Date: 19980709
Docket: IMM-1528-97
BETWEEN:
ROSHAN KHIMANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Thursday, July 9, 1998)
DÉCARY J.
[1] The applicant, a practicing doctor in India, was denied landing in Canada by a visa officer acting pursuant to subsection 8(1) of the Immigration Regulations, 1978 ("the Regulations"). The applicant had been offered a job by her brother in Canada as a Production Assistant in a family business involved in the production of garments.
[2] The visa officer gave the applicant 54 units in the eight categories described in Schedule I to the Regulations. His refusal letter is to say the least confused. He gave 1 unit for "experience", but states in his affidavit that it was a clerical mistake as he had given the applicant 0 unit in that regard. While he did identify the "arranged employment" factor as one of the eight he had considered , he failed to put it on the list, though it is implicit in his letter, and explicit in his affidavit, that he gave no unit with respect to that factor. Had the applicant being given 55 units instead of 54, including at least one unit for each of the factors "experience" and "occupational factor", she would have been entitled to an interview (s. 11.1 of the Regulations).
[3] In deciding to allow zero unit to the "arranged employment" factor, the visa officer relied on the criteria set out in the Immigration Selection and Control Manual, paragraphs IS 1.35(1)(a) through (f), and particularly on the criterion defined in (f), i.e. whether "the prospective immigrant has in his work experience and aptitudes sufficient abilities to indicate he could successfully fill the position".
[4] I am prepared to consider these criteria as not binding guidelines which help a visa officer in his interpretation and application of the Regulations.
[5] On the facts of this case, particularly as evidenced by the cross-examination of the visa officer, it is obvious that the visa officer did not, in his assessment of factor 5 (arranged employment), appreciate the difference between "experience" and "aptitudes" and that he did not address the question of what aptitudes the applicant had irrespective of her experience. This is such a major flaw that the overall assessment cannot be allowed to stand.
[6] The application for judicial review will be allowed, the decision of the visa officer will be set aside and the matter will be referred back for redetermination by a different visa officer.
"Robert Décary"
Judge
Toronto, Ontario
July 9, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1528-97
| STYLE OF CAUSE: ROSHAN KHIMANI |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JULY 9, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: DÉCARY, J.
DATED: JULY 9, 1998
APPEARANCES:
Mr. Max Chaudhary
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
Chaudhary Law Office
812 - 255 Duncan Mill Road
North York, Ontario
M3B 3H9
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980709
Docket: IMM-1528-97
Between:
| ROSHAN KHIMANI |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER