Date: 20030205
Docket: IMM-3569-01
Neutral citation: 2003 FCT 123
OTTAWA, ONTARIO, THIS 5th DAY OF FEBRUARY, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
MOHINDER KUMAR SACHDEVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
-
- Mr. Mohinder Kumar Sachdeva (the "Applicant") seeks judicial review of the decision of Visa Officer Sarah Trillo (the "Visa Officer"). In her decision, dated June 11, 2001, the Visa Officer determined that the Applicant lacked experience in his intended occupation of purchasing agent, National Occupation Classification ("NOC") 1225.
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[2] The Applicant is a citizen of India. At the time of his application, he was employed as a purchasing agent for Kavita Textiles, LLC, operating out of New Jersey. He described his intended occupation in Canada as a retail and wholesale buyer/purchasing agent.
[3] In support of his application for permanent residence, the Applicant provided two reference letters from his present and former employer. Upon a pre-screening of his application, a visa officer with the initials "MLH" noted on June 27, 2000 that these letters appear to have been signed by the same party, on the same date.
[4] The Applicant attended the interview on May 22, 2001, where he was questioned by the Visa Officer concerning his previous and present employment. The Visa Officer also questioned him about reference letters, including those submitted with his application. She dismissed as not credible three of the letters which were submitted by his application and advised the Applicant that she accepted only the reference letter that addressed his experience as an accountant.
[5] The Visa Officer recorded in the Computer Assisted Input Program System ("CAIPS") a note that the reference letters were notarized the same day and further, that the two letters from India and one from his American employer were signed and notarized the same day. The Visa Officer advised the Applicant that she could not accept his work experience as a purchasing agent because the reference letters, in her view, were not acceptable.
[6] The Visa Officer, in her refusal letter, said that she was refusing the Applicant's application because he lacked experience as a purchasing agent, his intended occupation. She awarded the following units of assessment:
Age 10
Occupational factor 00
Education and Training 15
Experience 00
Arranged employment or designated occupation 00
Demographic factor 08
Education 16
Knowledge of English 06
Knowledge of French 00
Personal suitability 02
TOTAL 57
[7] The Applicant argues that the Visa Officer committed reviewable errors in the manner in which she assessed his experience, his language abilities and his personal suitability. He says that she ignored the evidence before her, including the reference letters and the short paragraph he wrote during the interview concerning the components of his present employment.
[8] Generally, the Respondent takes the position that the Visa Officer properly assessed the Applicant's application. Insofar as she concluded that the Applicant lacked the necessary experience in his intended occupation, that finding is entitled to considerable deference. The Respondent here relies on Farooqui v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 306.
[9] The Respondent further submits that the findings of the Visa Officer concerning the Applicant's language skills and personal suitability were clearly within the statutory discretion afforded her. In the absence of evidence that she considered irrelevant material or ignored relevant evidence, her findings should be undisturbed. Here, the Respondent relies on Liang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1343 (T.D.)(QL) and Gill v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 127 (F.C.T.D.).
[10] In my opinion, the Visa Officer erred in her dismissal of the reference letters provided by the Applicant on the basis that they were all dated the same day. A cursory examination of these reference letters, as they appear in the tribunal record, indicates that they were all stamped and signed by a Notary Public in New York City on the same day, that is February 27, 2000. It was easily open to the Visa Officer to make inquiries of the Applicant about the significance of this date, and she apparently did not do so.
[11] However, an error in this regard is not sufficient to justify judicial intervention with the decision under review. According to the Federal Court of Appeal in Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48 (F.C.A.), at paragraph 13:
When on an application for judicial review of a visa officer's refusal to issue a visa
the Court concludes that the officer committed a reviewable error and awarded the
applicant too few units of assessment, the Court may in its discretion refuse to set
the decision aside if, in its view, the error could have made no difference to the
officer's decision because, even after the error was corrected, the applicant still had
insufficient points to be issued a visa.
[12] The findings of the Visa Officer concerning the Applicant's language ability and personal suitability are reasonably supported by the evidence, and there is no basis for judicial intervention with these findings.
[13] In the result, the application for judicial review is dismissed. There is no question for certification arising.
ORDER
The application for judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3569-01
STYLE OF CAUSE: MOHINDER KUMAR SACHDEVA v. MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: JANUARY 29, 2003
REASONS FOR ORDER AND
ORDER: HONOURABLE MADAM JUSTICE HENEGHAN
DATED: FEBRUARY 5, 2003
APPEARANCES:
Ramesh Sangha FOR APPLICANT
Stephen Jarvis FOR RESPONDENT
SOLICITORS OF RECORD:
Ramesh Sangha FOR APPLICANT
Barrister & Solicitor
7125 Goreway Drive
Suite 202
Mississauga, ON
L4T 2H5
Morris Rosenberg FOR RESPONDENT
DEPARTMENT OF JUSTICE
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