Date: 20030213
Docket: IMM-3213-01
Neutral citation: 2003 FCT 163
OTTAWA, ONTARIO, THIS 13th DAY OF FEBRUARY, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
RUI HENG ZHANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
- Mr. Rui Heng Zhang (the "Applicant") seeks judicial review of the decision of Visa Officer Vito Galifi (the "Visa Officer") dated May 23, 2001. In his decision, the Visa Officer refused the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of the Peoples Republic of China, applied for permanent residence in the independent category in June 1999. He identified his intended occupation as "Electrical and Electronic Engineer", National Occupation Classification ("NOC") category 2133. The Applicant included his wife and son as accompanying dependants.
[3] The Applicant submitted evidence concerning his education and work experience in China with his application for permanent residence. He obtained the degree of Bachelor of Engineering in China in 1984. He worked as an Electronic Engineer at Yantai Electronics Industrial Institute of Science and Technology from 1984 to 2000. He then took a leave of absence to pursue a masters degree in Information Technology in Australia.
[4] In addition to the information concerning his educational and occupational background and qualifications, the Applicant submitted a reference letter from his employer and a positive educational assessment from the Canadian Council of Professional Engineers.
[5] The Applicant attended an interview with the Visa Officer on May 8, 2001. According to the Computer Assisted Input Program System ("CAIPS") notes maintained by the Visa Officer, the Applicant was questioned about his work and what he does. The Visa Officer recorded, in the CAIPS notes, that he was not satisfied that the Applicant had performed the main duties of an electrical/electronic engineer as described in the NOC. No points were awarded for experience.
[6] The Visa Officer advised the Applicant, at the conclusion of the interview, that his application was unsuccessful on the basis that the Applicant had failed to show that he had experience in his intended occupation. In consequence, the Applicant had not obtained any units of assessment for experience. The refusal was formalized in a letter dated May 23, 2001.
[7] The CAIPS notes show that the Applicant was given an opportunity to respond to this negative decision, and that his only response was an inquiry whether he could re-apply.
[8] Both the Applicant and the Visa Officer filed affidavits in relation to this application for judicial review. The affidavits provide conflicting reports on what happened at the interview. The Applicant highlights a negative and disrespectful attitude on the part of the Visa Officer during the interview. The Visa Officer denies this and addresses the content of the questioning which took place, leading to his negative decision.
[9] The dispositive issue arising from this application for judicial review is whether the Visa Officer committed a reviewable error by failing to assess all the evidence before him, particularly the reference letter submitted by the Applicant. That reference letter, prepared by his long-term and current employer, outlined various duties performed by the Applicant from 1986. The letter is dated September 1999.
[10] The Applicant, relying on Javadimia v. Canada (Minister of Citizenship and Immigration) (2002), 23 Imm. L.R. (3d) 126 (F.C.T.D.) and Bhatti v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1889 (T.D.)(QL), argues that the Court will find a reviewable error when a visa officer makes a decision without regard to the evidence presented or discounts available evidence without reasons.
[11] The Applicant says that the Visa Officer here committed such an error since he failed to consider the reference letter which speaks to his experience in his intended occupation. The Applicant submits that in the absence of any reference by the Visa Officer to this letter, in the CAIPS notes or the refusal letter, the Court should infer that relevant evidence, as represented by the reference letter, was ignored.
[12] The Respondent argues that there is no obligation on a visa officer to refer to every piece of evidence and that in any event, there is a presumption that all relevant evidence has been considered. Here, the Respondent relies on Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL) and Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
[13] Furthermore, the Respondent says that the Visa Officer was entitled to prefer the evidence of the Applicant himself, gathered in the interview, to the reference letter in question. The Respondent here relies on Dizon v. Canada (Minister of Citizenship and Immigration, 2002 FCT 115, [2002] F.C.J. No. 135 (T.D.)(QL), where the Court held that employment letters carried little evidentiary weight once the visa officer has concluded that a person had not performed the duties in an intended occupation.
[14] One question arising in this case is whether the Visa Officer exercised his statutory discretion in a proper manner to reach a conclusion that is reasonably supported by the evidence and excluded extraneous material. Does the failure to mention the reference letter inevitably lead to the conclusion that the Visa Officer ignored it. Finally, was the Visa Officer entitled to prefer the viva voce evidence of the Applicant over the reference letter.
[15] In Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at 7-8, the Supreme Court of Canada identified the standard of review applicable to the decision of a statutory decision maker in the following terms:
It is, as well, a clearly-established rule that the courts should not interfere with the
exercise of a discretion by a statutory authority merely because the court might have
exercised the discretion in a different manner had it been charged with that responsibility.
Where the statutory discretion has been exercised in good faith and, where required, in
accordance with the principles of natural justice, and where reliance has not been placed
upon considerations irrelevant or extraneous to the statutory purpose, the courts should
not interfere.
[16] The Applicant raises an argument of procedural fairness relative to the manner in which the interview was conducted. The affidavits filed by both the Applicant and the Visa Officer provide very different accounts of the interview. In Dizon, supra, Justice Dawson dealt with a similar situation and described the affidavits there in issue as providing "starkly disparate versions of events". She commented on the affidavit evidence as follows:
This conflict in the evidence is troubling. Ultimately it must be resolved on the basis that this is an application for judicial review and not an appeal. On an application for judicial review the onus is on the applicant to establish any reviewable error and it is not for the Court to exercise its own discretion on the merits of the application for permanent residence.
[17] In my opinion, the same standard applies here. The Applicant did not cross-examine the Visa Officer upon his affidavit and a bare assertion of impropriety is insufficient to establish wrongful behaviour. I find that there was no breach of procedural fairness arising from the conduct of the interview.
[18] As for the alleged failure of the Visa Officer to consider the reference letter, I find that there is insufficient evidence to reach a conclusion on this point. While I agree with the Applicant that neither the CAIPS notes nor the refusal letter refer to this document, I am not persuaded that this silence means that the Visa Officer ignored the letter. Nor does it demonstrate that the ultimate conclusion reached by the Visa Officer about the Applicant's lack of experience was unreasonable, as the record does show that there was evidence to support that conclusion.
[19] The evidence in question is the information provided by the Applicant during his interview when he was questioned about his past and present employment duties by the Visa Officer. I am satisfied that the Visa Officer was entitled to weigh this evidence in forming his opinion. Indeed, this evidence is relevant to the task assigned to the Visa Officer, that is to determine if the Applicant met the requirements for obtaining entry into Canada. The evidence obtained at an interview is at least as important as documentary evidence tendered by a prospective immigrant. Weighing the evidence is within the mandate of the Visa Officer.
[20] In the result, I find no reviewable error in the process followed by the Visa Officer in this case. The application for judicial review is dismissed; counsel advised that there is no question for certification arising.
ORDER
The application for judicial review is dismissed; there is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3213-01
STYLE OF CAUSE: RUI HENG ZHANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, FEBRUARY 10, 2003
REASONS FOR ORDER
AND ORDER: HONOURABLE MADAM JUSTICE HENEGHAN
APPEARANCES:
Mr. Mark Rosenblatt FOR APPLICANT
Mr. Greg George FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Mark Rosenblatt
335 Bay Street, Suite 1000
Toronto, Ontario, M5H 2R3 FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030213
Docket: IMM-3213-01
BETWEEN:
RUI HENG ZHANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER