Date: 20040622
Docket: IMM-823-03
Citation: 2004 FC 891
OTTAWA, Ontario this 22nd day of June 2004
PRESENT: THE HONOURABLE MR. JUSTICE PHELAN
BETWEEN:
AZMAT ULLAH KHAWAR MUGHAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
NATURE OF PROCEEDINGS
[1] This is a judicial review from a decision of a Visa Officer (the officer) in which the Officer denied an application for a permanent resident visa on the grounds that the applicant did not secure sufficient points under the National Occupation Classification (NOC) for a civil engineer.
[2] While many issues were raised including whether the officer had an obligation to extract facts from the applicant, this matter can be determined on the basis of the legal criterion utilized by the officer.
BACKGROUND
[3] The applicant was a qualified engineer in India. In support of his visa application he filed letters from previous employers attesting to the type of work he performed.
[4] The NOC, which is binding on a visa officer, outlines the qualifications for the civil engineer category. It requires that civil engineers perform "some or all of the following duties". These duties range from conferring with clients to acting as a project or site supervisor.
[5] The officer reviewed all the applicant's details and conducted the usual interview. Her conclusion was that she awarded the applicant 0 points for each of his occupational factor and his experience factor. As such, he had insufficient points to qualify for a visa.
[6] The officer found that the applicant had not satisfied her that he had "performed some of the main duties of your intended occupation".
[7] In the officer's affidavit filed in the judicial review proceedings, it was evidence that she had doubts as to whether the applicant had performed the duties he said he had.
[8] In the same affidavit in discussing the duties the applicant performed at his second job, the officer said "It was clear that i) he had not been the engineer with overall responsibility for a given contractor project, as outlined in the NOC open description for a civil engineer..."
ANALYSIS
[9] Reviewing the whole of the record and having regard for the manner in which the officer conducted herself it is difficult to find much to criticize. While the CAIPS notes are not a verbatim transcript they are sufficient to give an indication of how the officer proceeded.
[10] The one area of difficulty is the officer's conclusion that NOC outlined that civil engineers were to have overall responsibility for a given construction project. The NOC imposes no such requirement.
[11] While the balance of the record shows that the officer did inquire into the correct areas of duties and exercised her discretion in a balanced manner, it is unclear what role this view of a civil engineer's responsibilities had on the assessment of the applicant's experience and occupation.
[12] Under the circumstances to ensure that there is no question as to the proper legal criteria used or the fairness of the process, the application for judicial review will be granted.
ORDER
IT IS HEREBY ORDERED THAT:
a) the application for judicial review is granted;
b) the decision of the officer is quashed and the application is remitted to the respondent for determination by another officer.
(s) "Michael L. Phelan"
J.F.C.
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: IMM-823-03
STYLE OF CAUSE: AZMAT ULLAH KHAWAR MUGHAL v. M.C.I.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 29, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Phelan
DATED: June 22, 2004
APPEARANCES:
Mr. Yasir Nagvi FOR THE APPLICANT
Mr. Alex Kaufman FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Yasir Nagvi FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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