Date: 20000509
Docket: IMM-2260-99
BETWEEN:
JIE ZHANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of, and an order setting aside, the decision of a visa officer in Hong Kong who assigned 60 units in assessment of her application for permanent residence, with no units of assessment for work experience in her intended occupation in Canada, that of a civil engineer.
[2] In written submissions it is urged that the assessment for experience ignored the evidence of her experience provided by a letter from her employer which set out in considerable detail the main duties and responsibilities of the applicant in her 12 years of employment by Shanghai Electronic Engineering Design and Research Institute. Yet in CAIPS notes made at the time of the applicant's interview, the visa officer noted a number of occasions on which she asked the applicant to provide details of her work and experience, without any adequate response from the applicant.
[3] In the letter refusing the application the visa officer wrote that:
| ...on the basis of the information obtained in interview, I am not satisfied that you currently fulfill or have fulfilled the job duties and responsibilities of a Civil Engineer as described by the National Occupational Classification. I have therefore awarded you zero points for experience. ... |
In her affidavit the applicant states:
| ...During the interview, I explained to her in very detail about my civil engineer job function as well as some major civil engineering projects I involved during my last 12 years working experiences. But the officer impolitely interrupted my answer several times, and asked for more detail information about my job, when I asked her in which area, she said it could be any area. It really confused me since I thought I already explained to her in very detail and in every area that I know. |
While there is no responding affidavit of the visa officer, the CAIPS notes, in my opinion, set out a number of specific matters on which the officer sought more detail, without success. In my opinion, the evidence of the officer's notes clearly supports the conclusion that the applicant, at her interview, did not demonstrate that she had fulfilled the responsibilities of the elected occupational classification. Thus, I am not persuaded that the officer's assessment of the applicant's experience as a civil engineer, considered apart from other factors, was perverse, or made without reference to evidence before her, in this case the evidence from the hearing as reflected in the officer's CAIPS notes.
[4] However, it is urged on a second ground that the officer's assessment of the applicant's experience at zero units was perverse. In reliance upon Duaz v. The Minister of Citizenship and Immigration,1 and Osman v. The Minister of Citizenship and Immigration,2 it is urged that it is perverse in logic and in law for the officer to assign five units for occupational demand and zero units for experience. Occupational demand, in accord with the Immigration Regulations, 1978, Schedule I, Factor 4, is assessed for employment opportunities in Canada in the occupation, inter alia, "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". Assigning units to the occupational factor, based in part on the experience of the applicant in her intended occupation, and no units to the experience factor, in the absence of any explanation was found to be perverse in the Duaz and Osman decisions.
[5] Accepting that on this basis the visa officer erred in the assessment of experience, and that in light of the 17 units assigned for education and training (factor 2) in this case, so that units of assessment for experience would be two for each year of experience not exceeding four years, and thus might total the maximum of eight units for experience, I am persuaded this is not a case for the Court to intervene, since in itself this would not be sufficient to warrant reversing the visa officer's ultimate decision to reject the application. That maximum assessment for experience would leave the applicant with 68 units of assessment, less than the 70 required for granting of a visa to an applicant in the independent class, as the applicant here was.
[6] It is urged for the applicant that the visa officer made a further error in assigning 0 units for the applicant's capacity in the English language. The applicant claimed by her application that she spoke English well, reads and writes English fluently and by her affidavit she refers to English language studies and examinations completed. At the hearing counsel conceded that the applicant's ability to speak and read English was, at best, "with difficulty", but it was urged that her written English, from the evidence on the record should have been classed as "well" in terms of ability to communicate. Counsel relied upon Sailopal v. The Minister of Citizenship and Immigration3 where Rothstein J. found on the basis of the applicant's evidence, and in the absence of any evidence to the contrary, that he had ability to read and write English fluently, and that a zero assessment was perverse. In this case the evidence does not support a similar finding about the assessment of the applicant's writing ability. The CAIPS notes include the following:
| Writing claimed as fluent: 5 minute test on file. Pl has produced writing which is limited to learned and familiar sentences. |
The writing test, included in the record, shows as follows:
| [Printed in capital letters, presumably by the visa officer] |
| YOU HAVE JUST BOUGHT A REFRIGERATOR AND IT HAS BROKEN DOWN AFTER 2 WEEKS. PLEASE WRITE A LETTER OF COMPLAINT TO THE COMPANY EXPLAINING YOUR POSITION. |
| [written in cursive script, presumably by the applicant] |
| I just bought a refrigerator but it do not work now. I requist your company to repaid it and |
Despite the argument of counsel for the applicant I am not persuaded that this example of writing in English, in a five-minute test, demonstrates clearly that the applicant writes English well or fluently. In my opinion, it was not perverse for the officer to assign zero units for her ability to speak, read and write English. Under Schedule I, Factor 8, unless the applicant demonstrates ability to speak, read or write fluently or well the first official language she selects, whether it be French or English, no credits are awarded for that ability. If zero credits are awarded for speaking, reading or writing in English or French, then no units of assessment are to be awarded for ability with one of the official languages of Canada.
Conclusion
[7] Since I am not persuaded that the visa officer's assessment of zero for the applicant's ability to speak, read or write English was perverse or patently unreasonable, reassessment of her experience, even at the maximum units of assessment, would not lead to a different result in assessment of her application.
[8] In these circumstances, the Court will not intervene to set aside the decision of the visa officer, by letter dated March 22, 1999, which rejected the applicant's application for permanent residence in Canada. The application to set aside that decision is dismissed.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
May 9, 2000
__________________
1 (1999), 173 F.T.R. 288, [1999] F.C.J. No. 1307 (T.D.) per Sharlow J.
2 [2000] F.C.J. No. 142 (T.D.) per Reed J.
3 (1998), 47 Imm.L.R. (2d) 274, [1998] F.C.J. No. 1573 (T.D.) per Rothstein J.