Date: 20010824
Docket: IMM-2478-00
Neutral citation: 2001 FCT 948
BETWEEN:
TEAJ SEEPERSAUD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.A.:
[1] This is a judicial review of a decision of a visa officer denying the applicant's application for permanent residence in the independent category of Heavy Duty Mechanic, NOC 7312. The applicant received 58 units of assessment, 12 less than necessary under subsection 9(1) of the Immigration Regulations for the issuance of a permanent residence visa.
[2] At the outset, the respondent conceded that the visa officer erred in denying the applicant 5 units in the assisted relative category. This would bring the applicant to 63 units.
[3] The applicant then says the visa officer erred in not awarding him any units for experience. He said he should have received 4 units. He also says the visa officer should have awarded him 7 personal suitability units rather than 4. With the additional 4 units for experience and 3 units for personal suitability, the applicant would have reached 70 units.
[4] As to his experience as a Heavy Duty Mechanic, the applicant provided a letter from his employer in Guyana from 1975 to 1994. The letter states that the applicant was employed initially as an apprentice mechanic and served in the employer's sawmilling complex as well as in various forestry locations. He was promoted from time to time and had obtained the position of Chief Heavy Duty Equipment Mechanic by 1985. He served in that position in the sawmilling complex and logging operations from 1985 to 1994. The job description for a Heavy Duty Equipment Mechanic in the NOC provides in part:
Heavy Duty Equipment Mechanics repair, overhaul and maintain mobile heavy duty equipment used in ... forestry....
[5] Prima facie, the employer's letter indicates that the applicant had worked as a Heavy Duty Equipment Mechanic. The visa officer did not question the credibility of the letter.
[6] Nonetheless, the visa officer found that the applicant failed to demonstrate he performed a substantial number of duties set out for the Heavy Duty Mechanic occupation in the NOC. However, nowhere in the record is there any indication of what questions the visa officer asked the applicant or what answers he gave to cause her to conclude that he did not perform a substantial number of duties for a Heavy Duty Equipment Mechanic.
[7] I accept the respondent's argument that the determination of whether the applicant performed certain duties is factual. Such a determination is entitled to be reviewed on the most deferential standard. However, from the record, it is impossible to tell how the visa officer came to her factual conclusion. On the other hand, the employer's letter to which the visa officer does not refer in her reasons or in the CAIPs notes suggests the applicant has experience as a Heavy Duty Equipment Mechanic. Indeed, the CAIPs notes say that the applicant claimed that he worked for Ameerally Sawmills as a mechanic: cars, trucks and logging skadders.
[8] In view of the employer's letter, the applicant's claim that he worked for Ameerally Sawmills as a mechanic, cars, trucks and logging skadders and the absence of any explanation supporting the visa officer's conclusion that the applicant did not perform a substantial number of duties for a Heavy Duty Equipment Mechanic described in NOC 7312, I can only conclude that the visa officer ignored the evidence before her and made a patently unreasonable decision as to the applicant's experience as a Heavy Duty Equipment Mechanic.
[9] I hasten to add that in coming to this conclusion I do not say that the applicant did perform the duties of a Heavy Duty Equipment Mechanic. That will be a matter for redetermination by a different visa officer. The problem here is that it is impossible to tell from the evidence what information was elicited by the visa officer to come to her conclusion. In the face of the employer's letter and other conflicting evidence, the decision cannot stand.
[10] It is unnecessary for me to deal with the issue of personal suitability. In view of the visa officer's error conceded by the respondent with respect to assisted relative units and the necessity to redetermine the appellant's expertise as a Heavy Duty Equipment Mechanic, it is impossible to know whether the personal suitability assessment already determined would stand or be altered.
[11] In the circumstances, the judicial review will be allowed and the matter remitted to a different visa officer for redetermination.
"Marshall Rothstein"
Judge
Toronto, Ontario
August 24, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2478-00
STYLE OF CAUSE: TEAJ SEEPERSAUD
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, AUGUST 21, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN J.A.
DATED: FRIDAY, AUGUST 24, 2001
APPEARANCES: Yehuda Levinson
For the Applicant
Greg George
For the Respondent
SOLICITORS OF RECORD: Levinson & Associates
Barristers & Solicitors
480 University Ave., Suite 610
Toronto, Ontario
M5G 1V2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010824
Docket: IMM-2478-00
BETWEEN:
TEAJ SEEPERSAUD
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Date: 20010824
Toronto, Ontario, Friday the 24th day of August, 2001
PRESENT: The Honourable Mr. Justice Rothstein
BETWEEN:
TEAJ SEEPERSAUD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The judicial review is allowed and the matter is remitted to a different visa officer for redetermination.
"Marshall Rothstein"
Judge