Sharma v. Canada (Minister of Citizenship and Immigration)
Court headnote
Sharma v. Canada (Minister of Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2001-10-18 Neutral citation 2001 FCT 1131 File numbers IMM-575-00 Decision Content Date: 20011018 Docket: IMM-575-00 Neutral citation: 2001 FCT 1131 BETWEEN: AMIT MOHAN SHARMA Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER McKEOWN J. [1] The Applicant seeks Judicial Review of a decision of a Visa Officer dated December 13th, 1999 in which the Applicant's application for permanent residence in the independent category was denied. [2] The issue is whether the Visa Officer erred in awarding the Applicant zero units for experience under the occupation of Retail and Wholesale Buyer (NOC 6233). [3] The Applicant seeks to characterize the issue as whether the Officer misinterpreted the description of Retail and Wholesale Buyer. However, I am bound by the decision of the Federal Court of Appeal in Lim v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 8 (F.C.A.) where Mahoney J. stated at page 3: Whether the Appellant really was qualified to be a Personnel Officer in Canada was a pure question of fact entirely within the mandate of a visa officer to resolve. [4] Justice Mahoney continued and stated: It is clear, from the refusal letter, that the visa officer directed his mind to the proper question and that his conclusion was not patently unreasonable. I agree that the conclusion is applicable in the case before me. …
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Sharma v. Canada (Minister of Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2001-10-18 Neutral citation 2001 FCT 1131 File numbers IMM-575-00 Decision Content Date: 20011018 Docket: IMM-575-00 Neutral citation: 2001 FCT 1131 BETWEEN: AMIT MOHAN SHARMA Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER McKEOWN J. [1] The Applicant seeks Judicial Review of a decision of a Visa Officer dated December 13th, 1999 in which the Applicant's application for permanent residence in the independent category was denied. [2] The issue is whether the Visa Officer erred in awarding the Applicant zero units for experience under the occupation of Retail and Wholesale Buyer (NOC 6233). [3] The Applicant seeks to characterize the issue as whether the Officer misinterpreted the description of Retail and Wholesale Buyer. However, I am bound by the decision of the Federal Court of Appeal in Lim v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 8 (F.C.A.) where Mahoney J. stated at page 3: Whether the Appellant really was qualified to be a Personnel Officer in Canada was a pure question of fact entirely within the mandate of a visa officer to resolve. [4] Justice Mahoney continued and stated: It is clear, from the refusal letter, that the visa officer directed his mind to the proper question and that his conclusion was not patently unreasonable. I agree that the conclusion is applicable in the case before me. [5] Rothstein J.A. sitting as a Trial Judge confirmed in Seepersaud v. Canada (Minister of Citizenship and Immigration), [2001] F.C.T. 948 that the test of patently unreasonable is applicable in this type of case. I agree that Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 has not changed the test where it is a question of fact. [6] Furthermore, sec. 18.1(4)(d) of the Federal Court Act provides that: (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal: .... (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas : .... d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; [7] The Visa Officer did not make an erroneous finding of fact in a perverse or capricious manner without regard for the material before her. [8] The Visa Officer did err when she said the maximum number of units to be awarded for experience in this case was 4 whereas the Regulations state it should be 6 based on the Applicant's 4 years of work experience. However, this is not a reviewable error since the Applicant did not have 1 year's experience as a buyer and accordingly the Visa Officer's finding that the Applicant was entitled to zero units is not patently unreasonable, nor is it clearly wrong. [9] It was open to the Visa Officer to conclude that the buying activities of the Applicant (who did some of the duties included in NOC 6233) did not take up more than an hour a day over a 4 year period. This does not come close to adding up to 1 year's experience. It is open to a Visa Officer to conclude that a person is not a Buyer where the person spends only a minor portion of the day doing Buyer's activities. [10] The application for Judicial Review is dismissed. "W.P. McKeown" J.F.C.C. Toronto, Ontario October 18, 2001 FEDERAL COURT OF CANADA Names of Counsel and Solicitors of Record COURT NO: IMM-575-00 STYLE OF CAUSE: AMIT MOHAN SHARMA Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent DATE OF HEARING: TUESDAY, OCTOBER 9, 2001 PLACE OF HEARING: TORONTO, ONTARIO REASONS FOR ORDER BY: McKEOWN J. DATED: THURSDAY, OCTOBER 18, 2001 APPEARANCES BY: Mr. M. Max Chaudhary For the Applicant Mr. Greg G. George For the Respondent SOLICITORS OF RECORD: Mr. M. Max Chaudhary Barrister & Solicitor 18 Wynford Drive, Suite 707 North York, Ontario M5X 1K6 For the Applicant Morris Rosenberg Deputy Attorney General of Canada For the Respondent FEDERAL COURT OF CANADA Date: 20011018 Docket: IMM-575-00 Between: AMIT MOHAN SHARMA Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER
Source: decisions.fct-cf.gc.ca