Date: 20070621
Docket: IMM-4303-06
Citation: 2007 FC 666
Ottawa, Ontario, June 21,
2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
PATEL DEVENDRAKUMAR DAHYALAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Patel Dahyalal applied to become a permanent resident of Canada as a skilled
worker, in particular, as a veterinarian. A visa officer at the Canadian
Embassy in New
Delhi
evaluated Mr. Dahyalal’s application and, after interviewing him, found his
experience to be inadequate. Mr. Dahyalal argues that the officer erred in her
assessment and asks me to order a re-assessment by a different officer. I agree
that the officer erred and must, therefore, grant this application for judicial
review.
I. Issue
[2]
Did
the officer apply the wrong test?
II. Analysis
[3]
According
to her notes, the officer concluded that Mr. Dahyalal had not demonstrated that
he had performed “most of the main duties” described in the National Occupation
Classification for a veterinarian (NOC 3114). However, under the Immigration
and Refugee Protection Regulations, SOR/2002-227, an applicant need only
show that he or she performed a “substantial number of the main duties” (s.
75(2)(c)) (relevant enactments are set out in an Annex). A similar test
was set out in the Immigration Regulations, 1978, SOR/78-172, Schedule
I, item 4(1)(b) under which Mr. Dahyalal’s application was also
evaluated.
[4]
Further,
the actual NOC description states that veterinarians perform “some or all” of
the main duties. It is an error for a visa officer to require an applicant to
have performed a majority of the main duties when the relevant NOC description
merely demands that they have experience in “some or all” of them: A’bed
v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1027; Noman v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1169.
[5]
In
my view, the officer imposed too high a standard. Therefore, I must allow this
application for judicial review and order a re-assessment of Mr. Dahyalal’s
application by a different officer. Neither party proposed a question of
general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT IS THAT:
1. The application for judicial review is allowed. The
matter is referred back to a different officer for reconsideration;
2. No questions of general importance are
stated.
“James
W. O’Reilly”
Annex
|
Immigration
and Refugee Protection Regulations, SOR/2002-227
Skilled workers
75. (2) A foreign
national is a skilled worker if
…
(c) during
that period of employment they performed a substantial number of the main
duties of the occupation as set out in the occupational descriptions of the National
Occupational Classification, including all of the essential duties.
Immigration Regulations,
1978,
SOR/78-172, Schedule I
Occupational factor
4. (1)
Units of assessment shall be awarded on the basis of employment opportunities
in Canada in the occupation
…
(b) in which
the applicant has performed a substantial number of the main duties as set
out in the National Occupational Classification, including the essential ones;
and
|
Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
Qualité
75. (2) Est
un travailleur qualifié l’étranger qui satisfait aux exigences
suivantes :
[…]
c) pendant
cette période d’emploi, il a exercé une partie appréciable des fonctions
principales de la profession figurant dans les descriptions des professions
de cette classification, notamment toutes les fonctions essentielles
Règlement sur l'immigration de 1978, DORS/78-172, Annexe I
Facteur professionnel
4. (1) Des
points d'appréciation sont attribués en fonction des possibilités d'emploi au
Canada dans la profession :
[…]
b) pour laquelle le requérant a exercé un nombre substantiel des
fonctions principales établies dans la Classification nationale des
professions, don't les fonctions essentielles;
|
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4303-06
STYLE OF CAUSE: PATEL
DEVENDRAKUMAR DAHYALAL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: TORONTO, ONTARIO
DATE OF
HEARING: June
14, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: O’REILLY J.
DATED: June 21,
2007
APPEARANCES:
|
Max Chaudhary
|
FOR THE APPLICANT
|
|
Anshumala
Juyal
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
M. MAX
CHAUDHARY
North York, On.
|
FOR THE APPLICANT
|
|
JOHN H. SIMS,
Q.C.
Deputy
Attorney General of Canada
Toronto, ON
|
FOR THE RESPONDENT
|
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