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Date: 20031126

Docket: IMM-3137-02

Citation: 2003 FC 1390

Toronto, Ontario, November 26th, 2003

Present:           The Honourable Madam Justice Heneghan                                      

BETWEEN:

                                                               SAMIR BHINGARDE

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Mr. Samir Bhingarde (the "Applicant") seeks judicial review of the decision of Visa Officer Nathalie Smolynec (the "Visa Officer"), dated June 20, 2002. In her decision, the Visa Officer refused the Applicant's application for permanent residence in Canada.


[2]                 The Applicant, a citizen of Tanzania, applied for permanent residence in Canada as a member of the Independent Applicant category and identified his intended occupation as a Financial Manager, National Occupation Classification ("NOC") 0111.0. The Visa Officer awarded the Applicant 63 units of assessment including three units for the occupational factor and zero units for experience. In the letter of refusal, the Visa Officer provided reasons for her assessment, in part, as follows:

Subsection R.11 (2) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants who have received zero units of assessment for the factor of experience. It has been determined that you do not have experience in the occupation in which you asked to be assessed.

[3]                 The Applicant's main argument in this application is that the Visa Officer breached the duty of procedural fairness by failing to provide adequate reasons for her decision. The Applicant argues that the refusal letter, even considered in conjunction with the handwritten notes kept by the Visa Officer at the interview, does not adequately show a reasoned basis for rejecting his application.

[4]                 The Respondent submits that the cumulative effect of the record does show a reasonable foundation for the negative decision. The Respondent further submits that the Visa Officer is deemed to have exercised her expertise in assessing the qualifications of the Applicant and that there is no basis for judicial intervention in her assessment.

[5]                 In my opinion, the paucity of the notes maintained by the Visa Officer and the lack of sufficient reasons in the refusal letter amount to a breach of procedural fairness in this case. The application for judicial review is allowed and the matter remitted to a different visa officer for redetermination. There is no question for certification arising.


                                                  ORDER

The application for judicial review is allowed and the matter remitted to a different visa officer for redetermination. There is no question for certification arising.

"E. Heneghan"

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                                                                                                           J.F.C.                             


                                           FEDERAL COURT

    Names of Counsel and Solicitors of Record

DOCKET:                                 IMM-3137-02

STYLE OF CAUSE: SAMIR BHINGARDE

Applicant

and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING:         TORONTO, ONTARIO

DATE OF HEARING:           NOVEMBER 25, 2003

REASONS FOR ORDER

AND ORDER BY:                  HENEGHAN, J.

DATED:                                  NOVEMBER 26, 2003           

APPEARANCES BY:            

Mr. Max Chaudhary                                                         For the Applicant

Ms. Kareena Wilding                                                         For the Respondent

SOLICITORS OF RECORD:

Max Chaudhary                                                                

Toronto, ON                                                                      For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada                                For the Respondent


FEDERAL COURT

Date: 20031126

Docket: IMM-3137-02

BETWEEN:

SAMIR BHINGARDE

                                                               

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                    Respondent

                                                   

                                                      

REASONS FOR ORDER

AND ORDER

                                                   


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Date Modified: 2014-04-23