Date: 20021126
Docket: IMM-3882-01
Neutral citation: 2002 FCT 1219
Ottawa, Ontario, Tuesday the 26th day of November 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
PARVANEH GOLBAHARAN & PARVIZ KHILAIEE
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Ms. Golbaharan and Mr. Khilaiee are spouses who both applied as principal applicants for permanent residence status in Canada. Ms. Golbaharan was convoked for an interview, which she attended with her husband and daughter. Following the interview Ms. Golbaharan's application was refused on the ground that she received insufficient units of assessment.
[2] Although the applicants both applied as principal applicants in two different applications, no argument is made that both applicants were entitled to be assessed as principal applicants. It is conceded that subsection 8(1) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations") made it mandatory for the visa officer to assess only one or the other of the applicants.
[3] Rather, it is asserted that at the interview Ms. Golbaharan asked the visa officer why her husband was not being interviewed, and the officer replied that because Mr. Khilaiee was a year older than Ms. Golbaharan the officer did not believe that Mr. Khilaiee's application would be successful. The applicants therefore argue that the visa officer denied procedural fairness to them by failing to assess Mr. Khilaiee beyond the age factor of Schedule I of the Regulations. The applicants rely upon the principle that if a visa officer undertakes a responsibility which is not legally required, in this case the responsibility to assess Mr. Khilaiee's application for permanent residence, procedural fairness requires that the application be considered thoroughly and not summarily. Particular reliance is placed upon the decision of Mr. Justice O'Keefe in Rozario v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1261 (T.D.).
[4] I am satisfied, however, that the Rozario decision is distinguishable on its facts. There, the visa officer agreed that she had assessed the spouse of the principal applicant. Mr. Justice O'Keefe found on the record before him that the visa officer had undertaken an assessment of the spouse, but not carried out a thorough assessment.
[5] In the present case, I conclude that the visa officer did not begin or undertake an assessment of Mr. Khilaiee's application. I reach this conclusion for the following reasons.
[6] First, the visa officer swore in his affidavit filed in opposition to this application that he did not assess Mr. Khilaiee, and the officer was not cross-examined on that statement. Second, this evidence is consistent with the Computer Assisted Immigration Processing System ("CAIPS") notes which contain no indication that the visa officer ever considered the qualifications of Mr. Khilaiee. Mr. Khilaiee is only mentioned at the very beginning of the CAIPS notes where the officer lists who is present during the interview, and again mentioned in the notes where the officer records that Mr. Khilaiee made a comment to his wife in Farsi during the interview. Finally, even if the officer made the comment about Mr. Khilaiee's age, I am not persuaded that this one comment about his age amounted to an assessment, or the beginning of an assessment, of Mr. Khilaiee. It is to be remembered that only Ms. Golbaharan was convoked for interview. At the beginning of the interview the visa officer confirmed that Ms. Golbaharan, as the principal applicant, intended to work in Canada as a civil engineer and that she wanted to be assessed under this occupation. There was therefore no reason for the officer to assess Mr. Khilaiee. The officer's response to the question as to why he did not want to interview Mr. Khilaiee is an insufficient evidentiary basis upon which to conclude that the officer thereby embarked upon a flawed assessment of Mr. Khilaiee.
[7] For these reasons, the application for judicial review is dismissed. Counsel did not pose a question for certification, and no question arises on this record.
ORDER
[8] IT IS THEREFORE ORDERED THAT:
1. The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3882-01
STYLE OF CAUSE: Parvaneh Golbaharan & Parviz Khilaiee v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 19, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
APPEARANCES:
Mr. Max Chaudhary FOR APPLICANTS
Mr. Michael Butterfield FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Max Chaudhary FOR APPLICANTS
North York, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada