Date: 20030626
Docket: IMM-3251-01
Citation: 2003 FCT 784
Ottawa, Ontario, Thursday the 26th day of June 2003
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
FADY RAAFAT MOHAMMED HASSAN DEGHEIDY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Degheidy is an Egyptian citizen who applied for permanent residence in Canada in the Independent category under the occupation of Petroleum Engineer, NOC 2145. Mr. Degheidy's application was paper screened, and after a personal interview he received a total of 64 units of assessment. Mr. Degheidy received zero units of assessment for experience, which reflected the view of the visa officer that Mr. Degheidy's evidence of employment experience was not credible. The visa officer therefore determined that Mr. Degheidy had not performed a substantial number of the main duties of a Petroleum Engineer. Since he obtained zero units for experience, the visa officer could not issue an immigrant visa and she refused Mr. Degheidy's application for permanent residence.
[2] Mr. Degheidy brings this application for judicial review of that negative decision. In addition to challenging the visa officer's assessment of his experience, Mr. Degheidy challenges the award of zero units of assessment for his knowledge of French, and the award of five units of assessment for personal suitability. Also, Mr. Degheidy asserts that during the interview the officer acted in a manner so as to give rise to a reasonable apprehension of bias.
THE ALLEGATION OF REASONABLE APPREHENSION OF BIAS
[3] There is little dispute between the parties as to the applicable legal principles. A reasonable apprehension of bias is established where it can be said that a reasonable and right-minded person, viewing the matter independently, realistically and practically, would have a reasonable apprehension of bias on the part of the decision-maker. In Au v. Canada (Minister of Citizenship and Immigration), 2001 FCT 243 in the specific context of a visa officer, Mr. Justice Nadon, then of the Trial Division of the Court, noted that because a visa officer does not act in a judicial or quasi-judicial capacity, what is required of an officer is an absence of conflict of interest and a mind that is open to persuasion.
[4] The visa officer and Mr. Degheidy very much dispute what transpired during the interview.
[5] According to Mr. Degheidy, as soon as he entered the interview room it was clear to him that he and the visa officer "recognized each other from a previous encounter" when he had applied for visitor's visa and it was apparent to him that the visa officer carried her dislike of him forward from that previous encounter. Mr. Degheidy described the visa officer to be agitated, irritated and hostile, and said that she would not let him explain how it was that he could be a Petroleum Engineer and not work in the field.
[6] According to the visa officer, she was neither impatient nor hostile, and she gave Mr. Degheidy "every opportunity to put forward all relevant facts with regard to the assessment of his experience in his intended occupation".
[7] Neither Mr. Degheidy nor the visa officer were cross-examined on their affidavit evidence. Faced with what counsel referred to as these "dueling affidavits" it is difficult to determine what actually transpired at the interview. While it is argued that the visa officer's version of events is supported by the contemporaneous CAIPS notes, I find the effect of those notes is balanced by a letter written almost immediately following the interview, and before the negative decision was received, by Mr. Degheidy's counsel. Concern was expressed about the conduct, content, and air of hostility at the interview.
[8] In the end, I consider the most reliable evidence to be the following objective indicators:
i) Mr. Degheidy says that the visa officer was unpleasant to him at their prior meeting when she interviewed him for a visitor's visa in 1999. However, in 1999 the officer granted a visitor's visa to Mr. Degheidy. This is not consistent with a closed mind or negative pre-disposition.
ii) Mr. Degheidy did not point to any evidence which would support the allegation that the visa officer held a grudge for the three years which intervened between the interview for a visitor's visa and the interview for permanent residence. The visa officer was not challenged on her evidence that, given the volume of applications she deals with, she would not have recognized Mr. Degheidy by name or by personal features and that she only became aware that she had previously interviewed Mr. Degheidy when she saw her initials on the file.
iii) In one instance where there was doubt with respect to the application for permanent residence, the visa officer gave the benefit of the doubt to Mr. Degheidy in that she gave him full units of assessment for education, notwithstanding that his supporting documents were of a form not familiar to the officer. Further, the officer's assessment of Mr. Degheidy's knowledge of English (9 units) and personal suitability (5 units) do not suggest to me that she was motivated by any animus.
[9] The visa officer and Mr. Degheidy appear to genuinely hold very different perceptions of the interview. Mr. Degheidy has, however, failed to persuade me that the officer decided his application improperly or pre-judged the application to the point of not being open to persuasion.
