Date: 20030207
Docket: IMM-460-01
Neutral citation: 2003 FCT 132
Ottawa, Ontario, this 7th day of February, 2003
PRESENT: THE HONOURABLE MR. JUSTICE MACKAY
BETWEEN:
FAHEEM AHMAD KIYANI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J:
[1] This is a judicial review, under s.18.1 of the Federal Court Act, R.S.C. 1985, c.F-7, of a decision dated November 14, 2000, by a visa officer stationed at the Canadian High Commission in London, rejecting the application of Faheem Ahmad Kiyani for permanent residency in Canada. The applicant seeks an Order quashing the decision of the visa officer and remitting the matter for reconsideration by a different visa officer.
[2] The applicant is a 29-year old man who is a citizen of Pakistan. He holds BSc and Master's of Science (Honours) degrees from NWFP Agricultural University in Peshawar, Pakistan. He first applied for permanent residence in 1999 in the Assisted Relative category, as an agricultural representative / consultant specialist at the Canadian High Commission in London. His first application was rejected, by a letter dated January 18, 2000. He then wrote, on January 24, 2000, requesting reconsideration of his application but he was advised by letter of February 23, 2000 that his file had been closed, and if he wished to submit new or different information, he should submit a new application for permanent residence.
[3] The applicant reapplied on February 25, 2000, once again under the Assisted Relative category, with his intended occupation of agricultural representative. An interview for the second application took place, according to the visa officer's CAIPS notes, on October 13, 2000 .
[4] By her letter of rejection, the visa officer set out her conclusion that the applicant did not have
a minimum of one year's full-time experience as an agricultural representative. At the time you were working you were pursuing a full-time master's degree. I therefore consider your work between April 1997 and June 1998 to be part-time experience. Therefore you have not performed some of the main duties of your intended occupation as set out in NOC for the minimum period. I have awarded you 0 units for the experience factor. ...
I have also concluded that you have not performed a substantial number of the main duties in your intended occupation, according to NOC, for the minimum one year period. I have awarded you 0 units of assessment for the occupational factor. ...
The letter also advised that an immigrant visa is not awarded unless the applicant is awarded at least one unit of assessment for each of the experience factor and the occupational factor.
[5] According to the CAIPS notes, apparently made by the visa officer during the applicant's interview, or soon thereafter, the applicant stated that for the year prior to his application (April 1997 - June 1998), he was employed by NWFP Agricultural University as an agricultural representative working on a project called the "Dutch Project" (so called because it was funded through a Dutch organization). The CAIPS notes indicate he was paid for his work for some 5 hours per day, then would work on his own field work 3 -4 hours per day and 2 - 3 hours in the lab for his own research.
[6] In the applicant's affidavit, he testifies that in fact he worked full-time for his University as an agricultural representative from April 1997 - June 1998, while simultaneously and independently working part-time finishing his Masters degree. The Applicant also states that he explained this in some detail to the visa officer during the interview, and she did not question him whether he was working full-time or part-time.
[7] The CAIPS notes indicate that during the interview, in addition to the question of the hours the applicant worked, the visa officer asked about the applicant's responsibilities and duties. The CAIPS notes included comments on various aspects of advice the applicant provided to farmers in his work on the project and it included comment that
"most farmers small holders 200 acres...most were poor farmers with no farm equipment. Used oxen for ploughing largely. Relevant in Cdn context is factor."
[8] The applicant argues that the visa officer denied him natural justice by not affording him an opportunity to correct the visa officer's misunderstanding that his work was full-time, rather than part-time as she had concluded. The applicant further argues that he was also denied natural justice in that the visa officer did not allow him to address her concerns that his experience was not relevant to the Canadian agricultural context, in relation to the size of farms or otherwise. It is urged that neither the Immigration Regulations nor the NOC specify the context in which the experience of the applicant is to be assessed. This issue, however, was not directly raised in the rejection letter of November 14, 2000 and it is not clear whether the lack of Canadian context suggested by the officer's CAIPS notes was a major consideration of the visa officer in assessing the experience or the occupational factor.
[9] In any case, the applicant urges that the visa officer erred in finding that the applicant had not performed a substantial number of the main duties outlined for an agricultural representative under the NOC. He submits that a letter from his employer submitted to the visa officer, and his statements during the interview, demonstrate that he had performed all of the main duties described for an agricultural representative in the NOC.
[10] In response, the Crown refers to the CAIPS notes of the visa officer wherein she states she "counselled about his experience and my concerns in this regard" in support of their position refuting that the applicant was denied natural justice in the process of his application. The respondent further argues that as the visa officer's notes recording her understanding of the applicant's job hours found him to be part-time, the applicant's affidavit testimony should not be taken "at face value." In addition, it is urged that it was not unreasonable for the visa officer to conclude that the applicant was a part-time employee of the University if he was also working full-time on his masters. The respondent concludes that this, in addition to the fact that a letter from his employer from a prior application for permanent residence referred to the applicant's job title in the 1997-98 period as "Research Officer," provides a basis for the visa officer's decision that the applicant did not have sufficient experience in his intended occupation, as an agricultural representative, to qualify for immigration.
[11] Generally, the standard applicable to the review of a visa officer's discretionary decision is whether the decision, in light of the evidence before the officer, is patently unreasonable. (See: To v. Canada (M.E.I.), [1996] F.C.J. No.696 (F.C.A.), applying Maple Lodge Farms, Ltd. [1982] 2 S.C.R. 2 concerning the standard of review appropriate to visa officer's discretionary decisions. See also: Lim v. Canada (M.E.I.) (1999), 12 Imm.L.R. (2d) 161 (F.C.A.), Mehrabani v. Canada (M.C.I.) [2000] F.C.J. No. 345 (T.D.) and Sharif v. Canada (M.C.I.) [1996] F.C.J. No. 1705.
