Ottawa, Ontario, October 6, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] A visa officer rejected Ms. Bhatt’s application for permanent residence as a member of the federal skilled workers class. This application for judicial review of that decision is dismissed because the officer’s assessment of Ms. Bhatt’s work experience and occupational factor is not unreasonable, and there is no appearance of bias or unfairness.
[2] Ms. Bhatt’s application for permanent residence was assessed under the Immigration Act, R.S.C. 1985, c. I-2 (former Act) and its associated regulations, the Immigration Regulations, 1978, SOR/78-172 (former Regulations). It was also assessed under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) and its associated regulations, the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations).
[3] When assessing Ms. Bhatt’s application under the former Act and former Regulations, the officer awarded Ms. Bhatt zero units of assessment in the category of work experience. This was fatal to her application because subsection 11(1) of the former Regulations required an applicant to receive at least one unit of assessment for experience (unless the applicant had arranged employment, which Ms. Bhatt did not).
[4] When assessing the application under the current legislation, the visa officer found that Ms. Bhatt had failed to satisfy him that she had performed a substantial number of the main duties of her claimed occupation of paralegal (NOC 4211), including the essential duties. This was fatal to her application as a result of the application of subsections 75(2) and (3) of the Regulations. Section 75 of the Regulations is set out in the appendix to these reasons.
[5] Ms. Bhatt asserts that both assessments are unreasonable because the officer ignored documents she provided that established her work experience. Ms. Bhatt had provided letters from two law offices where she says she has worked, and which set out the duties she says she performed over the period from June 1999 to May 2007.
[6] Ms. Bhatt was required to attend an interview in order to verify her employment and experience because the letters she provided from her employers did not appear to be reliable. The Computer Assisted Immigration Processing System (CAIPS) notes record the following in respect of the interview:
PA states that she is responsible for maintaining drafts and dealing with clients. I asked PA to explain her duties in detail. PA has not responded to my question. Do you understand my question? Yes. Do you need an interpreter? No. What do you do at work? No answer. Please explain your job duties to me? No answer. I explained to PA that if she did not answer my questions, I was going to have to refuse her application. PA states that she understands. Please explain your job duties to me? No answer. Please tell me what you do at work? No answer. I stopped the interview and requested an interpreter as I am not sure that PA understands my questions. Interview resumed in Hindi. PA states that she understands the interpreter.
Please explain your job duties? I work 10-5 and I joined in 1999. I’m working for Mr. Shah since 2006 as my previous employer went to Canada. I give legal advice to my clients. I work in civil matters pertaining to different types of contracts. I noticed that PA had a copy of the NOC 4211 (legal assistant) and appeared to be reading from it. I asked PA for the NOC document. What type of contracts do you prepare? No answer. PA now states that she provides advice regarding property contracts. What type of advice do you provide? Pause. I work with my seniors learning and working. Why are you having so much difficulty answering questions about your work? No answer. PA then states that she is nervous. Why? No answer.
[7] The visa officer filed an affidavit in this proceeding in which he swore that the CAIPS notes accurately reflect the questions posed to Ms. Bhatt and her answers. The officer was not cross-examined on that affidavit. I accept, therefore, that the CAIPS notes are evidence of the facts to which they refer. See: Tajgardoon v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 591 (T.D.). To the extent the visa officer’s evidence conflicts with Ms. Bhatt’s, I prefer the evidence of the visa officer because it is consistent with, and confirmed by, the CAIPS notes.
[8] The visa officer was not bound to accept the truth of the content of the letters provided by Ms. Bhatt. The deficiency in the form of the letter identified by the officer, together with Ms. Bhatt’s inability to answer questions relating to her work experience and the fact that during her interview she appeared to be reading from the NOC statement of employment duties for a paralegal, fully support the officer’s conclusion.
[9] I am satisfied that the decision is reviewable on the standard of reasonableness. See: Choi v. Canada (Minister of Citizenship and Immigration, [2008] F.C.J. No. 734 at paragraph 12. The officer’s reasons are justified, transparent and intelligible. The decision falls within the range of acceptable outcomes that are defensible in fact and law. The decision is, therefore, reasonable.
[10] There is no appearance of unfairness or bias.
[11] The application for judicial review will be dismissed.
[12] Counsel posed no question for certification, and I agree that no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
Judge
APPENDIX
Section 75 of the Regulations reads as follows:
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2969-07
STYLE OF CAUSE: MINALBEN BHATT, Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 30, 2008
APPEARANCES:
STEPHEN L. WINCHIE FOR THE APPLICANT
ROBERT BAFARO FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEPHEN L. WINCHIE FOR THE APPLICANT
MISSISSAUGA, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA