Date: 20000728
Docket: IMM-2567-99
BETWEEN:
HARDEV SINGH DHARNI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Mr. Hardev Singh Dharni ("the Applicant") applied for permanent residence in Canada. His application was refused and he brings this application for judicial review, seeking to have the decision set aside and the matter remitted for a redetermination. The issue is whether the visa officer erred in law in making his decision and specifically whether the fact that the decision was made by a visa officer, other than the visa officer who had interviewed the Applicant, constitutes a breach of procedural fairness.
[2] Mr. Dharni was assessed in several occupations. He was assessed as an Electrical Engineering Technician under both the National Occupational Classification ("NOC") and General Occupations List ("GOL"). He was found not to be qualified in these occupations. He did not achieve the seventy units required.
[3] He was also considered for the occupations of Electrical Wiring Inspector, Cable Tester, Meter Tester and Tester Control Panel. However, since he did not have at least one year"s experience in these occupations, he could not be approved as an immigrant in these occupations: see Immigration Regulations 1978 , section 8(1).
[4] The answer to the arguments concerning the adequacy of the assessment of the Applicant"s experience in the assessed occupation lies in the standard of review applicable to the decision of a visa officer. The decision of a visa officer is a discretionary one. As long as it has been made in good faith and with regard to the relevant matters, including the factors set out in the Immigration Regulations , the Court will not intervene in the decision.
[5] I see nothing in the Certified Tribunal Record to support the argument that the visa officer committed any errors of law in assessing Mr. Dharni"s experience in the occupations noted above.
[6] The Applicant challenges the fact that the visa officer who issued the refusal letter was not the visa officer who interviewed him.
[7] The refusal letter sent to Mr. Dharni was signed by Mr. David MacDonald, the visa officer who reviewed his file after the interview had been conducted by another visa officer, Ms. Puri. The refusal letter erroneously said that Mr. MacDonald interviewed Mr. Dharni. Mr. Dharni never met with Mr. MacDonald. Mr. MacDonald reviewed the file and the CAIPS Notes made by Ms. Puri. Mr. MacDonald then issued a refusal letter to Mr. Dharni, advising that his application was refused on the basis that he had not obtained sufficient units of assessment.
[8] The Applicant argues that a breach of procedural fairness results when a visa officer, who has not conducted a personal interview, sends out the refusal letter. The Applicant relies upon the decision of this Court in Braganza v. Minister of Citizenship and Immigration (1998), 146 F.T.R. 239 where Justice Muldoon said at p. 247:
| Thus, it appears that where an assessment is required of the person, rather than the person"s qualifications, the interviewing officer must also be the person to decide. That said, there does not appear to be an automatic requirement that the person signing the refusal letter must also be the interviewing officer. |
[9] In this case, the refusal letter was signed by someone who was not the interviewing officer. Mr. MacDonald assessed personal suitability but he had not interviewed the Applicant. This appears to be a breach of procedural fairness, but the matter does not end there.
[10] In the overall context of this application for judicial review, I must consider the utility of remitting this matter for reconsideration. Even if Mr. Dharni were to obtain the maximum available units for personal suitability, that is ten units, this does not change the fact that he received no units for experience. Failure to obtain even one unit under the category of experience is fatal to an application for permanent residence.
[11] In these circumstances, the application will be dismissed.
[12] The application for judicial review is dismissed.
[13] Counsel shall have seven days from receipt of these reasons to submit a question for certification.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
July 28, 2000
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