Docket No.: IMM-4875-01
Citation: 2003 FCT 503
Ottawa, Ontario, this 24th day of April, 2003
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
ABUL QASIM NAQVI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Mr. Naqvi seeks judicial review of the decision of the visa officer at the Canadian High Commission in Columbo, Sri Lanka, rejecting his application for permanent residency (independent category).
Facts
2. The applicant and his family are citizens of Pakistan. He applied as an electrical engineer (NOC 2133) and his qualifications and assessment are not at issue given that he was awarded more than the 70 units required by law.
3. Mr. Naqvi's application was rejected pursuant to subsection 19(1) of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act") which provides that visa officers cannot issue visas to persons when there are reasonable grounds to believe they will not be able to support themselves and those dependent upon them. Particularly, the visa officer in this case found that Mr. Naqvi did not have sufficient funds to settle in Canada.
4. In that respect, the Immigration Manual indicates that each case should be assessed individually and the amount of money required is somewhat fluid. Nevertheless, the Manual recommends that each primary applicant should be in possession of $10,000.00 CDN with $2,000.00 CDN extra per additional dependent.
5. Initially, Mr. Naqvi had indicated that his family would not accompany him to Canada. He had filed a bank document from the Habib Bank Limited certifying that on the close of business on July 13, 2000, the balance of his account with that bank was Rs 500,500 (about $11,000.00 CDN).
6. On September 26, 2000, Mr. Naqvi was notified that his interview would take place on December 14, 2000, and that he should bring with him the originals of all the documents submitted with his application and the originals of the documents marked with an "X" in the letter. One of the documents specifically requested was:
(X) proof of recent liquid funds of C$ 9,904 for your settlement in Canada: bank statements, time deposits and bank certificates. Please note that letters from the bank only specifying your account's balance at a given date should be avoided. We require bank statements showing transactions for at least the previous year.
(Emphasis added)
7. At the interview itself, Mr. Naqvi amended his application to include his spouse and his four children as dependents. Mr. Naqvi's financial situation was also discussed during the interview. The relevant CAIPS notes state:
ASSETS:
CASH IN ACCOUNTS $ 11K
RETIREMENT SETTLEMENT $37K STATES IT IS INVESTED WILL SEND PROF [SIC]
CLAIMS ANOTHER $32K CDN IN PROPERTY
However, Mr. Naqvi did not send any document evidencing that he had indeed invested the retirement fund received from the Pakistan Steel Mill where he worked for more than 20 years.
8. On July 10, 2001, having decided that Mr. Naqvi met the selection criteria and that there was no concern with respect to criminality, security or medical condition, the visa officer noted that he was still missing proof that Mr. Naqvi could be considered to have met the requirement of paragraph 19(1)(b).
9. On July 11, 2001, a letter was sent to Mr. Naqvi asking him to provide within 60 days proof of funds in the amount of $20,000.00 CDN. It is to be noted that by requesting proof of the full amount required to support himself and his family, the visa officer made no representation to Mr. Naqvi that the Habib Bank document already produced constituted satisfactory evidence for the first $11,000.00 CDN.
10. On or about August 22, 2001, Mr. Naqvi, filed the original of a document from the Muslim Commercial Bank Limited ("Muslim Bank") indicating that his account with this institution had been open since January 1999, and currently had a balance of Rs 910,000 (equivalent to CDN $21,967.00).
11. The visa officer in charge of Mr. Naqvi's file, having completed his term of duties in Sri Lanka, left that office at the beginning of August 2001. In early September 2001, a new visa officer reviewed the file and noted the document from the Muslim Bank contained spelling mistakes and that it was printed on a very poor quality paper casting doubt as to its reliability. Furthermore, he was not satisfied that Mr. Naqvi had provided credible evidence of adequate financial resources because this account did not appear in the sources of funds previously disclosed during his interview. Accordingly, a refusal letter was sent to Mr. Naqvi.
Issues
12. Did the visa officer breach his duty to act fairly by failing to give Mr. Naqvi an opportunity to address his concerns with respect to the Muslim Bank document and his ability to support himself and his family.
Analysis
13. Mr. Naqvi submits that, when a visa officer questions the reliability of the documentation provided by an applicant, he is required to put this particular matter to the applicant and provide him with an opportunity to respond to the specific concern. In that respect, Mr. Naqvi relies on a statement of Teitelbaum J. in Ahmad v. Canada [1997] F.C.J. 1461 (QL) who said at paragraph 24:
From the Officer's CAIPS notes it is not clear whether "no cash fuinds to support settlement" means insufficient funds or none whatsoever. The Officer's affidavit (tab B of the respondent's Application Record) is silent on this matter. What is clear, however, is that in the event the Officer believed the applicant had no cash funds she was either mistaken on the evidence or did not have confidence in the validity of the applicant's bank statements. If the latter is true then there may have been a duty to give the applicant some opportunity to disabuse the Officer of that impression.
(My emphasis)
14. He also cites Zheng v. Canada (Minister of Citizenship and Immigration [1999] F.C.J. 1397 (QL) (F.C.T.D.) (para. 6), and Huang v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 43 (QL) (F.C.T.D.) (para. 5 and 6), for this proposition.
15. He further says that following the logic in Chou v. Canada [1998] F.C.J. 819 (QL) (para. 17 to 21 and more particularly para. 46 and 47), where the decision of a visa officer was quashed for the failure to allow the applicant to explain a contradiction between a document filed by him after the interview and other information on file, documents submitted after the interview are to be considered in the same way as "extrinsic evidence" and applicants have a right to explain or to address particular concerns relating to or created by them.
16. The respondent argues that the duty of a visa officer to advise of his concerns is quite limited. It applies only to concerns arising from information or documentation not brought forward by the applicant, i.e., extrinsic evidence as defined in several decisions of this Court such as Shah v. Canada (Minister of Employment and Immigration) [1994] F.C.J. 1299 (QL) and Dasent v. Canada (M.C.I.) (1995), 1 F.C. 720 (T.D.)
17. However, in his Supplemental Memorandum of Argument, the respondent admitted that there may be some exceptions to this limited duty when the credibility of a key document is questioned and the impugned evidence was not weak to start with.
18. The Court finds that, although the visa officer's duty of advising an applicant of his concerns is indeed limited, it goes beyond concerns raised by extrinsic evidence. When key and otherwise comprehensive evidence is produced by an applicant and its credibility is questioned by the visa officer, the applicant should be given an opportunity to explain or address the concerns.
19. This does not in any way change the rule that an applicant must put his best foot forward and not wait for the visa officer to ask him to provide better evidence to convince him that he or she meets the criteria to enter Canada. As mentioned by Teitelbaum J. in Ali v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. 468 (QL) at para. 19, and reiterated consistently since then, "the applicants should assume the visa officer's concerns will arise directly from the Act or the Regulations."
20. Therefore, if an applicant chooses to provide weak evidence to support his position, the concern created by or in respect of such questionable evidence arises from the statutory requirement and although it may still be preferable to inform the applicant about it, failure to do so will not violate the duty of fairness.
21. Mr. Naqvi had been warned that documents certifying a balance in an account at a certain date should be avoided. In his affidavit and in his written submissions, he stresses the fact that had he known of the visa officer's concern, he could have provided further documentation to substantiate that he had the necessary settlement funds or contact the bank to confirm the deposits. He therefore knew that there were better ways of evidencing his financial capability. Clearly, he did not put his best evidence forward despite the express warning received.
22. Mr. Naqvi is a well educated man and he is fluent in English. He was in a position to understand this warning and to appreciate that the document provided by the Muslim Bank did contain several typos and grammatical errors. He knew that the visa officer was satisfied of his qualification as an engineer after the interview (see his affidavit, para. 5), and that his financial ability to support his family was one of the few key issues left to resolve.
23. To say that in such circumstances, the visa officer still had to give him an opportunity to alleviate his concerns about his financial situation would mean that applicants can simply disregard and ignore general directives given to them such as the one contained in the form letter of September 26, 2000.
24. In Wang v. Canada (Minister of Citizenship and Immigration) (1999) F.C.J. 1274 (QL) (T.D.), Pelletier J. (as he then was) held that there was no denial of natural justice because a visa officer failed to advise the applicant of concerns arising from the unofficial translation of a document filed by him. Such document did not meet the Immigration Department criteria. The applicant had been advised, in a general letter similar to the one received by Mr. Naqvi on September 26, 2000, that certified translations should be provided. The visa officer was thus entitled to reject the document out of hand. By considering it, Pelletier J. held that he did not lose the right to reject it and it certainly did not create a right for the applicant to explain the contradictions created by this translation.
25. The same logic applies here. It may have been more considerate to advise Mr. Naqvi that there was a problem in meeting the requirement of paragraph 19(1)(b) of the Act, but the failure to do so does not amount to a breach of the duty of fairness. There is no reviewable error in this decision and the application is dismissed.
26. The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and have not done so. I do not propose to certify a serious question of general importance
ORDER
THIS COURT ORDERS that:
1. The motion for judicial review is dismissed.
2. No question of general importance is certified.
"Johanne Gauthier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4875-01
STYLE OF CAUSE: Abul Qasim Nawvi v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 19, 2003
REASONS FOR ORDER AND ORDER: Gauthier J.
DATED: April 24, 2003
APPEARANCES:
Ms. Sabrina Tozzi FOR APPLICANT
Mr. Stephen Jarvis FOR RESPONDENT
SOLICITORS OF RECORD:
Green & Spiegel FOR APPLICANT
2800-390 Bay Street
Toronto, Ontario, M5h 2Y2
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario, M5X 1K6