Date: 20000913
Docket: IMM-3937-99
BETWEEN:
MOHAMMAD ABDUL KHALAQUE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] In the present case, the Applicant, who is a citizen of Bangladesh, applied for permanent residence in Canada as an independent Applicant, and specifically asked to be assessed as: Accountant (NOC 1111.2), and Financial Manager (NOC 0111.0), and all other applicable occupations.
[2] However, the Visa Officer who considered the Applicant's application only assessed the Applicant in the occupation of Bookkeeper (NOC 1231) and awarded 57 points, but also stated in the Letter of Refusal as follows:
| I have also assessed your application considering the occupation Accountants NOC 1111.2, but I am not satisfied that you have the required work experience, education or training for assessment in this occupation as defined in the NOC.1 |
[3] It is apparent from this conclusion that the Applicant was not assessed in the occupation Accountant (NOC 1111.2), but, instead, was given only a cursory or preliminary evaluation. Indeed, no mention is even made in the Letter of Refusal of the application to be assessed as Financial Manager (NOC 0111.0).
[4] I agree with Rothstein J.'s opinion expressed in Issaevea v. Canada (Minister of Citizenship and Immigration) (1997), 37 Imm.L.R. (2d) 91, at paragraphs 8 and 9 where, in considering Mahoney, J.A.'s decision in Uy v. Canada (Minister of Employment and Immigration) (1991), 12 Imm.L.R. (2d) 172 (F.C.A.), he states that "a prospective immigrant is entitled to be assessed in the prospective immigrant's claimed occupation", and that "the terms `assess' and `assessment' mean the process of applying to the prospective immigrant the factors listed in Column 1 of Schedule 1 of the Regulations".
[5] In reaching his carefully considered opinion in Issaeva v. Canada, Rothstein J. considers earlier decisions which suggest that, if a visa officer makes a preliminary determination that a prospective immigrant is not qualified in his or her claimed occupation, there is no need to conduct an assessment with respect of that occupation, or that such determination constitutes an assessment. However, I also agree with Rothstein J.'s opinion at paragraph 11 that Uy v. Canada is a binding authority which requires that an assessment in accordance with the Immigration Act and Regulations be made with respect to a proposed immigrant's claimed occupation.
ORDER
[6] Thus, I find that the Visa Officer in the present case made an error in law in failing to carry out the assessments as requested by the Applicant. Accordingly, I set aside the Visa Officer's decision and refer this matter to another visa officer for redetermination.
(Sgd.) "Douglas R. Campbell"
Judge
September 13, 2000
Vancouver, British Columbia
I HEREBY CERTIFY that the above document
is a true copy of the original filed of record
in the Registry of the Federal Court of Canada
in the _______ day of ___________ A.D. 20 ____
Dated this _______ day of ____________ 20 ____
________________________
Stephanie Roy, Registry Officer
1
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3937-99
STYLE OF CAUSE: MOHAMMAD ABDUL KHALAQUE
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: September 13, 2000
REASONS FOR ORDER AND ORDER OF CAMPBELL, J.
DATED: September 13, 2000
APPEARANCES:
Mr. Peter Chapman FOR PLAINTIFF
Mr. Mark Sheardown FOR DEFENDANT
SOLICITORS OF RECORD:
Chapman & Company Law Corp.
Vancouver, BC FOR PLAINTIFF
Morris Rosenberg
Deputy Attorney General
of Canada FOR DEFENDANT
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