receiving the additional documents, I do not think that the visa officer had an obligation to keep following-up with the applicant as long as she was not satisfied that he had provided the documents she requested.
[23] Regarding the applicant’s education credentials, the visa officer also concluded that he had submitted fraudulent education documents, something which the applicant strongly denies. After recording this concern in her CAIPS notes, the visa officer sent an official letter to the applicant informing him of her belief that one of his diplomas was fraudulent and giving him an opportunity to respond before a final decision was rendered. Meanwhile, the visa officer proceeded with her own investigation of the document in question, including a request for verification sent to the Islamabad office. The applicant provided further information in support of the legitimacy of the diploma in question and, despite her conclusion in the CAIPS notes that he did not possess the education experience claimed, she still awarded full points for education, a decision which she explains in her affidavit was due to the absence of any evidence that the document was in fact fraudulent, as the Islamabad office had a back log and could not process her request for verification in a timely manner.
[24] The visa officer expressed serious concerns regarding the applicant’s alleged work experience, as she was not convinced that the applicant was actually doing the job of a financial analyst that he claimed to be doing in the United States. Since she had serious concerns regarding the applicant’s credibility, she asked that he provide proof of paid employment, specifically evidence of payment of compensation, for his most recent employment in the United States, which he failed to do. The applicant’s failure to provide the requested proof of compensation simply confirmed the visa officer’s initial conclusions regarding his lack of relevant work experience as a financial analyst.
[25] In this situation, we can ask ourselves: What else should the visa officer have done? Should she have kept on asking the applicant over and over for proof of paid employment until she received the documents she had requested during the interview? In my view, such an approach would have gone far beyond the requirements of procedural fairness identified in Rukmangathan and Hassani, above.
[26] It is my belief that the applicant was informed of the visa officer’s serious concerns regarding the credibility of the evidence submitted in support of his work experience. The applicant however failed to address the concerns expressed by the visa officer and to satisfy her that he had the necessary experience as a financial analyst. There was no obligation on the part of the visa officer to ask again and again for proof of paid employment, as such an approach would lead to a reversal of the onus of proof in applications for a permanent resident visa.
[27] Therefore, I conclude that the visa officer did not breach the duty of fairness owed to the applicant.
3) Did the conduct of the visa officer disclose a reasonable apprehension of bias?
[28] Finally, the applicant submits that the visa officer’s conduct during the interview and the CAIPS notes demonstrate a reasonable apprehension of bias. In her affidavit, the visa officer denies that she was discourteous or biased, and emphasizes that she conducted herself professionally and without any bias or negativity towards the applicant.
[29] In my view, the suggestion that the conduct of the visa officer discloses a reasonable apprehension of bias should be rejected. While the visa officer’s choice of words when referring to “letters from co-ethnics” may be questionable, it is not sufficient to disclose a reasonable apprehension of bias. In fact, the visa officer challenged most of the documents coming not only from Pakistan, but also from the United States, on the basis that they were not credible, and also rejected the applicant’s testimony as being vague.
[30] Furthermore, reasonable apprehension of bias is a serious allegation and the test that must be met, as set out in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394-395, is a difficult one, as the applicant must demonstrate that an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that the visa officer’s action give rise to a reasonable apprehension of bias. Here, while the applicant makes a number of allegations regarding the visa officer’s conduct during the interview, these allegations are contradicted by the visa officer, whom the applicant chose not to cross-examine on her affidavit.
[31] The applicant having failed to demonstrate that a reasonable apprehension of bias exists, this argument must be dismissed.
[32] Therefore, for all of the above reasons, the application for judicial review is dismissed.
[33] No questions were submitted for certification.
JUDGMENT
1. The application for judicial review is dismissed;
2. No questions for certification.
“Pierre Blais”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1301-06
STYLE OF CAUSE: NABEEL ATHAR
v.
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 1, 2007
REASONS FOR JUDGMENT AND JUDGMENT: BLAIS J.
APPEARANCES:
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MAX CHAUDHARY
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DAVID JOSEPH
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SOLICITORS OF RECORD:
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MAX CHAUDHARY NORTH YORK, ONTARIO
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JOHN H. SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO
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