Date: 20011018
Docket: IMM-575-00
Neutral citation: 2001 FCT 1131
BETWEEN:
AMIT MOHAN SHARMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The Applicant seeks Judicial Review of a decision of a Visa Officer dated December 13th, 1999 in which the Applicant's application for permanent residence in the independent category was denied.
[2] The issue is whether the Visa Officer erred in awarding the Applicant zero units for experience under the occupation of Retail and Wholesale Buyer (NOC 6233).
[3] The Applicant seeks to characterize the issue as whether the Officer misinterpreted the description of Retail and Wholesale Buyer. However, I am bound by the decision of the Federal Court of Appeal in Lim v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 8 (F.C.A.) where Mahoney J. stated at page 3:
Whether the Appellant really was qualified to be a Personnel Officer in Canada was a pure question of fact entirely within the mandate of a visa officer to resolve.
[4] Justice Mahoney continued and stated:
It is clear, from the refusal letter, that the visa officer directed his mind to the proper question and that his conclusion was not patently unreasonable.
I agree that the conclusion is applicable in the case before me.
[5] Rothstein J.A. sitting as a Trial Judge confirmed in Seepersaud v. Canada (Minister of Citizenship and Immigration), [2001] F.C.T. 948 that the test of patently unreasonable is applicable in this type of case. I agree that Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 has not changed the test where it is a question of fact.
[6] Furthermore, sec. 18.1(4)(d) of the Federal Court Act provides that:
| (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal:
....
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
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(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas :
....
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
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[7] The Visa Officer did not make an erroneous finding of fact in a perverse or capricious manner without regard for the material before her.
[8] The Visa Officer did err when she said the maximum number of units to be awarded for experience in this case was 4 whereas the Regulations state it should be 6 based on the Applicant's 4 years of work experience. However, this is not a reviewable error since the Applicant did not have 1 year's experience as a buyer and accordingly the Visa Officer's finding that the Applicant was entitled to zero units is not patently unreasonable, nor is it clearly wrong.
[9] It was open to the Visa Officer to conclude that the buying activities of the Applicant (who did some of the duties included in NOC 6233) did not take up more than an hour a day over a 4 year period. This does not come close to adding up to 1 year's experience. It is open to a Visa Officer to conclude that a person is not a Buyer where the person spends only a minor portion of the day doing Buyer's activities.
[10] The application for Judicial Review is dismissed.
"W.P. McKeown"
J.F.C.C.
Toronto, Ontario
October 18, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-575-00
STYLE OF CAUSE: AMIT MOHAN SHARMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, OCTOBER 9, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: THURSDAY, OCTOBER 18, 2001
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Mr. Greg G. George
For the Respondent
SOLICITORS OF RECORD: Mr. M. Max Chaudhary
Barrister & Solicitor
18 Wynford Drive, Suite 707
North York, Ontario
M5X 1K6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011018
Docket: IMM-575-00
Between:
AMIT MOHAN SHARMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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