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"
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.
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