Digests

Du v. Canada (Minister of Citizenship and Immigration)

IMM-2229-00

2001 FCT 485, Dawson J.

15/5/01

10 pp.

Judicial review of visa officer's refusal of application for permanent residence--Applicant 52-year-old citizen of People's Republic of China--Applied for permanent residence in assisted relative category in intended occupation of Heavy-Duty Equipment Mechanic--Visa officer awarded applicant maximum units for occupational factor and experience, 10 units for education, 0 units for language, and 3 units for personal suitability--Although applicant filing affidavit in support of application, visa officer did not--CAIPS notes contained in tribunal record entered three and one half months after applicant interviewed by visa officer--No explanation for delay--Immigration Regulations, 1978, Schedule I, providing 13 units of assessment to be awarded for education to applicants who have diploma requiring at least one year of full-time classroom study completed at college, if such program requiring completion of secondary school diploma that may lead to entrance to university--Applicant receiving diploma in respect of junior middle school education, diploma in Plastics Machinery Specialty--Tribunal record containing no evidence applicant's diploma from junior middle school might have led to entrance to university in China--(1) On evidence could not conclude visa officer committed reviewable error in concluding applicant entitled to 10 units of assessment in respect of education--(2) Issue of whether visa officer denied applicant procedural fairness, or patently unreasonable in awarding applicant 3 units in respect of personal suitability requiring consideration of possible use of visa officer's CAIPS notes in circumstances where not supported by affidavit from author of notes--According to Wang v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 165 (C.A.); Qiu v. Canada (Minister of Citizenship and Immigration) (2000), 4 Imm. L.R. (3d) 247 (F.C.T.D.) while admissible as part of record, evidencing reasons for decision under review, CAIPS notes not proving underlying facts which they record and on which they rely--Any inference of reliability must depend upon promptness with which notes entered into CAIPS system--Unexplained delay in entering notes, absence of any evidence as to provenance of precise content of notes leading to conclusion notes herein not reliable--Notes not satisfying requirements of necessity, reliability under principled approach to hearsay evidence, nor are they declaration made during course of duty, nor was evidentiary basis provided to establish notes meeting requirements of admissibility for business records--Applicant's assertions in affidavit taken as evidencing proof of what transpired at interview--No weight given to final entry in CAIPS notes to effect reasons for refusal of application given and applicant given opportunity to respond--Visa officer erred by not raising concerns, affording applicant opportunity to address them--Average assessment for personal suitability between five and six units--Not inconceivable visa officer would have awarded seven units to applicant--But as noted in Lin v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 289 (F.C.T.D.), reviewing courts not to withhold relief for breach of duty of fairness because dangerous to speculate on what might have happened if person allowed to present relevant evidence and because of importance of values underlying duty of fairness--Application allowed as applicant denied that opportunity--Immigration Regulations, 1978, SOR/78-172, Schedule I (as am. by SOR/93-412, s. 17).