Date: 20001130
Docket: IMM-1121-00
OTTAWA, ONTARIO, NOVEMBER 30, 2000
BEFORE: DANIÈLE TREMBLAY-LAMER J.
Between:
SHAILESH BABUBHAI PATEL
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
O R D E R
The application for judicial review is allowed. The case is referred back for re-hearing before another visa officer.
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Danièle Tremblay-Lamer
JUDGE
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Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20001130
Docket: IMM-1121-00
Between:
SHAILESH BABUBHAI PATEL
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review made pursuant to s. 82.1(2) of the Immigration Act[1] from a decision by John R. Butt (visa officer) on January 17, 2000 denying the permanent residence application made by Shailesh Babubhai Patel (the plaintiff).
[2] On February 20, 1997 the plaintiff filed an application for permanent residence as an independent immigrant.
[3] On November 16, 1999 the visa officer on duty at the Canadian delegation in New Delhi proceeded to interview the plaintiff. The visa officer assessed the permanent residence application in light of the profession indicated by the plaintiff, namely that of a civil engineer.
[4] The visa officer denied the permanent residence application on the following grounds:
(1) the plaintiff did not have the experience required to earn him a favourable assessment in the profession of civil engineer;
(2) the plaintiff's experience was actually that of a construction work superintendent, but there was no demand for that occupation in Canada.
[5] The plaintiff maintained that the visa officer erred in considering his application by failing to assess the experience he had acquired as a civil engineer. He blamed the officer for not considering certain points in his file, primarily a letter from his employer and a certificate by the Canadian Council of Engineers (CCE).
[6] In support of his application the plaintiff gave the visa officer his civil engineering diploma, his B.A. in civil engineering, a work certificate from the business "Arbuda Builders" indicating that the plaintiff had worked for the business as a civil engineer since October 1, 1992, and the professional qualifications evaluation form approved by the Canadian Council of Engineers in March 1997.
[7] In the case at bar, a short interview with a few questions on work experience cannot by itself provide the basis for an informed decision. It was unreasonable for the visa officer to reject all the evidence submitted simply because from the few replies given in the interview the plaintiff did not meet some of the requirements in the CCDP and N.O.C.
[8] Although the visa officer has a wide discretion in determining whether the plaintiff's qualifications meet the requirements laid down by the CCDP and the N.O.C. and he can attach greater weight to some of these points than others, he cannot require a plaintiff to meet all the duties stated therein.
[9] For example, as I indicated in Mahmoud,[2] it is interesting to consider the specified duties of a judge provided in the N.O.C. so as to understand that these requirements have to be assessed with flexibility. For example, the main duties of a judge read as follows:
Judges perform some or all of the following duties:
· preside over courts of law, interpret and enforce rules of procedure and make rulings regarding the admissibility of evidence;
· instruct the jury on laws that are applicable to the case;
· weight and consider evidence in non-jury trials and decide legal guilt or innocence or degree of liability of the accused or defendant;
· pass sentence on persons convicted in criminal cases and determine damages or other appropriate remedy in civil cases;
· grant divorces and divide assets between spouses;
· determine custody of children between contesting parents and other guardians;
· enforce court orders for access or support;
· supervise other judges and court officers.[3]
[10] It is apparent that, as a judge of the Federal Court of Canada I have no experience in criminal or family matters, so that I do not perform several of these duties. It is thus important for the visa officer not to give too strict an interpretation to these requirements.
[11] In the case at bar, a short interview with a few questions on work experience cannot by itself provide the basis for an informed decision. It was unreasonable for the visa officer to reject all the evidence submitted simply because from the few replies given in the interview the plaintiff did not meet some of the requirements in the CCDP and N.O.C.
[12] In Wang v. Canada (MCI),[4] the plaintiff thus had to be assessed in light of the other evidence in the record. As Lutfy J. indicated:
The applicant is correct, however, in asserting that the CCPE assessment forms part of the information, together with the applicant's curriculum vitae, description of employment tasks and letter of reference, which must be considered by the visa officer in determining whether the candidate meets the NOC criteria for engineers. Put differently, the visa officer's negative decision concerning the applicant's classification as an engineer must have been made with due regard for the information supplied by the applicant, including the CCPE assessment.[5]
[13] It is thus the officer who will be in a position to determine whether based on all these factors a plaintiff has the necessary work experience. Accordingly, it was unreasonable for the visa officer to disregard all the evidence submitted.
[14] For these reasons, the Court's intervention is justified. The application for judicial review is granted. The case will be referred back for re-hearing before another visa officer.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
November 30, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1121-00
STYLE OF CAUSE: SHAILESH BABUBHAI PATEL v. M.C.I.
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: NOVEMBER 22, 2000
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: NOVEMBER 30, 2000
APPEARANCES:
Sylvie Tardif FOR THE APPLICANT
Annie Van Der Meerschen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Brownstein, Brownstein & Associates FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
[2] Mahmoud Magdi Abdel Moneim v. M.C.I., November 30, 2000, IMM-3137-99 (F.C.T.D.)
[3] National Occupational Classification 1992, code 4111, Judges.
[4] [2000] 4 Imm. L.R. (3d) 193.
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