Date: 20010817
Docket: IMM-3856-00
Neutral citation:2001 FCT 917
BETWEEN:
OBEID SHEIKH IDRIS IBRAHIM
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application challenges a decision of Visa Officer who declined a visa to the applicant since he achieved only 68 points, when 70 were required. He gave no points for the Occupational Factor because he failed to meet the NOC 4211 classification which required "two years of in-house training under the supervision of a registered trade mark agent".
[2] It is accepted that the applicant worked under the supervision of his father and others as a trade mark agent in the Sudan for 6 years. It is also accepted that accountants and lawyers are allowed to practice as trade mark agents in the Sudan and that there is no formal registration system in existence there.
[3] It is, therefore, contended by counsel for the Crown that the applicant cannot qualify to enter Canada as a trade marks agent under NOC 4211 since technically, and "coldly" he admits, there is just no such thing as a "registered" trade marks agent in the Sudan to supervise anyone. Relying on Li v. M.C.I. [1999] F.C.J. No. 861, he says the applicant must be denied admission.
[4] Mr. Savage, counsel for the applicant, suggests that, if that is so, no trade marks agent from the Sudan can qualify for entry to Canada. This, he says, is interpreting these requirements too absolutely. As in Xu v.M.C.I. [1999] F.C.J. No. 1543, he suggests that some flexibility should be countenanced by the Court here.
[5] In my view, the Visa Officer's interpretations of the NOC provision was patently unreasonable. The meaning of the word "registered" must be viewed in the context of the country where the applicants lives. If there are registered occupations, the supervisor must clearly be registered, but, where no system of registration exists, one must look at the substance of the situation to see whether the people practising that occupation have a status that is substantively equivalent to registration. In this case the accountants who practice as trade mark agents in the Sudan are legally entitled to do so and, hence, anyone working under their supervision is engaged in work under the supervision of someone who has the equivalent standing in the Sudan as one who was registered in a country that has a registration system. The purpose of the provision is served by this flexible and realistic interpretation.
[6] The application will be allowed and the matter will be returned to another Visa Officer to determine in accordance with these reasons.
[7] It was urged that a certified question be asked relating to the meaning of the word "registered", but, in my view, the answer to any such question is so obvious, that there is no need to ask the Court of Appeal to consider it.
"A. M. Linden"
Judge
Toronto, Ontario
August 17, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3856-00
STYLE OF CAUSE: OBEID SHEIKH IDRIS IBRAHIM
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: FRIDAY, AUGUST 17, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LINDEN J.A.
DATED: FRIDAY, AUGUST 17, 2001
APPEARANCES: Mr. Harvey Savage
For the Applicant
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD: Harvey Savage
Barrister & Solicitor
393 University Ave., Suite 2000
Toronto, Ontario
M5G 1E6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010817
Docket: IMM-3856-00
BETWEEN:
OBEID SHEIKH IDRIS IBRAHIM
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
Date: 20010817
Docket: IMM-3856-00
Toronto, Ontario, Friday the 17th day of August, 2001
PRESENT: The Honourable Mr. Justice Linden
BETWEEN:
OBEID SHEIKH IDRIS IBRAHIM
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
This application is allowed, the decision of the Visa Officer is set aside and the matter is remitted to another Visa Officer to determine in accordance with these reasons.
"A. M. Linden"
Judge