Date: 20030630
Docket: IMM-589-02
Citation: 2003 FCT 809
Ottawa, Ontario, this 30th day of June, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
KANWAL KISHORE CHAUHAN
AND
RASHMI CHAUHAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Kanwal Chauhan applied to become a permanent resident in Canada as a Chef or an Applied Chemical Technologist. His wife, Rashmi, also applied. She applied as an Accountant. Kanwal Chauhan's application was turned down because he did not produce sufficient evidence of job experience in either of the job categories he applied under. Rashmi's application was never processed.
[2] Kanwal Chauhan submits that the visa officer who assessed his application made serious errors. He requests that his application be re-assessed by a different visa officer. The Chauhans also argue that the visa officer erred in not assessing Rashmi's application.
I. Issues
[3] There are two issues in this case. The first is whether the visa officer made a serious error in her assessment of Kanwal Chauhan's application. The second is whether the officer erred in failing to assess Rashmi Chauhan's application.
A. The assessment of Kanwal Chauhan's application
[4] Mr. Chauhan disputes the visa officer's conclusion that he failed to show that he was qualified by training and experience as a Chef (National Occupational Classification 6241.3). The visa officer noted that he could not supply pay stubs or tax returns showing his employment history. Nor could Mr. Chauhan answer questions about his specific duties as a chef. The visa officer's notes of the interview disclose that he worked primarily in a fast-food establishment and was not involved in preparing meals for banquets, supervising cooks or kitchen staff, or planning menus. When questioned at the interview about his work experience, he simply said "You just have to believe me". Mr. Chauhan produced a letter from his employer (who was also his brother-in-law) attesting to the fact that he had worked as a cook in three restaurants. However, the visa officer felt that the letter, being from a relative, was self-serving.
[5] There was little evidence supporting Mr. Chauhan's qualifications in the other job category he applied under - Applied Chemical Technologist (NOC 2211.1). The visa officer's negative assessment was not seriously challenged before me.
[6] Having reviewed the record and the evidence before the visa officer, as well as the official description of the job category of "chef", I cannot conclude that a serious error was made in the assessment of Mr. Chauhan's application for permanent residence.
B. The failure to assess Mrs. Chauhan
[7] The Immigration Regulations, 1978 provide in s. 8(1) that a visa officer must assess the applicant or, at the option of the applicant, the applicant's spouse. The applicant must, however, specifically request that his or her spouse be assessed (Patel v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1176 (QL) (T.D.)). In this case, in letters to the Canadian consulate, counsel for the Chauhan's specifically requested that both applicants be assessed independently and as alternatives to each other. The requisite fees were duly paid. Only Mr. Chauhan was invited to an interview and only his application was assessed.
[8] For her part, the visa officer says she was aware of the request to have both spouses assessed. However, since only Mr. Chauhan attended the interview, she assessed him as the principal applicant. She says that it is her practice always to confirm that the person at the interview is the principal applicant but her notes do not indicate whether she did so in this case. Mr. Chauhan did not raise with her the issue of his wife's application.
[9] Counsel for the Respondent referred me to jurisprudence in which it was held that a visa officer does not have an obligation to assess both spouses - only one or the other - and that it is the applicant's responsibility to designate which spouse is to be assessed. Further, the visa officer does not have an obligation to inform the applicant of the choice. (Nanji v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 792 (QL) (T.D.); Mozumder v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No 327 (QL) (T.D.)). In the cases cited, however, only one spouse had actually applied. Patel, above, is closer to the facts of this case, in that both spouses had applied. Still, Justice Hugessen found there to be no duty on the visa officer to assess the spouse's application as the officer had not been specifically requested to do so. Further, he held that there was no remedy available to the spouse in any case, given that she was not a party to the proceedings.
[10] Justice Simpson came to a similar conclusion in Behnam v. Canada (Minister of Citizenship and Immigration), 2003 FCT 630; [2003] F.C.J. No. 798, but there was clearly only one principal applicant in that case.
[11] On the facts before me, I conclude that the visa officer erred in not assessing Rashmi Chauhan's application, given the specific request made by the Chauhans to have their applications considered separately and alternatively. While Mr. Chauhan did not raise the matter at the interview, the request had twice been made in writing and the visa officer was aware of it.
[12] Unlike in Patel, Mrs. Chauhan is a party to these proceedings. Accordingly, the appropriate remedy is a direction that her application be assessed by a visa officer according to law. Counsel for the Chauhans requested that her application be assessed under the former Immigration Act, R.S.C. 1985, c. I-2, and the Immigration Regulations, 1978. However, the transitional rules under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 190 and the Regulations, s. 350, require that re-determinations be conducted under the current Act.
JUDGMENT
IT IS HEREBY ADUDGED that:
1. The application for judicial review is allowed in part;
2. Rashmi Chauhan's application for permanent residence shall be assessed according to law.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-589-02
STYLE OF CAUSE: KANWAL KISHORE CHAUHAN and RASHMI CHAUHAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, JUNE 25, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: MONDAY, JUNE 30, 2003
APPEARANCES BY:
Mr. Jaswant Singh Mangat FOR THE APPLICANT
Mr. Martin Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Jaswant Singh Mangat
Barrister & Solicitor
Suite 202-7420 Airport Road
Mississauga, Ontario L4T 4E5 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
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