[10] It may, nonetheless, be salutory to restate the obligation of a visa officer as described by Mr. Justice Lutfy, as he then was, in Jiang v. Canada (Minister of Citizenship and Immigration) (1997), 138 F.T.R. 230. There, he wrote at paragraph 5:
The principles of natural justice and procedural fairness apply to the visa officer's meeting with the applicant. The visa officer has a serious responsibility during such interviews in assessing whether the applicant will be able to become successfully established in Canada. The visa officer must maintain a level of decorum conducive to an open and fair exchange, even in circumstances which must be sometimes difficult and trying. Similarly, for many applicants, particularly those from cultures substantially different from that of the person representing Canada, these interviews are also stressful. On balance, the visa officer, when challenged by inappropriate conduct by the persons being interviewed, must remain composed in maintaining an orderly meeting. The visa officer presides over the interview. As the decision-maker, the visa officer has the duty to provide, to the extent possible, a calm environment as the applicant attempts to meet the selection criteria. [underlining added]
THE ASSESSMENT OF EXPERIENCE
[11] The determination of whether an applicant for permanent residence has the necessary experience is a pure question of fact, and deference is owed by the Court to such findings of fact. As I wrote in Ushenin v. Canada (Minister Citizenship and Immigration), 2003 FCT 315 at paragraph 5:
With respect to the applicable standard of review, an application to be admitted to Canada as an immigrant gives rise to a discretionary decision on the part of a visa officer, which is required to be exercised on the basis of specific statutory criteria. Where that statutory discretion has been exercised in good faith and in accordance with the principles of natural justice, and where reliance has not been placed upon irrelevant or extraneous considerations, a reviewing court is not to interfere. See Maple Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2 at pages 7-8; To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (FCA) at para. 3; Jang v. Canada (Minister of Citizenship and Immigration), 2001 FCA 312 at para. 12.
[12] With respect to the assessment of experience in the present case, the only experience as a Petroleum Engineer put forward by Mr. Degheidy in his application was his work from August 1998 forward for Reliance Enterprises Ltd. ("Reliance") in Yemen.
[13] Prior to working for Reliance Mr. Degheidy worked as a "Business Co-ordinator & Computer Administrator" for Sahara Imports, and as a "Computer Administrator & Overseas Representative" for Egypt Trade. When employed by Reliance as a "Petroleum Engineer & Analyst" he also worked on a part-time basis for Information Dynamix as a "Computer Analyst & Overseas Representative".
[14] While Mr. Degheidy described himself to be a Petroleum Engineer, in his curriculum vitae which accompanied the application for permanent residence, Mr. Degheidy's job title with Reliance was not stated as Petroleum Engineer, but rather was described as "Data and project analyst and software developer".
[15] The advice Mr. Degheidy provided to Canadian immigration authorities when he applied for his visitor's visa in 1999 was that from August of 1998 to April 1999, he had lived in the United States. While there, he had started a business buying computer games in Canada and selling them into the United States. This period encompassed the time when Mr. Degheidy says he started to work for Reliance as a Petroleum Engineer.
[16] The letter of reference provided by Reliance while referring to Mr. Degheidy's title as "Petroleum Engineer and Analyst" stated that "[d]ue to his wide experience in the North American market he is our overseas representative and consultant".
[17] On these facts, the visa officer was not satisfied with Mr. Degheidy's claimed experience as a Petroleum Engineer. As a result, she did not grant any units of experience to him. This conclusion was, in my view, reasonably open to the officer and the award of zero units cannot be considered to have been made upon irrelevant or extraneous considerations, or without regard to the material before the officer, or to otherwise be patently unreasonable.
[18] This conclusion is fatal to Mr. Degheidy's application. It is therefore unnecessary for me to consider the award of units for his knowledge of French or personal suitability. The application for judicial review will be dismissed.
[19] Counsel posed no question for certification, and no question arises on this record.
ORDER
[20] IT IS HEREBY ORDERED THAT:
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-3251-01
STYLE OF CAUSE: Fady Raafat Mohammed Hassan Degheidy v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, June 5, 2003
REASONS FOR ORDER:
AND ORDER: Hon. Madam Justice Dawson
DATED: June 26, 2003
APPEARANCES:
Mr. Benjamin Kranc FOR THE APPLICANT
Mr. Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kranc & Associates
Barristers and Solicitors
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General FOR THE RESPONDENT