Last Updated on February 24, 2016 by Steven Meurrens
It is not uncommon for applicants to have a differing account of what transpired during a visa interview or a port of entry matter from what an immigration officer says occurred. As such, it is very important that applicants take detailed notes of every interaction that they have with government officials.
The Federal Court recently dealt with the issue of inconsistencies in Gedara v. Canada (Citizenship and Immigration), 2016 FC 209. The Federal Court stated (emphasis added, and citations removed for ease of reading):
The affidavits filed by the Applicant and by the Interviewing Officer present opposing accounts of the tone of the interview and whether concerns were specifically communicated. I find the Applicant’s affidavit more persuasive and assign it more weight for the following reasons.
I agree with the reasoning in Rukmangathan, above, at paras 30, 31, citing Parveen v Canada (Minister of Citizenship and Immigration), that “…[v]isa officers deal with many applications, one can expect that they will not have as precise a memory of the event as does the applicant” The interview took place on March 11, 2015, yet the Officer’s affidavit was sworn in December 4, 2015 – approximately nine months later. The extended passage of time and the number of interviews this Officer would have conducted in the interim calls into question the reliability of her attested statements made months later.
As well, the Officer’s affidavit essentially reiterates the GCMS notes, adding very little to their substance.
The takeway from this decision is clear, and it is the importance of taking notes at the same time (or as shortly thereafter) as the interaction with the government official.
The Federal Court issued a similar statement in Rukmangathan v. Canada (Minister of Citizenship and Immigration), 2004 FC 284, when it stated at paragraph 31 that (emphasis added):
Here, the memory of the visa officer has been placed in doubt, given that she has attested to writing the notes at the time of the interview, when clearly she wrote them close to a month past that time. The events of the interview cannot be said to have occurred precisely as the officer has attested to them. Further, her account of the interview is vulnerable due to the fact that she failed to record her impressions of it during the interview, or closely thereafter.
Finally, in Canada (Citizenship and Immigration) v. Tian, 2018 FC 65, Justice Barnes strongly expressed his displeasure with the Canada Border Services Agency (the “CBSA“) when it was revealed that it was (apparently) the routine practice of an officer at the Vancouver International Airport to not take notes on certain removal matters. That case involved Citizenship and Immigration Canada seeking judicial review of an Immigration and Refugee Board decision (the “IRB”) where an IRB member determined that because of the lack of notes it was going to favour the immigrant’s contention that the CBSA was completely incorrect as to whether he had even been interviewed by a CBSA officer as the officer claimed.
Justice Barnes stated that:
While is true that the Board did not refer to the evidence of Officer [for privacy reasons I have removed the officer’s name, and will going forward replace it with ABC] usual practices in its concluding analysis, it is implicit that this evidence was found to be insufficient. This was not an unreasonable conclusion where, by his own admission, Officer ABC failed to follow the required procedure. Officer ABC admitted that he did not take notes of his interview with Mr. Tian despite being aware that important rights of appeal were at stake and that the subsection 44(1) Highlights Report was a document of some consequence (see p 98 and p 110 of the CTR). Indeed, his usual practice was not to take notes in such cases (see p 100 of the CTR). He also admitted that he failed to follow the required protocol for completing the part of the subsection 44(1) Highlights Report where reasons and a signature are required (see p 108 of the CTR).
In the face of these breaches of protocol, it should hardly surprise the Minister that the Board was not willing to accept that, in all other respects, Officer ABC must have followed his usual procedure….
It was not unreasonable for the Board to conclude on this record that the conduct of a proper subsection 44(1) review had not been established. Indeed, any other outcome would have been surprising. A finding of inadmissibility is profoundly significant to a permanent resident like Mr. Tian. The Minister Delegate’s performance of the statutory duties required by subsection 44(1) is not to be done in a perfunctory way. Without exception, it requires careful consideration and documentation of the permanent resident’s explanations, most notably those bearing on the potential to grant humanitarian and compassionate relief. The decision must also be supported with adequate reasons. To the extent that the practices followed in this case may be common at the Vancouver airport, they should in no circumstances continue to be followed.
Although Tian is an extreme example, it does highlight the importance of taking notes, and why it is important that visa applicants also take them.