Date: 20020128
Docket: IMM-743-00
Neutral citation: 2002 FCT 102
Toronto, Ontario, Monday, the 28th day of January, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
HARDEV SINGH and
BALBIR SINGH BHOGAL
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the visa officer dated January 17, 2000 wherein the applicant, Hardev Singh's application for permanent residence was refused. The applicant was rejected for failing to obtain at least 70 units of assessment required in order to immigrate to Canada.
[2] The applicants seek an order of certiorari to quash the decision of the visa officer, and an order of mandamus requiring the respondent's officials to continue with the processing of the permanent residence application of the applicant, Hardev Singh, in accordance with law.
Background Facts
[3] The applicant, Mr. Singh lives in India and applied for a permanent residence visa at the Canadian High Commission in New Delhi, India.
[4] The applicant, Mr. Singh applied for permanent residence in Canada pursuant to an approved family business job offer, which was offered by his uncle, the applicant, Mr. Bhogal. The family business job offer required that the applicant, Mr. Singh act as a shift shop supervisor at his uncle's company, where he would require experience as a machinist with supervisory skills.
[5] As set out in the letter of January 17, 2000, the visa officer assessed the applicant for the occupation of Tool and Die Maker (NOC 7232). A breakdown of the units of assessment and a brief explanation were set out in the letter as follows:
AGE (27) 10
OCCUPATIONAL FACTOR 05
ETF/S.V.P. 15
EXPERIENCE 06
A.R.E. 00
DEMOGRAPHIC FACTOR 08
EDUCATION 10
ENGLISH 00
FRENCH 00
BONUS 05
SUITABILITY 01
TOTAL 60
Pursuant to section 9(1)(b)(i) of the Immigration Regulations, 1978, you have failed to obtain at least 70 units of assessment, the minimum number required to comply with the selection criteria for immigration to Canada. You, therefore, come within the inadmissible class of persons described in section 19(2)(d) of the Immigration Act and your application has been refused.
Since you were not able to communicate in the English language, an interpreter was used for the entire interview. In addition you could not respond to any questions in English. Therefore, no points were awarded.
[6] The applicant was awarded 0 out of a possible 10 units of assessment for the family business job offer. The applicant's application was rejected for failure to obtain at least 70 units of assessment as required for immigration to Canada.
Applicants' Submissions
[7] The applicant submits that the visa officer erred in law in interpreting the selection criteria set out in Schedule I of the Immigration Regulations, 1978.
[8] The applicant submits that the visa officer did not assess the applicant fairly under the guidelines. The applicant contends that this fairness is required where there is a special policy meant to facilitate the admission of particular classes of people, such as where there is a family business job offer.
[9] The applicant submits that the visa officer misinterpreted and ignored evidence relating to the applicant's supervisory skills despite having been presented with a number of employment letters which confirmed details of supervisory experience. As a result of misinterpreting the requirements of the family business job offer, the applicant submits that the visa officer erred in law by failing to award the applicant the 10 points for arranged employment.
[10] The applicant submits that the visa officer failed to properly assess the applicant in respect of the occupation he was seeking to fill in Canada. The applicant contends that there is no record of the visa officer assessing the applicant as a machinist in the CAIPS notes, in the decision letter or in the visa officer's initial affidavit.
[11] The applicant submits that the visa officer took into account irrelevant considerations such as a concern that the applicant had no settlement funds, which was irrelevant because he was coming to work with his uncle and live with his family.
[12] The applicant submits that the decision of the visa officer was unreasonable, and if reassessed under the relevant NOC categories, the applicant might well have the 70 points required for approval of the application.
Respondent's Submissions
[13] The respondent submits that the decision of the visa officer was reasonable. The respondent submits that the applicant did not mention any of the usual supervision duties at the interview, and so the visa officer was justified in concluding that the applicant did not have relevant supervisory experience.
[14] The respondent submits that there was no evidence before the visa officer that the applicant, Mr. Bhogal does not have an immediate concern about the applicant Mr. Singh's ability to manage the night shift with limited English because many of the workers in the plant speak Punjabi.
[15] The respondent concedes that the applicant was assessed as a supervisor of the mechanic trades, which is the wrong occupational category as it should have been machinist not mechanics. The respondent submits that the main duties of a supervisor are exactly the same in both job categories whether they be supervisors of machinists or supervisors of mechanics. The respondent submits that notwithstanding the error, the visa officer reasonably assessed the applicant and found that he did not have either of the two qualities required by the offer of employment in Canada, namely the English language and the supervision experience or ability.
[16] The respondent submits that the visa officer assessed the applicant as a machinist and explained to him that he was not satisfied that he met the requirements of a supervisor.
[17] The respondent submits that the visa officer did not take into account irrelevant considerations, and that it was entirely open to the visa officer to consider the lack of funds of the applicant. The respondent submits that the whole concept of personal suitability goes to the applicant's ability to establish himself in Canada, and the applicant indicated a complete dependence on his uncle in Canada.
[18] The respondent submits that the decision of the visa officer was reasonable.
Law
[19] Subparagraph 9(1)(b)(i) of the Immigration Regulations, 1978, states:
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9. (1) Subject to subsection (1.01) and section 11, where an immigrant, other than a member of the family class, an assisted relative, or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
. . .
(b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8,
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment, . . .
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9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si:
. . .
b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8:
(i) dans le cas d'un immigrant, autre qu'un entrepreneur, un investisseur, ou un candidat d'une province, il obtient au moins 70 points d'appréciation, . . .
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[20] Paragraph 19(2)(d) of the Act states:
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19.(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
. . .
(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
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19.(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_:
. . .
d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.
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[21] Issue
Did the visa officer make a reviewable error with respect to the applicant's application?
Analysis and Decision
[22] The applicant's uncle, who is the proposer of the job offer, offered the applicant the position of shift supervisor for the midnight shift at his machine shop. On the applicant's application for permanent residence in Canada, he stated his intended occupation to be a shift supervisor. At the interview with the visa officer, the visa officer concluded that the applicant's experience was as a tool and die maker and not a supervisory employee. Accordingly, the visa officer changed the intended occupation to that of tool and die maker. The applicant initialled the change. The visa officer, however, in his affidavit of June 6, 2000 states that he assessed the applicant as a machinist. The summary contained in the visa officer's refusal letter sates that the applicant was assessed as a tool and die maker and under "Contractors and Supervisors, Mechanical Trade".
[23] It would appear that the applicant should have been assessed under "Supervisors, Machinists and Related Occupations (7211)" as a supervisor in this category supervises "Machinists and Machining and Tooling Inspectors (7231) and Tool and Die Makers (7232)". There is no mention of the applicant being assessed as a machinist in the CAIPS notes. It would be expected that there should have been at least a notation made in the CAIPS notes that such an assessment was made. From the CAIPS notes and the letters of recommendation, it would appear that the applicant does have some experience as a machinist under NOC 7231 or as a supervisor under NOC 7211. If this was done with respect to NOC 7211, there is no reference to such an assessment in the materials. There is a reference to an assessment as a machinist in the visa officer's second affidavit but no reference to the distribution of the units of assessment, other than to say that he received zero units of assessment for experience as a machinist. It would appear that the applicant had some experience as a machinist and should have received some units of assessment - how many is a question to be answered by a visa officer and is not to be decided by this Court in the context of judicial review. I am of the opinion that the visa officer made reviewable errors by not assessing the applicant in NOC 7211 and by giving the applicant zero units of assessment as a machinist (NOC 7231). As a result, the decision of the visa officer must be set aside as it is not reasonable.
[24] Neither party wished to submit a serious question of general importance for consideration.
ORDER
1. IT IS ORDERED that the decision of the visa officer is set aside and the application shall be referred to a different visa officer for reconsideration.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
January 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-743-00
STYLE OF CAUSE: HARDEV SINGH and BALBIR SINGH BHOGAL
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, OCTOBER 30, 2001
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: MONDAY, JANUARY 28, 2002
APPEARANCES:
Ms. Barbara Jackman
For the Applicants
Mr. Matthew Oomen
For the Respondent
SOLICITORS OF RECORD:
JACKMAN, WALDMAN & ASSOCIATES
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicants
Department of Justice
Toronto Regional Office
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020128
Docket: IMM-743-00
BETWEEN:
HARDEV SINGH and
BALBIR SINGH BHOGAL
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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