[12] The applicant submits that the respondent did not understand what he had told her his experience was, and did not give him the opportunity to correct the officer's misunderstanding. The respondent submits that the visa officer did discuss the insufficiencies in experience with the applicant, as it states in the CAIPS notes "Counselled about his experience and my concerns in this regard."
[13] In contrast is the sworn affidavit of the applicant in which he states that he explained to the visa officer that he had worked full-time in 1997 to 1998 for longer than the required one year minimum in his chosen occupation of agricultural representative. He also states that he was not given an indication of the officer's misunderstanding about the ratio of hours he worked on his thesis or in his employment and at the end of the interview the officer indicated all was in order.
[14] The respondent relies on the certified Tribunal Record, which includes the visa officer's CAIPS notes concerning both of the applicant's immigration applications, including the correspondence from and to the applicant, and materials submitted in support of his most recent application. However, the respondent did not submit any sworn affidavits in support of its position to confirm the truth of the information included in the record, particularly the CAIPS notes.
[15] Recent case law is clear that in the absence of an affidavit from the visa officer attesting to the truth of their contents, CAIPS notes have no formal status as evidence. In Chou v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 314, where the respondent had neglected to submit any affidavit affirming the truth of the contents of the CAIPS notes, and Madam Justice Reed held, at p.13, that:
"the CAIPs notes should be admitted as part of the record, that is, as the reasons for the decision under review. However, the underlying facts on which they rely must be independently proven. In the absence of a visa officer's affidavit attesting to the truth of what he or she recorded as having been said at the interview, the notes have no status as evidence of such."
[16] I agree with the views expressed by Mr. Justice Pelletier in Hossein Tajgardoon v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 591 (T.D.) at para. [20]:
...the respondent is not in a position to rely on the CAIPS notes as proof of their contents because this is classic hearsay. They are not admissible as business records in the absence of evidence which establishes that they satisfy the requirements of admissibility of business records. In order to make the CAIPS notes evidence of the facts to which they refer, they must be adopted at the evidence of the visa officer in an affidavit.
Further, in para. [22] Mr. Justice Pelletier found that CAIPS notes, by themselves, do not satisfy the requirements of necessity and reliability so as to be admissible in proof of their contents at the instance of the respondent Minister.
[17] Here there is no sworn testimony from the respondent to substantiate the claim that the applicant indicated he was working part-time and completing his master's programme at the University in Peshawar during the year in question. Absent any such evidence from the respondent, the applicant's uncontradicted sworn testimony is the only acceptable evidence before the court. That evidence does not support the officer's conclusion that the applicant worked only on a part-time basis. As for the occupational factor, the reasons for the officer's conclusion about the applicant's occupational factor are set out in the rejection letter as related to the officer's conclusion that he did not have experience in his chosen profession for one year, for that year was only part-time employment. No other reason is suggested for the officer's conclusion that he had not performed a substantial number of the main duties of the intended occupation.
[18] The applicant points to a letter of March 2000 from Dr. Sarwar, responsible at the applicant's university for his employment and his degree supervisor, which letter lists areas of advice and assistance Mr. Kiyani was required to provide to farmers when he served as an agricultural representative from April 1997 to June 1998. The respondent on the other hand, points to a letter of August 1998, from the same Dr. Sarwar, which says nothing of his responsibilities other than that from April 1997 to June 1998 he worked on the Dutch Project as a research officer. Clearly, underlying evidence from Dr. Sarwar could have been relied upon to reach opposite conclusions about the applicant's service in his intended occupation.
[19] In my opinion, the officer's assessment of the occupational factor relies significantly on the assessment that the applicant did not serve full-time in the occupation in question and thus was entitled only to an assessment of "0" for the occupational factor.
[20] Since, in the absence of an affidavit from the visa officer, the only sworn evidence before the court is that of the applicant by his sworn affidavit, the certified record of proceedings up to the visa officer's decision may be relied upon generally as to the process followed in considering the application by Mr. Kiyani. But where the record differs from or contradicts the sworn affidavit of the applicant, upon which there has been no cross-examination, the applicant's affidavit providing sworn evidence is to be preferred.
[21] Here that evidence clearly sets out the applicant's statement at his interview that he worked on a full-time basis as an agricultural representative from April 1997 to June 1998. The officer's conclusion that he has then worked only part-time, and thus had no experience in his intended occupation, was patently unreasonable on the evidence. The assessments of "0" for the experience factor and for the occupational factor were both based on the officer's misunderstanding about his lack of full-time experience. Thus, those assessments were patently unreasonable.
Conclusion
[22] In the result, since the decision of the visa officer was patently unreasonable, the decision of November 14, 2000, rejecting the applicant's application as an assisted relative for permanent residence in the intended occupation of agricultural representative, is set aside. The application is referred for reconsideration by a different visa officer.
[23] Counsel did not propose a question for certification pursuant to s.74(d) of the Immigration and Refugee Protection Act as a serious question of general importance. No question is certified.
(signed) W. Andrew MacKay
_____________________________
JUDGE
OTTAWA, Ontario
February 7, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-460-01
STYLE OF CAUSE: Faheem Ahmad Kiyani
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 8, 2002
REASONS FOR ORDER : of the Honourable Mr. Justice MacKay
DATED: February 7, 2003
APPEARANCES:
Mr. Matthew Moyal FOR APPLICANT
Mr. Greg George FOR RESPONDENT
SOLICITORS OF RECORD:
Moyal & Moyal FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada