Date: 20030916
Docket: IMM-5596-01
Neutral citation: 2003 FC 1073
Toronto, Ontario, September 16th, 2003
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
BHAVAN MEHTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Mehta applied for permanent residence in Canada as an independent in the intended occupation Financial Manager (NOC 0111.0). On November 8, 2001, a visa officer refused his application and he applies for judicial review of that decision.
[2] Mr. Mehta is a citizen of India. On paper screening, he was awarded 57 units of assessment with respect to the intended occupation. He was also assessed as an Accounting Clerk (NOC 1431.0) and was awarded 52 units of assessment. Because he did not receive 60 units of assessment, he was not granted an interview. This application deals only with the Financial Manager assessment.
[3] Mr. Mehta was awarded zero units for the experience factor and was therefore barred by subsection 11(1) of the former Immigration Regulations, 1978, SOR/78-172 from obtaining a visa. Although he alleges five grounds of error in his written submissions, counsel stated, at the hearing, that the crux of the matter is whether there exists a breach of procedural fairness.
[4] A review of the record leaves me with no doubt that the visa officer assessed the applicant's application in good faith and in a conscientious manner. However, the visa officer made a significant error.
[5] Before refusing the application, the officer telephoned Munshav Enterprises Ltd. (the applicant's place of employment) and asked to speak with the applicant. Neither Mr. Mehta nor the owner of the company were present. The visa officer spoke to the peon (an odd job person) who informed her that the company had three employees and that the applicant was the "accountant". The visa officer indicated that she would call again to speak with the applicant, but did not. In her refusal letter, the visa officer stated as follows:
A review of your application including the information provided by you over the telephone to an employee of the Canadian High Commission and that obtained by me upon making a telephone enquiry to your office establish that you do not possess the requisite experience in your intended occupation of Financial Manager (NOC 0111.0) As a result, you have not been awarded any units of assessment for the experience factor. (emphasis is mine)
[6] Mr. Mehta alleges that in relying on the information obtained from the peon without providing him with an opportunity to respond, the visa officer breached the duty of procedural fairness. I agree.
[7] The respondent refers to the decision of Mister Justice MacKay in Li v. Canada (Minister of Citizenship and Immigration) 2002 FCT 174, F.C.J. No. 222 and urges me to conclude that there is no duty on a visa officer to inform an applicant of concerns with respect to an application and to provide an opportunity to respond before concluding an assessment. I do not take issue with that proposition. Indeed, I regard it as settled law. However, there exists an exception. In Li, supra, Justice Mackay includes a reference to the exception.
[8] Where a visa officer relies upon extrinsic evidence, an error will be found if an applicant is not provided with an opportunity to respond to such evidence: Shah v. Canada (Minister of Employment and Immigration) (1994), 170 N.R. 238 (F.C.A.); Sorkhabi v. Canada (Minister of Employment and Immigration) (1994) 89 F.T.R. 224 (T.D.); John v. Canada (Minister of Employment and Immigration) (1997) 36 Imm. L.R. (2d) 192; Chou v. Canada (Minister of Citizenship and Immigration) (2001) 211 F.T.R. 90 (T.D.).
[9] It is clear from the refusal letter that the visa officer relied upon her conversation with the peon as one of the reasons for her decision. The content of that conversation was not put to the applicant and the failure to do so, in accordance with the above noted authorities, constitutes a breach of procedural fairness. It may be that the officer would have come to the same conclusion in any event, but it is not evident or certain that such would be the case. Therefore, it cannot be said that this is one of those infrequent instances in which the breach was immaterial. Thus, the application for judicial review will be allowed. Counsel posed no question for certification. This matter raises no serious issue of general importance.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is remitted back for redetermination before a different visa officer.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5596-01
STYLE OF CAUSE: BHAVAN MEHTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: SEPTEMBER 16, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: SEPTEMBER 16, 2003
APPEARANCES BY: Mr. Jaswant Singh Mangat
FOR APPLICANT
Mr. Jeremiah Eastman
FOR RESPONDENT
SOLICITORS OF RECORD: Mr. Jaswant Singh Mangat
Barrister & Solicitor
Mississauga, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Date: 20030916
Docket: IMM-5596-01
BETWEEN:
BHAVAN MEHTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER