Date: 19990930
Docket: IMM-5511-98
BETWEEN:
YINGYING CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] The applicant Mr. Yingying Chen is a resident of China. The record indicates that he has extensive experience as a financial manager in state owned financial institutions in China. He applied for permanent residence in Canada on the basis of the intended occupation of financial manager. He was assessed in that category and found to qualify for that occupation. However, because of the visa officer"s assessment of Mr. Chen"s language ability and personal suitability, the points awarded to him fell 2 points short of what he needed for his application to be accepted, and it was rejected. Mr. Chen seeks judicial review of that decision.
[2] The record indicates that Mr. Chen"s experience includes that of a financial analyst as well as that of a financial manager. If Mr. Chen had been assessed as a financial analyst, there is little doubt that he would have been awarded 2 additional points, because even though the category of financial analyst requires less by way of training and experience than the category of financial manager, it is an occupation that apparently is more in demand in Canada.
[3] The authorities have established that a visa officer must assess an applicant in any occupation inherent in his work experience where the applicant seeks such an assessment: Gaffney v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 185 (F.C.A.).
[4] The circumstances that put the visa officer on notice that such an additional assessment is required would include, at least, a request in the application or in the interview: Adami v. Canada (Minister of Citizenship and Immigration) (5 May 1999), Court File Imm-3193-98 (F.C.T.D.), Shen v. Canada (Minister of Citizenship and Immigration) (30 August 1999), Court File IMM-3808-98 (F.C.T.D.), Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (F.C.T.D.), Li v. Canada (Minister of Employment and Immigration) (1990), 31 F.T.R. 290 (F.C.T.D.).
[5] The question in this case is whether such a request was made. Mr. Chen says in his affidavit that at the interview he asked to be assessed as a financial analyst as well as a financial manager, and that he gave the visa officer an example of a financial analysis report he had prepared for his company. Mr. Chen was not cross examined on his affidavit.
[6] The visa officer submitted an affidavit in which she says that she does not recall such a request having been made. She admits being given the financial analysis report, but says she believed that Mr. Chen was merely asking her to reconsider her decision, and so she took the report at his insistence but did not read it because she had already decided that he was qualified as a financial manager. Nothing in the visa officer"s affidavit contradicts Mr. Chen"s assertion that he requested assessment as a financial analyst.
[7] I am satisfied that the request was made. It follows that the visa officer erred in failing to assess Mr. Chen in the category of financial analyst. That is sufficient to quash the decision of the visa officer and refer Mr. Chen"s application for reconsideration by a different visa officer.
[8] However, several other issues were argued, two of which deserve comment.
[9] It appears that the visa officer was of the opinion that she had no duty to consider alternative occupations for Mr. Chen because she found him to be qualified as a financial manager. Put another way, she considered herself to be relieved of any obligation to assess him in any other occupation category because his application ultimately failed on the basis of the points awarded for language ability and personal suitability.
[10] I see no basis in law or in principle for such a restrictive view of the visa officer"s duty to consider alternative occupations. The purpose of the Immigration Act is to permit immigration, not to prevent it: Hajariwala (supra). The fact that an applicant is qualified for an occupation that is in moderate demand should not disqualify him from consideration for a lesser occupation that is in greater demand, if he requests assessment in the lesser occupation, as occurred in this case.
[11] Counsel for the applicant also argued that the visa officer erred in her assessment of Mr. Chen"s personal suitability. She appears to have discounted his prospects for success in Canada because his experience was with state owned financial institutions in China. When asked for a factual foundation for that conclusion, she cited only the personal knowledge she had from living in Hong Kong, and what appears to be her assumption that stated owned financial institutions in China are not profit oriented organizations. She did not, at the interview, raise this issue with Mr. Chen or give him an opportunity to disabuse her of that assumption, or alternatively to explain how his experience might enable him to adapt. This was another error by the visa officer that would have justified quashing her decision.
[12] As the disposition of this application turns entirely on a question of fact, it is not an appropriate case for a certified question.
[13] I will defer the issuance of the order pending the receipt of submissions with respect
to costs. The submission of counsel for the applicant is to be served and filed on or before October 8, 1999. The submission of counsel for the Crown is to be served and filed on or before October 15, 1999.
"Karen R. Sharlow"
Judge
Winnipeg, Manitoba
September 30, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-5511-98
| STYLE OF CAUSE: YINGYING CHEN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: September 27, 1999
REASONS FOR ORDER
OF THE COURT: The Honourable Madame Justice Sharlow
DATED: September 30, 1999
APPEARANCES
Mira Thow for the Applicant
Jessica Cogan for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
SOLICITORS OF RECORD
Zaifman Associates
5th floor, 191 Lombard Avenue
Winnipeg, Manitoba
R3B 0X1
for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent