Date: 20020207
Docket: A-223-00
Neutral citation: 2002 FCA 55
MALONE J.A.
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
PRAKASH PATEL
Respondent
Heard at Toronto, Ontario, Wednesday, February 6, 2002.
Judgment delivered from the Bench at Toronto, Ontario,
on Wednesday, February 6, 2002.
REASONS FOR JUDGMENT OF THE COURT: EVANS J.A.
Date: 20020207
Docket: A-223-00
Neutral citation: 2002 FCA 55
CORAM: RICHARD C.J.
EVANS J.A.
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
PRAKASH PATEL
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario,
on Wednesday, February 6, 2002)
[1] This is an appeal by the Minister of Citizenship and Immigration against a decision of a Judge of the Trial Division dated June 2, 2000, in which the Judge allowed an application for judicial review and set aside a refusal by a visa officer to issue a permanent residence visa to Prakash Patel. Although he had qualified in India as a medical doctor, Dr. Patel applied for a visa in the independent category as a medical laboratory technologist. After interviewing Dr. Patel, the visa officer awarded him 66 units of assessment, four short of the 70 normally needed for a visa.
[2] The Applications Judge found that the visa officer had erred in awarding Dr. Patel only 13 units for the education factor, instead of the 15 to which he was entitled under Schedule I of the Immigration Regulations, 1978, SOR/78-172. Dr. Patel's units of assessment were thereby increased to 68. Having allowed the application for judicial review, the Judge certified the following question pursuant to subsection 83(1) of the Immigration Act, R.S.C. 1985, c. I-2:
Should a visa officer's decision to refuse an application for entry into Canada be quashed where a visa officer made an error in the assessment, but where the error would still not provide the Applicant with sufficient points for a successful application?
[3] We should note that the Judge's reasons do not address the possibility that she could exercise her discretion to refuse to grant the relief sought by Dr. Patel, on the ground that the error committed by the visa officer was not material to the decision to refuse to issue the visa.
[4] In his submissions before us, counsel for the Minister conceded that the officer had erred in the calculation of the units of assessment for education. However, relying on a line of cases in which visa officers' decisions have not been quashed because the errors committed were not material to the outcome, counsel argued that the officer's refusal to issue a visa in this case should not have been quashed because Dr. Patel would still have been two units short of the number normally required for a positive decision: see, for example, Barua v. Canada (Minister of Citizenship and Immigration), (1998), 157 F.T.R. 65; Shen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 2031 (F.C.T.D.); Syed v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 451 (F.C.T.D.).
[5] A similar discretion has been exercised in judicial review proceedings when a person's right to procedural fairness has been breached, but the reviewing court is satisfied that the breach could not have affected the decision: see, for example, Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R 202, at page 228; Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.).
[6] We are of the view that the error made by the visa officer was not material to the outcome of the visa application because, even after the correction of the mistake on the educational factor, Dr. Patel was still two points short of the number normally required for a successful visa application. We also note that, in her refusal letter, the visa officer stated that she had decided not to exercise her discretion to issue a visa under subsection 11(3) of the Regulations, because she was of the view that the 66 units of assessment that she had awarded to Dr. Patel accurately reflected his ability to become successfully established in Canada.
[7] In our opinion, the Applications Judge erred in not considering whether this was a suitable case for declining to quash the visa officer's decision. Rather than sending the matter back to the Trial Division, we are prepared to exercise the discretion that the Applications Judge ought to have exercised: the Trial Judge's decision will be reversed and the visa officer's refusal restored.
[8] Two other issues were raised before us. First, counsel for the Minister alleged that the Applications Judge had erred in reducing the evidential weight that she gave to the visa officer's CAIPS notes of her interview with Dr. Patel because, in fact, a copy of the officer's case summary had been sworn and made an affidavit by order of a Prothonotary. However, even if the Judge erred as alleged, nothing turns on it.
[9] Second, counsel for the respondent submitted that the visa officer's assessment of Dr. Patel's proficiency in the English language was made in breach of the duty of procedural fairness. This point was put to the Applications Judge but was not dealt with in her reasons. Counsel advanced two arguments on the issue of procedural fairness.
[10] He argued that the record does not contain an explanation of the basis of the officer's assessment of Dr. Patel's English proficiency that is adequate to discharge the duty to give reasons imposed by Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. We disagree. As part of the duty of procedural fairness, the content of the duty to give reasons depends on the particular decision-making context to which the duty is being applied. The content of the duty of fairness owed by a visa officer when determining a visa application by an applicant in the independent category is located towards the lower end of the range: Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.).
[11] In our opinion, the comment of the visa officer in the record about Dr. Patel's difficulties in oral communication, and the English writing sample that he had provided, make it sufficiently clear why she awarded him 6 out of a possible 9 units of assessment for language.
[12] Counsel also submitted that the officer denied Dr. Patel the right to procedural fairness by assessing his English reading ability at a level lower than that at which he had assessed it himself, without giving him an opportunity to demonstrate his true English reading ability. It is a reasonable inference from the record that the officer awarded Dr. Patel 2 points each for his ability to speak, write and read English. Thus, even if he were awarded the maximum of 3 points for his reading ability, he would still have only a total of 69 units of assessment. In other words, even if the officer had committed a breach of procedural fairness in making her assessment of Dr. Patel's ability to read English, it was immaterial.
[13] For these reasons, the appeal will be allowed without costs, the Applications Judge's decision set aside and the visa officer's decision to refuse a visa to Dr. Patel restored. We would answer the certified question as follows:
When on an application for judicial review of a visa officer's refusal to issue a visa the Court concludes that the officer committed a reviewable error and awarded the applicant too few units of assessment, the Court may in its discretion refuse to set the decision aside if, in its view, the error could have made no difference to the officer's decision because, even after the error was corrected, the applicant still had insufficient points to be issued a visa..
"John M. Evans"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: A-223-00
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
PRAKASH PATEL
Respondent
DATE OF HEARING: WEDNESDAY, FEBRUARY 6, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: EVANS J.A.
DATED: WEDNESDAY, FEBRUARY 6, 2002
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON FEBRUARY 6, 2002.
APPEARANCES BY: Mr. Marcel Larouche
For the Appellant
Mr. Max Chaudhary
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
For the Appellant
Chaudhary Law Office
18 Wynford Drive, Suite 707
North York, Ontario
M3C 3S2
For the Respondent
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20020207
Docket: A-223-00
BETWEEN:
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Appellant
and
PRAKASH PATEL
Respondent
REASONS FOR JUDGMENT OF THE COURT