Date: 20081006
Docket: IMM-2969-07
Citation: 2008 FC 1124
Ottawa, Ontario, October 6, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MINALBEN BHATT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] A visa officer
rejected Ms. Bhatt’s application for permanent residence as a member of the
federal skilled workers class. This application for judicial review of that
decision is dismissed because the officer’s assessment of Ms. Bhatt’s work
experience and occupational factor is not unreasonable, and there is no
appearance of bias or unfairness.
[2] Ms.
Bhatt’s application for permanent residence was assessed under the Immigration
Act, R.S.C. 1985, c. I-2 (former Act) and its associated regulations, the Immigration
Regulations, 1978, SOR/78-172 (former Regulations). It was also
assessed under the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (Act) and its associated regulations, the Immigration and Refugee
Protection Regulations, SOR/2002-227 (Regulations).
[3] When
assessing Ms. Bhatt’s application under the former Act and former Regulations,
the officer awarded Ms. Bhatt zero units of assessment in the category of work
experience. This was fatal to her application because subsection 11(1) of the
former Regulations required an applicant to receive at least one unit of
assessment for experience (unless the applicant had arranged employment, which
Ms. Bhatt did not).
[4] When
assessing the application under the current legislation, the visa officer found
that Ms. Bhatt had failed to satisfy him that she had performed a substantial
number of the main duties of her claimed occupation of paralegal (NOC 4211),
including the essential duties. This was fatal to her application as a result
of the application of subsections 75(2) and (3) of the Regulations. Section 75
of the Regulations is set out in the appendix to these reasons.
[5] Ms.
Bhatt asserts that both assessments are unreasonable because the officer
ignored documents she provided that established her work experience. Ms. Bhatt
had provided letters from two law offices where she says she has worked, and
which set out the duties she says she performed over the period from June 1999
to May 2007.
[6] Ms.
Bhatt was required to attend an interview in order to verify her employment and
experience because the letters she provided from her employers did not appear
to be reliable. The Computer Assisted Immigration Processing System (CAIPS)
notes record the following in respect of the interview:
PA states that she is responsible
for maintaining drafts and dealing with clients. I asked PA to explain her
duties in detail. PA has not responded to my question. Do you understand my
question? Yes. Do you need an interpreter? No. What do you do at work? No
answer. Please explain your job duties to me? No answer. I explained to PA
that if she did not answer my questions, I was going to have to refuse her
application. PA states that she understands. Please explain your job duties
to me? No answer. Please tell me what you do at work? No answer. I stopped
the interview and requested an interpreter as I am not sure that PA understands
my questions. Interview resumed in Hindi. PA states that she understands the
interpreter.
Please explain your job duties?
I work 10-5 and I joined in 1999. I’m working for Mr. Shah since 2006 as my
previous employer went to Canada. I give legal advice to my clients. I work
in civil matters pertaining to different types of contracts. I noticed that PA
had a copy of the NOC 4211 (legal assistant) and appeared to be reading from
it. I asked PA for the NOC document. What type of contracts do you prepare?
No answer. PA now states that she provides advice regarding property
contracts. What type of advice do you provide? Pause. I work with my seniors
learning and working. Why are you having so much difficulty answering
questions about your work? No answer. PA then states that she is nervous.
Why? No answer.
[7] The
visa officer filed an affidavit in this proceeding in which he swore that the
CAIPS notes accurately reflect the questions posed to Ms. Bhatt and her
answers. The officer was not cross-examined on that affidavit. I accept,
therefore, that the CAIPS notes are evidence of the facts to which they refer.
See: Tajgardoon v. Canada (Minister of Citizenship and
Immigration), [2001] 1 F.C. 591 (T.D.). To the extent the visa officer’s
evidence conflicts with Ms. Bhatt’s, I prefer the evidence of the visa officer
because it is consistent with, and confirmed by, the CAIPS notes.
