Date: 20080414
Docket: IMM-1206-07
Citation: 2008 FC 473
Ottawa, Ontario, April 14,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CHANDRAKANT
GORDHANDAS HINSU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This judicial review application is in respect of a decision
rendered by a Visa Officer (Officer) refusing the Applicant’s application for
permanent resident visa on the grounds that he did not qualify under the specified
national occupation classifications of financial manager, financial auditor and
accountant, personnel and recruitment officer, or specialist in human
resources. The
Applicant relies solely on the issues raised in his Supplemental Memorandum and
therefore the only issue before the Court is the adequacy of the assessment
made by the Officer.
II. BACKGROUND
[2]
The
Applicant is a citizen of both Kenya and India. He filed
his application for permanent residence in Rome and the file was subsequently
transferred to the office in Nairobi, Kenya.
[3]
The
Applicant was interviewed in May 2004 by the Officer but no decision was made
at the end of that interview. Subsequent to the interview, the Applicant’s
immigration consultant filed further submissions with the Officer stressing the
factor of personal suitability.
[4]
On
November 23, 2006, the Applicant was informed of his failure to meet the
requirements with respect to the job classifications for immigration to Canada.
[5]
During
the interview the Officer not only asked the Applicant to prepare certain
documents such as a basic balance sheet, but also inquired into the Applicant’s
knowledge of audits within the firm he worked at, the income tax structure in Kenya and details
of the financial systems that he allegedly developed for the company over the
past 18 years. In all respects, the Applicant was found to be deficient in his
responses. It was for this reason that the Officer denied the application.
III. ANALYSIS
[6]
The
specific provision under which the Officer reached his conclusion was paragraph
75(2)(c) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations), which requires that “during the period of
employment [a visa applicant] performed a substantial number of the main duties
of the occupation as set out in the occupational descriptions of the National
Occupational Classification, including all of the essential duties”. The
principal factual issues before this Court concerned the interview itself, and
whether or not the Officer properly inquired into the duties that were
performed by the Applicant and whether they met this requirement.
[7]
With
respect to the standard of review, it is now clear under Dunsmuir v. New
Brunswick,
2008 SCC 9, that the only standards to be considered are that of correctness
and reasonableness. As the determination of whether a person is eligible under
the economic class provisions of the Regulations is a question of mixed fact
and law, the appropriate standard of review is reasonableness.
[8]
In
regard to the reasonableness of the Officer’s decision, the Court is mindful
that the Officer was present at the interview, that the Officer has detailed
and specific knowledge in respect of the National Occupational Classification
and that the Officer is exercising a largely discretionary power.
[9]
The
Applicant’s argument is that the CAIPS notes show that the Officer did not
perform a proper assessment of the Applicant’s visa application and that he
failed to consider evidence or otherwise produced an inadequate record of the reasons
for his decision. It was the Applicant’s contention that the Officer’s
questions regarding personnel management only covered one of the several duties
listed and that the Officer essentially did not perform a thorough review of
the occupational requirements.
[10]
As
this matter turns upon what occurred during the course of the interview, the
Court must consider the specific evidence. The affidavit of the Officer
outlines the several areas canvassed by her during the interview including
questions regarding other substantive duties performed. On the other hand, the
Applicant’s affidavit is silent as to what was said. No rebuttal evidence has
been filed in respect of the Officer’s affidavit nor was any cross-examination
of the Officer conducted.
IV. CONCLUSION
[11]
In
the face of the evidentiary gap presented by the Applicant, the Court must
conclude that the better evidence is that of the Officer. That evidence
indicates a thorough review of all of the relevant issues in respect of the
various job classifications. Therefore, I must conclude that the Applicant has
not made out a case for judicial intervention and this application for judicial
review will be dismissed.
[12]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application
for judicial review will be dismissed.
“Michael
L. Phelan”
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