Dahyalal v. Canada (Citizenship and Immigration)

Dahyalal v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2007-06-21
Neutral citation
2007 FC 666
File numbers
IMM-4303-06
Decision Content
Date: 20070621
Docket: IMM-4303-06
Citation: 2007 FC 666
Ottawa, Ontario, June 21, 2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
PATEL DEVENDRAKUMAR DAHYALAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Patel Dahyalal applied to become a permanent resident of Canada as a skilled worker, in particular, as a veterinarian. A visa officer at the Canadian Embassy in New Delhi evaluated Mr. Dahyalal’s application and, after interviewing him, found his experience to be inadequate. Mr. Dahyalal argues that the officer erred in her assessment and asks me to order a re-assessment by a different officer. I agree that the officer erred and must, therefore, grant this application for judicial review.
I. Issue
[2] Did the officer apply the wrong test?
II. Analysis
[3] According to her notes, the officer concluded that Mr. Dahyalal had not demonstrated that he had performed “most of the main duties” described in the National Occupation Classification for a veterinarian (NOC 3114). However, under the Immigration and Refugee Protection Regulations, SOR/2002-227, an applicant need only show that he or she performed a “substantial number of the main duties” (s. 75(2)(c)) (relevant enactments are set out in an Annex). A similar test was set out in the Immigration Regulations, 1978, SOR/78-172, Schedule I, item 4(1)(b) under which Mr. Dahyalal’s application was also evaluated.
[4] Further, the actual NOC description states that veterinarians perform “some or all” of the main duties. It is an error for a visa officer to require an applicant to have performed a majority of the main duties when the relevant NOC description merely demands that they have experience in “some or all” of them: A’bed v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1027; Noman v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1169.
[5] In my view, the officer imposed too high a standard. Therefore, I must allow this application for judicial review and order a re-assessment of Mr. Dahyalal’s application by a different officer. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS THAT:
1. The application for judicial review is allowed. The matter is referred back to a different officer for reconsideration;
2. No questions of general importance are stated.
“James W. O’Reilly”
Judge
Annex
Immigration and Refugee Protection Regulations, SOR/2002-227
Skilled workers
75. (2) A foreign national is a skilled worker if
…
(c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties.
Immigration Regulations, 1978, SOR/78-172, Schedule I
Occupational factor
4. (1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation
…
(b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and
Règlement sur l’immigration et la protection des réfugiés, DORS/2002-227
Qualité
75. (2) Est un travailleur qualifié l’étranger qui satisfait aux exigences suivantes :
[…]
c) pendant cette période d’emploi, il a exercé une partie appréciable des fonctions principales de la profession figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles
Règlement sur l'immigration de 1978, DORS/78-172, Annexe I
Facteur professionnel
4. (1) Des points d'appréciation sont attribués en fonction des possibilités d'emploi au Canada dans la profession :
[…]
b) pour laquelle le requérant a exercé un nombre substantiel des fonctions principales établies dans la Classification nationale des professions, don't les fonctions essentielles;
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4303-06
STYLE OF CAUSE: PATEL DEVENDRAKUMAR DAHYALAL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: June 14, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: O’REILLY J.
DATED: June 21, 2007
APPEARANCES:
Max Chaudhary
FOR THE APPLICANT
Anshumala Juyal
FOR THE RESPONDENT
SOLICITORS OF RECORD:
M. MAX CHAUDHARY
North York, On.
FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, ON
FOR THE RESPONDENT