Date: 20080502
Docket: IMM-2929-07
Citation: 2008 FC 545
Ottawa, Ontario, May 2, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
SHAILESH
DAHYABHAI PATEL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of the decision of
Immigration Officer R. Wiseman, (the Officer) dated June 21, 2007, refusing the
applicant’s
application for permanent residence in Canada under the skilled workers class,
on the grounds that the applicant did not obtain the minimum points required
under either the Immigration Regulations, 1978, SOR/78-172, or under the
Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations).
[2]
The
application for judicial review shall be allowed for the following reasons.
[3]
The
applicant is a citizen of India. He was born on March 3, 1954. He made an
application for permanent residence in Canada under the skilled
worker class in July 2001. The applicant applied to be assessed in the category
of Investment Analyst NOC – 1112. His application was also assessed based upon
the occupation of Investment Dealer NOC – 1113.
[4]
The
record demonstrates that the applicant worked as a Stock Dealer between
February 1994 and February 1997 for Pravin Ratilal Share and Stock Brokers, and
subsequently became employed as an Investment Advisor in April 1997 with Amishree
Stock Broking Pvt. Ltd. The applicant obtained a Bachelor of Commerce degree in
Advanced Accounting and Auditing from C.U. Shah Commerce College in 1975.
Prior to 1994, he had worked as an accountant for approximately 20 years.
[5]
The
applicant described the following duties he had at Amishree as an Investment
Advisor: reviewing investment information, advising clients on how and where to
invest, collecting investment information about companies, stocks and bonds,
reading daily stock and bond reports, trading volumes, financial periodicals,
securities manuals and other publications, monitoring funds, stocks and bonds,
providing investment recommendations, verifying commissions, charges and guarantees,
making payments for securities, maintaining account records, and watching
market trends of foreign and emerging markets.
[6]
The
Officer refused the applicant’s application for permanent residence as a member
of the skilled worker class. She assessed his claim under both the Immigration
Regulations, 1978, and the current Regulations.
[7]
In
her assessment under the Immigration Regulations, 1978, the Officer applied
the criteria pertaining to immigrants other than members of the family class,
Convention refugees seeking settlement, provincial nominees, and applicants
intending to reside in the Province of Quebec. Pursuant
to paragraph 8(1)(a) of the Immigration Regulations, 1978, the criteria
used for assessment of the applicant's ability to become economically
established in Canada were education, the education and training factor, experience,
the occupational factor, arranged employment or designated occupation, the
demographic factor, age, knowledge of the English and French languages, and
personal suitability.
[8]
Following
these criteria, the Officer awarded the applicant 49 units under NOC Code
1113.1 (Investment Dealer), and 55 units under NOC Code 1112 (Investment
Analyst), both of which fell short of the 65 units required. The Officer
further noted that the applicant must have received at least one unit for the
Occupational Factor, unless he had arranged employment in Canada. The
applicant did not have arranged employment, nor did he receive any units under
the occupational factor, having failed to satisfy the Officer that he had
performed a substantial number of the main duties of an Investment Analyst –
NOC 1112, including the essential ones. The Officer attributed no units under
the Occupational Factor as an Investment Dealer – NOC 1113.1, because there was
no occupational demand for the position.
[9]
In
her assessment under the current Regulations, the Officer assessed the
applicant under the federal skilled worker class on the basis of the criteria
set out in subsection 76(1) of the Regulations, in order to determine whether
the applicant could become economically established in Canada. The criteria
assessed are age, education, proficiency in the official languages of Canada, experience,
arranged employment and adaptability.
[10]
The
Officer awarded the applicant 45 points for the occupation of Investment
Analyst – NOC 1112, and 66 points for the occupation of Investment Dealer – NOC
1113. She noted that the applicant did not obtain the 67 points required for a
permanent resident visa, and was therefore not satisfied that he would become
economically established in Canada.
[11]
The
Officer concluded her letter by stating that she was not satisfied that the
applicant met the requirements of the Act and Regulations, and refused
the application.
[12]
The
letter is supported by Computer Assisted Immigration Processing System (CAIPS)
notes. On March 16, 2005 an important note was entered into the system
stating the following:
Will attempt to verify PI s most recent
employer reference. If the reference appears genuine will give benefit of the
doubt and give full points for experience as Investment Analyst, 1112.0. This
would cause PI to score 66 on paper-screen. I would then presume that PI would
earn a least an average for Pers. Sui., of 5. This would produce a selection
score of 71 so I could then waive int.
[13]
The
Officer writes a letter dated March 17, 2005 to the applicant (procedural
fairness letter re: apparent false reference) and receives a reply from him
(April 28, 2005) that provides full details of his employment. Following the
receipt of this letter, the Officer decides to interview the applicant.
[14]
In
the course of his application, the applicant has provided seven reference
letters that set out the duties that he had performed over the last 27 years in
his occupation in various investment and accounting firms.
[15]
The
Court does not have the benefit of an affidavit signed by the Officer and is
not in a position to know if the reference letters were rejected or accepted by
the Officer.
[16]
In
view of the March 16, 2005 note, the Court has no other alternative but to
remit the matter to a different Visa Officer for redetermination.
[17]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review is allowed. The matter is remitted to a different visa
officer for redetermination. No question is certified.
“Michel
Beaudry”
Email this Content