Date: 20010322
Docket: IMM-4981-99
Neutral citation: 2001 FCT 233
BETWEEN:
SURINDER SINGH BHULLAR
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] At the conclusion of oral argument I advised counsel that I would, for reasons to be delivered, allow the application for judicial review. These are my reasons.
[2] Mr. Bhullar applied for permanent residence in Canada as an assisted relative in the occupation of Electrical Wiring Supervisor. He brings this application for judicial review from the decision of Victor Lum, a visa officer at the Canadian High Commission in New Delhi, India, dated June 7, 1999 whereby Mr. Bhullar's application for permanent residence was refused.
[3] The following are the salient points with respect to the refusal letter:
i) The letter advised that Mr. Bhullar was assessed against the requirements for an Electrical Wiring Inspector (CCDO: 8736110);
ii) Mr. Bhullar received 67 units of assessment. He received no units of assessment in respect of the occupational factor and six units of assessment in respect of the experience factor; and
iii) The reason given for the refusal was that subsection 11(1) of the Immigration Regulations, 1978, SOR/78-172 does not permit issuance of an immigrant visa to applicants who are not awarded any units of assessment for the experience factor unless the applicant meets certain other requirements not material to this application.
[4] In the affidavit sworn in opposition to this application by Mr. Lum, the visa officer, acknowledged that the refusal letter contained "an error" in that the refusal letter:
[...] stated that [Mr. Bhullar] did not have experience in the occupation of "Wiring Electrician" but that is incorrect as I awarded the Applicant six units of assessment for that factor. The Applicant's application did not succeed because his intended occupation did not have one unit for the factor of occupational demand. Section 11(2)(a) of the Immigration Regulations does not permit the issuance of a visa to an applicant who is not awarded one unit of assessment for the factor of occupational demand.
ANALYSIS
[5] It was wrong for the visa officer to refuse the visa application on the ground that Mr. Bhullar was awarded no units for experience as an Electrical Wiring Inspector when the refusal letter stated that he was awarded six units for experience. In that circumstance subsection 11(1) of the Immigration Regulations, 1978 was irrelevant.
[6] The refusal letter is also flawed in that while it stated that Mr. Bhullar received zero units for the occupational factor when assessed as an Electrical Wiring Inspector, the CAIPS notes indicate that five units were properly awarded to the applicant under that factor. In that circumstance paragraph 11(2)(a) of the Immigration Regulations, 1978 also became irrelevant.
[7] The visa officer endeavoured in his affidavit to explain the error and stated that he also assessed Mr. Bhullar's application in the occupation of "Wiring Electrician" awarding the identical units of assessment as are set out in the refusal letter under the caption of an Electrical Wiring Inspector. I was invited to conclude that in fact Mr. Bhullar was properly assessed in the former occupation and that the refusal letter was simply in error in describing the assessment to have been in respect of the occupation of an Electrical Wiring Inspector. However, such explanation was not sworn to by the visa officer who made no reference to any error in the refusal letter in respect of the designation of the occupation found above the unit assessment.
[8] In any event, in my view, in addition to the right to be assessed in accordance with the applicable provisions of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") and associated regulations, an unsuccessful applicant is entitled to receive an explanation for the refusal of their application which is logical and consistent with the Act and the regulations. It is not, in my opinion, an acceptable answer on an application for judicial review to assert that an assessment was correct, albeit in respect of an occupation other than that which the applicant sought to be assessed in and other than that disclosed to the applicant in the refusal letter.
[9] For these reasons, I determined that this application for judicial review must be allowed and the matter remitted for redetermination by a different visa officer.
[10] In so concluding, I found no breach of fairness arising out of any failure to give Mr. Bhullar an opportunity to refute the visa officer's negative opinion.
[11] Neither party suggested certification of a question, and costs were not sought.
JUDGMENT
IT IS HEREBY ORDERED AND ADJUDGED THAT:
1. The application for judicial review is allowed and the decision of Victor Lum dated June 7, 1999 is hereby set aside.
2. The matter is to be remitted for redetermination by a different visa officer.
"Eleanor R. Dawson"
J.F.C.C.
Toronto, Ontario
March 22, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4981-99
STYLE OF CAUSE: SURINDER SINGH BHULLAR
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, MARCH 19, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
AND JUDGMENT BY: DAWSON J.
DATED: THURSDAY, MARCH 22, 2001
APPEARANCES BY: Ms. Helen P. Luzius
For the Applicant
Mr. Toby Hoffman
For the Respondent
SOLICITORS OF RECORD: Helen P. Luzius
Barrister & Solicitor
3080 Yonge Street
Suite 5030
Toronto, Ontario
M4N 3N1
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010322
Docket: IMM-4981-99
Between:
SURINDER SINGH BHULLAR
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT