Date: 20000309
Docket: IMM-2453-99
BETWEEN:
MANG GAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS, J.
[1] The applicant seeks a judicial review of the decision of visa officer, Susanna Ching, of the Canadian Consulate General in Hong Kong, dated April 20, 1999, wherein her application for permanent residence, under the independent immigrant category, was refused.
Facts
[2] The applicant is a citizen of the People"s Republic of China. She graduated from the Foreign Language Department of Chongqing University in Chongqing, with a Bachelor of Arts degree majoring in English, in 1992.
Decision of the visa officer
[3] The visa officer assessed the applicant in the occupation of an Interpreter, NOC 5125.3. The visa officer concluded, based on the applicant"s training and experience, that she did not meet the employment requirements and that she lacked strong interpretation skills.
[4] The visa officer further assessed the applicant in the occupation of Administrative Clerk, NOC 1441.0.
[5] The visa officer noted that since the applicant did not have one year of full-time experience, she could not award her any units of assessment.
[6] The applicant"s spouse was also assessed in the occupation of Sales and Representatives, Wholesale Trade (Non-Technical), but failed to earn the required units.
[7] The visa officer, having determined that the applicant was a member of the class of persons who are inadmissible to Canada as described in paragraph 19(2)(d) of the Immigration Act, refused the application.
The applicant"s position
[8] The applicant indicates that the visa officer told her at the end of the interview that she will be refused because she did not have a bachelor"s degree in translation or interpretation. The CAIPS notes relate the same thing.
[9] It is submitted that the visa officer refused to exercise her jurisdiction or applied the wrong standard when she failed to give any meaning to the words "or a related discipline".
[10] It is also submitted that in administering the interpretation test, the visa officer misinterpreted the NOC requirement.
[11] It is further submitted that the existence of friends or relatives in Canada and the applicant"s level of knowledge of employment requirements are irrelevant considerations to a determination of whether she is able to meet situations or is capable of devising ways or means.
The respondent"s position
[12] The respondent notes that a degree in English would not automatically be related to translation. Here the evidence illustrated that the applicant had one course in translation and one course in interpretation. The respondent submits that it was open to the visa officer to make the factual finding that the English degree did not qualify as a related discipline and therefore should not be the subject of judicial review.
[13] The visa officer administered the simultaneous translation test, but the applicant did not do well.
Issue
| [14] 1 - Did the visa officer err in failing to give any meaning to the words "or a related discipline" as found in the employment requirements for a translator under the NOC? |
| 2 - Did the visa officer err in misinterpreting the NOC requirement for interpretation test? |
Analysis
[15] The NOC indicates that translators, terminologists and Interpreters, NOC 5125 need to meet the following employment requirements in order to qualify:
| A bachelor"s degree in translation or a related discipline is required, and specialisation in interpretation, translation and terminology at the graduate level is usually required. |
[16] The CAIPS notes indicate:
| BA degree majoring in English and not in translation. Does not meet employment requirements. Although worked as interpreter for Chongqing Pepsi-Tianfu Beverage Co. Ltd for almost 3 yrs doing interpretation work, not satisfied PI is qualified to undertake occupation as a interpreter in CDA. |
[17] In Xiao v. Canada (M.C.I.), (December 13, 1999) IMM-1845-99 (T.D.), a case similar to the present, I held:
| The visa officer concluded that the applicant did not have a bachelor"s degree in translation. Instead of determining whether she had a bachelor"s degree in a related field, the visa officer went on to conclude that she did not have a graduate degree in a related discipline. In my view, the visa officer misinterpreted this requirement. It is not necessary for the purpose of this requirement to have a graduate degree in a related discipline, a bachelor"s degree in a related discipline will suffice. |
[18] The visa officer had an obligation to determine if the English degree was related discipline. Although the applicant"s transcript was before the visa officer, there is no evidence that she turned her mind to determine if the courses taken within the degree could qualify as a related discipline. In my opinion, the visa officer misinterpreted the NOC requirement and adopted a more stringent approach. In doing so she erred.
[19] In spite of her conclusion that the applicant did not meet the employment entry requirements, the visa officer administered a simultaneous interpretation test. It is recorded in the CAIPS:
| Interpretation test given but PI could not do simultaneous interpretation well. I could not understand some of the sentences which she interpreted and had to ask to do repeat her interpretation again to clarify her meanings. Interpretation skills not strong enough to undertake occupation in CDA. |
[20] Pursuant to the NOC (5125 translators, terminologists and interpreters)
| "Interpreters perform some or all of the following duties: |
| - interpret oral communication from one language to another either simultaneously (as the speaker speaks) or consecutively (after the speaker speaks)"1 |
[21] In the absence of a standard test, I am concerned of how the visa officer could be in a position to assess the employment skills of an applicant.
[22] The visa officer says only that: "PI could not do simultaneous interpretation well". She says nothing about interpretation of oral communication consecutively .
[23] The skills should be stronger for "simultaneous" interpretation than "consecutive" interpretation.
[24] In my view, the visa officer misinterpreted the NOC requirement by administering the interpretation test as she did.
[25] In my view, that constitutes a reviewable error.
[26] For those reasons, this judicial review application should be granted and the matter ought to be referred back for determination by a different visa officer.
(Sgd.) "Pierre Blais"
Judge
March 9, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2453-99
STYLE OF CAUSE: Mang Gao
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 8, 2000
| REASONS FOR ORDER OF Blais, J. |
DATED: March 9, 2000
APPEARANCES:
| Dennis Tanack For the Applicant |
| Kim Shane For the Respondent |
SOLICITORS OF RECORD:
Mr. Dennis Tanack
Barrister & Solicitor
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |