Date: 20010110
Docket: IMM-5901-99
BETWEEN:
SUMAN PREET SINGH ARORA
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a decision of a visa officer at the Canadian Embassy in Cairo whereby the visa officer concluded that the applicant did not meet the requirements for immigration to Canada. The decision under review is dated the 7th of October, 1999.
[2] By letter dated the 31st of May, 1999, the applicant's consultant requested that his client's qualifications be considered in respect of the occupations of Interior Design Technician (NOC 5242.0) and Drafting Technologist (Architectural) (NOC 6431.0).1 The decision letter under review dealt only with the occupation of Interior Design Technician. Similarly, apart from a very brief preliminary reference to the occupation Drafting Technologist (Architectural), the visa officer's CAIPS notes also dealt only with an assessment in respect of the occupation Interior Design Technician.
[3] Counsel for the applicant urged that the visa officer erred in two respects: first, in failing to consider the applicant's experience and qualifications as a whole resulting in an award of zero units of assessment for experience in relation to the occupation Interior Design Technician; and second, in failing to assess the applicant in respect of the occupation Drafting Technologist (Architectural).
[4] In Karathanos v. Canada (Minister of Citizenship and Immigration)2, Madame Justice Sharlow, then of the Trial Division of this Court, wrote at paragraphs 24 and 25 of her reasons:
| [24] Several observations may be made about the visa officer's assessment of Ms. Karathanos' experience... |
| [25] In this case, the visa officer was faced with an applicant who did not have the educational requirements that are "usually required" for her chosen occupation. He [the visa officer] should have considered her education, training and experience in its entirety with a view to determining whether it was the approximate equivalent of [the educational requirements that are "usually required"]. After reviewing the record, I am far from satisfied that the visa officer made a reasonable assessment of Ms. Karathanos' work experience with that question in mind. |
[5] Counsel for the applicant urged that precisely the same might be said on the facts of this matter. I reach a different conclusion. I am satisfied that the visa officer's CAIPS notes demonstrate a "reasonable assessment" of the entirety of the applicant's work experience as well as his limited educational accomplishments and that her conclusion that the applicant's work experience and educational accomplishments fell well short of an equivalent of the educational requirements that are "usually required" was reasonably open to her.
[6] The second reviewable error urged on behalf of the applicant, that is to say, that the visa officer failed to assess the applicant in the occupation of Drafting Technologist (Architectural), would appear on the face of the Tribunal Record in this matter, and in the absence of the following concern, to be determinative of this application for judicial review in favour of the applicant.
[7] In Olajuwon v. Canada (Minister of Citizenship and Immigration)3, Mr. Justice MacKay wrote at paragraph 9 of his reasons:
| In the case at bar, the applicant specifically requested that he be assessed in relation to two occupations. In the letter rejecting his application, only one of those was addressed by the visa officer and there is no evidence except for the later affidavit of the visa officer that the applicant was in fact assessed in relation to the [second] occupation ... for which he had specifically requested assessment. The visa officer has a duty to assess an applicant for permanent residence in the occupations for which he requests assessment and the results of that assessment are to be set out, in any letter rejecting the application, for one or more occupations for which the applicant requests assessment. |
Here, as in Olajuwon, the applicant, through his consultant, specifically requested that he be assessed in relation to two occupations. The letter rejecting his application addressed only one of those occupations. No affidavit was filed in this matter by the visa officer and the Tribunal Record provides no evidence that the applicant was in fact assessed in relation to his second identified occupation.
[8] Notwithstanding this oversight on the part of the visa officer, I conclude that on this second ground, as well, the applicant cannot succeed. Neither on the face of the application for judicial review nor in the applicant's affidavit which would appear to have been sworn and filed well after the Tribunal Record had been received by counsel for the applicant, is the failure to assess the applicant in respect of his second identified occupation noted to be an issue. If it had been, the respondent would have been in a position to file an affidavit of the visa officer responding to that issue if, indeed, there was a rational response. In Canada (Human Rights Commission) v. Pathak4, Mr. Justice Pratte, for the Court, wrote:
| A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent. |
[9] While the issue on this application for judicial review is clearly not the scope of documentation relevant to the application, the principle that the Court will deal only with the grounds of review invoked by the applicant in the originating notice of motion and in the supporting affidavit must, I am satisfied, govern. If, as here, the applicant were able to invoke new grounds of review in his memorandum of argument, the respondent would conceivably be prejudice through failure to have an opportunity to address the new ground in her affidavit or, once again as here, to at least consider filing an affidavit to address the new issue. In the result, I determine that the second issue raised on behalf of the applicant is not properly before the Court.
[10] In the result, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
January 10, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: SUMAN PREET SINGH ARORA |
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: TUESDAY, JANUARY 9, 2001 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: WEDNESDAY, JANUARY 10, 2001
| APPEARANCES BY: Mr. Max Chaudhary |
| SOLICITORS OF RECORD: Chaudhary Law Office |
| 18 Wynford Drive, Suite 707 |
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 20010110
Docket: IMM-5901-99
BETWEEN:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
__________________
1 Tribunal Record, page 36.
2 [1999] F.C.J. No. 1528 (Q.L.), (F.C.T.D.).
3 [1998] F.C.J. No. 967 (Q.L.), (F.C.T.D.).
4 [1995] 2 F.C. 455 (C.A.), leave to appeal to the Supreme Court of Canada dismissed, [1995] S.C.C.A. No. 306.
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