Date: 19990728
Docket: IMM-4559-98
BETWEEN:
ZHOU YAN
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
DENAULT J.:
[1] This is an application for judicial review of the decision of an immigration officer (the "officer") dated July 27, 1998, wherein the applicant's application for permanent residence was refused.
[2] On November 10, 1997, the applicant submitted an application for permanent residence in Canada to the Canadian Consulate General in Hong Kong. The application indicated that the applicant's intended occupation in Canada was that of a pathologists' assistant. On July 24, 1998, the applicant attended a personal interview with an immigration officer. At this interview, the officer informed the applicant of the reasons for the refusal of his permanent residence. By letter dated July 27, 1998, the officer indicated that the application was denied based on the following units of assessment in the occupation of medical laboratory technician:
| Age Occupational Demand Education/ Training Factor Experience Arranged Employment Demographic Factor Education English French Personal Suitability Total |
|
|
[3] The applicant first submits that the officer did not correctly assess him under his intended occupation of pathologists' assistant. In the applicant's opinion, the officer wrongly assessed him by only using the National Occupational Classifications ("NOC"), Career Handbook, failing to use the NOC, occupational descriptions, which define the main duties and functions of a pathologists' assistant, and ignoring his job description as evidenced by the Director of Pathology Department he had been working with for nine years (p. 17 of the Applicant's Record).
[4] In response to that argument, the respondent argues that, since the applicant was not able to answer to the officer easy questions about the pathologists' assistant functions, it was open to the officer to conclude that the applicant had no experience as a pathologists' assistant. The respondent also submits that the officer properly asked questions to the applicant based on the pathologists' assistant functions found in the occupational descriptions of the NOC, as experienced by the officer's computer assisted immigration processing system ("CAIPS") notes indicating that the officer had in mind the pathologists' assistant functions when she questioned the applicant with regard to his experience.
[5] Secondly, the applicant submits that the officer wrongly assessed him as a medical laboratory technician. The respondent replies that the evidence showed that the day-to-day activities of the applicant were closer to those of a medical laboratory technician for which he was assessed 4 points for experience.
[6] Lastly, regarding the "Personal Suitability" factor, the applicant submits there was a denial of procedural fairness in his assessment because the officer showed a bias towards the fact that he was employed by a "state run facility". Regarding this submission, the respondent submits it could only have been an improper statement by the officer, not a denial of procedural fairness, and that, under the circumstances, the Court's intervention is not warranted.
[7] In spite of the able argument by counsel for the applicant, this Court's intervention, in my opinion, is not warranted in so far as there is no "error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative assessment" (Hajariwala v. Canada [1989] 2 F.C. 79, at p. 83-84).
[8] In my view, the officer correctly assessed the applicant under his intended occupation as a pathologists' assistant. In her decision, the officer explained that she was not satisfied that the applicant had experience as a pathologists' assistant based on his description of his function. Being called to describe his day-to-day activities, the applicant explained that his duties included preparing stained cell specimens, mainly of bone marrow, studying them under a microscope, conducting cell counts and analysis1. In his written test to assess his language ability, the applicant wrote: "My works mainly consist of pathology research and analysing" (p. 67 of the Applicant's Record). Comparing those occupation descriptions with the occupation descriptions given in the NOC, it was open to the officer to conclude that the applicant's duties were not those of a pathologists' assistant and that they were closer to those of a medical laboratory technician, even though she was under no obligation to make such an alternative assessment2.
[9] As to the personal suitability factor, the visa officer had these comments about the applicant in her CAIPS notes:
| PI and wife failed to demonstrate adaptability through work or travel outside of the PRC. When asked about his knowledge Canada and the employment situation, PI was unable to describe details; he did not even demonstrate interest in researching the country he intends to settle. This indicated weak initiative. PI's career has been restricted to state organization, where he was assigned a position, without trying to secure a position with other private or joint venture enterprises through his own merits. This indicated lack of resourcefulness. |
Still, she assessed 4 points for personal suitability.
[10] In my view, the visa officer's comment about the applicant being employed by a "state run facility" or organization in a country like China, under a communist regime, is not indicative of a lack of resourcefulness. This comment was improper and irrelevant. However, by itself, this comment does not warrant the Court's intervention in so far as the applicant, having being assessed 0 point for experience in his intended occupation, and 0 point for occupational factor as a medical laboratory technician, was not admissible as a permanent resident pursuant to section 11(1) and (2)(a) of the Immigration Act.
[11] I conclude that the judicial review must be dismissed. Neither party suggested the certification of a serious question.
Pierre Denault
Judge
MONTREAL (QUEBEC)
July 28, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19990728
Docket: IMM-4559-98
BETWEEN:
ZHOU YAN
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4559-98
STYLE OF CAUSE: ZHOU YAN
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: JULY 26, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE DENAULT
DATED: JULY 28, 1999
APPEARANCES:
Ms. Sylvie Tardif for the Applicant
Ms. Marie-Claude Demers for the Respondent
SOLICITORS OF RECORD:
Brownstein, Brownstein & Associates for the Applicant
Westmount, Quebec
Morris Rosenberg
Deputy Attorney General for the Respondent
of Canada
__________________1 Visa officer's affidavit (Applicant's Record p. 24 parag. 12).
2 Mahrez v. M.C.I., F.C., IMM-2117-97, March 25, 1998, Judge Pinard; Khoja v. M.C.I., F.C.T.D., IMM-998-96 January 28, 1997, Judge McKeown.