[8] The
visa officer was not bound to accept the truth of the content of the letters
provided by Ms. Bhatt. The deficiency in the form of the letter identified by
the officer, together with Ms. Bhatt’s inability to answer questions
relating to her work experience and the fact that during her interview she
appeared to be reading from the NOC statement of employment duties for a
paralegal, fully support the officer’s conclusion.
[9] I
am satisfied that the decision is reviewable on the standard of
reasonableness. See: Choi v. Canada (Minister of Citizenship
and Immigration, [2008] F.C.J. No. 734 at paragraph 12. The officer’s
reasons are justified, transparent and intelligible. The decision falls within
the range of acceptable outcomes that are defensible in fact and law. The
decision is, therefore, reasonable.
[10] There
is no appearance of unfairness or bias.
[11] The
application for judicial review will be dismissed.
[12] Counsel
posed no question for certification, and I agree that no question arises on
this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor R. Dawson”
APPENDIX
Section 75 of the Regulations
reads as follows:
|
75(1) For the purposes of subsection 12(2) of the Act, the
federal skilled worker class is hereby prescribed as a class of persons who
are skilled workers and who may become permanent residents on the basis of
their ability to become economically established in Canada and who intend to
reside in a province other than the Province of Quebec.
(2) A foreign national is a skilled worker if
(a) within the 10 years preceding the date of their
application for a permanent resident visa, they have at least one year of
continuous full-time employment experience, as described in subsection 80(7),
or the equivalent in continuous part-time employment in one or more
occupations, other than a restricted occupation, that are listed in Skill
Type 0 Management Occupations or Skill Level A or B of the National
Occupational Classification matrix;
(b) during that period of employment they performed the
actions described in the lead statement for the occupation as set out in the
occupational descriptions of the National Occupational Classification; and
(c) during that period of employment they 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.
(3) If the foreign national fails to meet the requirements
of subsection (2), the application for a permanent resident visa shall be
refused and no further assessment is required.
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75(1) Pour l’application du paragraphe
12(2) de la Loi, la catégorie des travailleurs qualifiés (fédéral) est une
catégorie réglementaire de personnes qui peuvent devenir résidents permanents
du fait de leur capacité à réussir leur établissement économique au Canada,
qui sont des travailleurs qualifiés et qui cherchent à s’établir dans une
province autre que le Québec.
(2) Est un travailleur qualifié l’étranger qui satisfait
aux exigences suivantes :
a) il a accumulé au moins une année continue d’expérience
de travail à temps plein au sens du paragraphe 80(7), ou l’équivalent s’il
travaille à temps partiel de façon continue, au cours des dix années qui ont
précédé la date de présentation de la demande de visa de résident permanent,
dans au moins une des professions appartenant aux genre de compétence 0
Gestion ou niveaux de compétences A ou B de la matrice de la Classification
nationale des professions — exception faite des professions d’accès limité;
b) pendant cette période d’emploi, il a accompli
l’ensemble des tâches figurant dans l’énoncé principal établi pour la
profession dans les descriptions des professions de cette classification;
c) pendant cette période d’emploi, il a exercé une partie
appréciable des fonctions principales de la profession figurant dans les
descriptions des professions de cette classification, notamment toutes les
fonctions essentielles.
(3) Si l’étranger ne satisfait pas aux
exigences prévues au paragraphe (2), l’agent met fin à l’examen de la demande
de visa de résident permanent et la refuse.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2969-07
STYLE
OF CAUSE: MINALBEN
BHATT, Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: SEPTEMBER 30, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: OCTOBER 6, 2008
APPEARANCES:
STEPHEN L. WINCHIE FOR
THE APPLICANT
ROBERT BAFARO FOR
THE RESPONDENT
SOLICITORS OF RECORD:
STEPHEN L. WINCHIE FOR
THE APPLICANT
BARRISTER &
SOLICITOR
MISSISSAUGA, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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