Date: 20021122
Docket: IMM-4047-01
Neutral citation: 2002 FCT 1215
Toronto, Ontario, Friday, the 22nd day of November, 2002
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
NAVPREET SINGH ARORA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] Mr. Navpreet Singh Arora (the "Applicant") seeks judicial review of the decision of Visa Officer Barbara Stewart (the "Visa Officer"). In her decision, dated July 3, 2001, the Visa Officer refused the Applicant's application for permanent residence in Canada.
FACTS
[2] The Applicant is a citizen of India. He applied for permanent residence in Canada in the "independent" category. He identified his intended occupation in Canada as "Economic Development Officer and Marketing Researcher and Consultant", National Occupation Classification ("NOC") 4613.
[3] His application and file were reviewed by the Visa Officer. After this paper screening, she determined that the Applicant lacked the work experience required by the NOC for his intended occupation. No interview was held and the refusal issued following review of the Applicant's file, including evidence that he submitted.
APPLICANT'S SUBMISSIONS
[4] The Applicant argues that the Visa Officer failed to provide in the refusal letter any supporting reasons for her conclusion that he lacked "the requisite experience in his intended occupation". The Visa Officer did not mention the Applicant's prior work experience as a manager. Further, the Applicant submits that the CAIPS notes do not reveal the reasons for the Visa Officer's finding that he lacked the necessary experience.
[5] The Applicant relies on Zheng v. Canada (Minister of Citizenship and Immigration) (2000), 5 Imm. L.R. (3d) 208 (F.C.T.D.) to support the argument that when a refusal is based upon lack of experience, the record must show the reasons in support of that conclusion. Here, the Applicant says that the Visa Officer's refusal was based on a lack of experience but there are no reasons to support this conclusion.
RESPONDENT'S SUBMISSIONS
[6] The Respondent argues that the Visa Officer was not obliged to provide further reasons for her decision and that the refusal letter set out the basis for refusal, that is a lack of experience.
[7] The Respondent submits that, on the basis of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the duty of fairness was met in the present case. The refusal letter refers to the lack of experience and the reason for the refusal. It was not necessary for the Visa Officer to spell out the basis for her decision once she was satisfied that the Applicant did not have the requisite experience.
ANALYSIS
[8] The disposition of this application turns on the issue of procedural fairness. Did the Visa Officer breach the duty of fairness owed to the Applicant by failing to give reasons for her decision in the refusal letter dated July 3, 2001?
[9] The operative part of the refusal letter, following the assessment of units awarded to the Applicant, reads as follows:
Section 11(1) of the Regulations does not permit the issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of "experience in an occupation for which they are qualified and are prepared to follow in Canada", unless the immigrant has arranged employment in Canada and has a written statement from the proposed employer verifying that he/she is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience.
You therefore come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act and your application has been refused.
[Underlining in original]
[10] In my opinion, this paragraph does not provide reasons for the decision. It appears to be a restatement of the Immigration Regulations, 1978, SOR/78-172, section 11(1).
[11] In Hajariwela v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (T.D.), the Court said at paragraph 15:
The record must equally indicate reasons which support the visa officer's assignment of a specific experience rating to the included occupations or reasons which support the refusal to do so.
[12] The refusal letter in the present case does not meet this standard.
[13] Furthermore, reliance upon the more recent decision in Baker, supra, does not change the situation. In Baker, supra, the Court found that the notes of the reviewing officer should be accepted as the reasons for the decision, in the absence of any other record of the reasons for the decision. The Court found that the notes of the officer were explicit as to the reasons for the refusal.
[14] In the present case, the CAIPS notes simply record a lack of experience without any reason for the finding.
[15] I conclude that here the Visa Officer breached the duty of procedural fairness by failing to provide reasons for her finding that the Applicant lacked the requisite experience. The application for judicial review is allowed and the matter remitted to a different visa officer for determination according to law.
[16] There is no question for certification arising from this application.
ORDER
The application for judicial review is allowed and the matter remitted to a different visa officer for determination according to law.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021122
Docket: IMM-4047-02
BETWEEN:
NAVPREET SINGH ARORA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4047-01
STYLE OF CAUSE:NAVPREET SINGH ARORA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY NOVEMBER 20, 2002
REASONS FOR ORDER
AND ORDER BY: HENEGHAN, J.
DATED: RESERVED
APPEARANCES BY: Mr. M. Max Chaudhary.
For the Applicant
Ms. Patricia MacPhee
For the Respondent
SOLICITORS OF RECORD: Mr. M. Max Chaudhary
Barristers & Solicitors, Chaudhary Law Office
Suite 707, 18 Wynford Drive
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021120
Docket: IMM-4047-01
BETWEEN:
NAVPREET SINGH ARORA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER