Khan v. Canada (Minister of Citizenship and Immigration), docket IMM-2788-98

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docket IMM-2788-98

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Text of decision

Date: 19990106

Docket: IMM-2788-98

BETWEEN:

GHAFOOR KHAN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

(Edited version of reasons delivered from the Bench

on Wednesday, January 6, 1999 at Toronto, Ontario)

REED J.

[1] I am not persuaded that there are grounds that would allow me to set aside the visa officer's decision. I am mindful that on judicial review, it is not a judge's role to substitute his or her decision for the decision given by a visa officer. I am also mindful that one should not be too "picky', if I may use a colloquial expression, when reading CAIPS notes.

[2] I accept counsel for the respondent's position that the statement by the visa officer in the CAIPS notes, that the applicant does not use computers, was a statement of fact, gleaned from the interview, but not a matter upon which the visa officer relied in coming to his decision. As such the decision in Haughton v. Minister of Citizenship and Immigration (1996), 34 Imm. L.R. (2d) 284 (F.C.T.D.) does not apply.

[3] The gist of the visa officer's decision, the main foundation, was that the duties the applicant performed were closer to those of a secretary, than an executive secretary. The visa officer interviewed the applicant. There will have been parts of that interchange that are not rendered in the CAIPS notes. More importantly, there is material on the record that supports the visa officer's decision. I repeat that to set aside the decision because I might have evaluated the job differently (which I am not convinced I would have done) would be to engage in an undertaking not open to a judge on judicial review.

[4] With respect to the "nothing extraordinary" statement, I accept counsel for the respondent's argument that it relates to the visa officer's Regulation 11 discretion, not to the unit assessment for personal suitability. This is a fair reading of the notes. I agree that Regulation 11 does not use the word "extraordinary" but think I would be reading the notes too closely, if I were to interpret the statement as indicating that an improper test for Regulation 11 purposes had been applied. (I note that there is nothing in the record to support a finding that this applicant's unit assessment does not adequately "reflect his chances of becoming successfully established".)

[5] Unfortunately for your client, Mr. Sherman, I must conclude that the application for judicial review be dismissed.

"B. Reed"

Judge

TORONTO, ONTARIO

January 6, 1999

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-2788-98

STYLE OF CAUSE: GHAFOOR KHAN

and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

DATE OF HEARING: WEDNESDAY, JANUARY 6, 1999

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: REED, J.

DATED: WEDNESDAY, JANUARY 6, 1999

APPEARANCES: Mr. Irvin Sherman

For the Applicant

Ms. Lori Hendricks

For the Respondent

SOLICITORS OF RECORD: Martinello & Associates

Barristers & Solicitors

208-255 Duncan Mill Rd.

North York, Ontario

M3B 3H9