Date: 19990930
Docket: IMM-216-99
BETWEEN:
XIAOMING ZHANG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
GIBSON, J.
- [1] These reasons arise out of an application for judicial review of a decision of a visa officer determining that the applicant did not meet the requirements for immigration to Canada in the occupation of "electrical engineer". The decision of the visa officer is dated the 10th of December, 1998.
| [2] The applicant is a citizen of the People"s Republic of China. Through an immigration agent, he filed an application for immigration to Canada as an independent worker in the occupation of telecommunications line and cable worker. On the 20th of August, 1998, after the applicant had been scheduled for an interview in connection with his application, his immigration agent wrote to the Immigration Section of the Canadian Consulate General in Hong Kong, in part to the following effect: |
| Please be advised that Mr. Zhang has received an acceptable result of his informal assessment of qualifications for engineer... . After close scrutiny of Mr. Zhang"s education background and experience, we find that his qualifications are closer to those of an electronic engineer. ... |
. . . .
| Grateful if the designated immigration officer could take note of this change in processing the application in concern. Should you have any questions or concerns, please feel free to contact us. |
The material before the Court discloses nothing to indicate that the visa officer, prior to the interview, availed herself of the opportunity to clarify the requested "... change in processing the application in concern."
| [3] From 1985, the applicant was employed as a telecommunications line and cable worker in China. His duties included many of the duties of such a worker as described in the National Occupations Classification where the following duties, among others, are listed: installing, removing, maintaining and repairing aerial and underground telephone and other telecommunication transmission and distribution lines, cables and associated hardware; installing (but not repairing or maintaining) cable television lines and cables; inspecting and testing telecommunications transmission lines and cables for transmission characteristics and locating faults. |
| [4] From 1982 to 1985, the applicant worked as an engineer with the China National Offshore Oil Corporation where his duties included a general and overall responsibility for the installation, repair and maintenance of undersea telecommunications lines, and the supervision of one assistant. The applicant had earned a bachelor"s degree in engineering in 1978. |
| [5] In his affidavit filed in support of this application, the applicant attests: |
| 6. During the interview I was asked if I wanted my intended occupation in Canada to be changed to Electronic Engineer. When the visa officer put that question to me, however, I was not told that I could be assessed alternatively in more than one occupation. From the way the question was put to me I understood that I could be assessed either as an Electronics Engineer or as a Telecommunications Line and Cable Worker, but not as both. If the visa officer would have told me [sic] that I could have been assessed under both occupations I would have requested that I be assessed under both occupations. |
| [6] In the letter conveying the decision under review, the visa officer awarded the applicant a total of 57 units of assessment when 70 units are required for an applicant to be successful. |
| [7] The visa officer wrote: |
| Subsection 11(1) of the Regulations sets out that a visa officer shall not issue a visa to an immigrant, if that immigrant fails to earn at least 1 unit of assessment for experience. Unfortunately you do not have one year of full-time experience, or the equivalent in this occupation [Electrical Engineer], and so I cannot award you any units of assessment for experience. I consider the units of assessment that you have earned are an accurate assessment of your ability to successfully establish in Canada. |
| Based on the breadth and scope of your description of your responsibilities from 1982, I am not satisfied that you have any experience as an Electrical Engineer and was therefore unable to award any units of assessment for experience. |
The decision letter makes no reference whatsoever to assessment of the applicant in the occupation of telecommunications line and cable worker, although the visa officer, in her affidavit filed on this application, attests:
| 6. I referred to the CAIPS Record Summary throughout the Applicant"s interview. Because I had assessed the Applicant"s English abilities as "with difficulty", and had allocated him zero units of assessment under Factor 8, English and French Language Ability, and because I had concluded that the appropriate number of units of assessment under Factor 9, Personal Suitability, was 2, I was cognizant of the fact that the Applicant would not receive sufficient points to qualify in the intended occupation of Telecommunications Line and Cable Worker.... |
| [8] Counsel for the applicant described the issues on this application for judicial review in the following terms: |
| Did the visa officer err in finding that the applicant"s responsibilities from 1982 to 1985 were not inherent to the duties of an Electronic Engineer. |
| Did the visa officer err in law in not assessing the applicant in an alternative occupation that was referred to in the application for permanent residence. |
| [9] The applicant seeks an order quashing the decision under review and requiring the respondent to process the applicant"s application for permanent residence in a favourable manner, or, in the alternative, referring the matter back to a different visa officer for a redetermination of the applicant"s application in a manner consistent with reasons of this Court. |
| [10] I am satisfied that the visa officer made no reviewable error in her assessment of the applicant in the occupation of electrical engineer. Although more weight might have been given to certain of the duties of that occupation as described in the National Occupational Classification, I am not satisfied that the manner in which the visa officer treated the applicant"s experience between 1982 and 1985 resulted in reviewable error. I reach this conclusion particularly given that his experience was in a limited environment and a substantial number of year prior to the interview. |
| [11] I reach a different conclusion with respect to the failure of the visa officer to formally assess the applicant in the occupation originally identified in his application to come to Canada, namely, that of telecommunications line and cable worker. That occupation, which is an occupation apparently closely equivalent to the occupation that he had been pursuing in the People"s Republic of China for something in the range of 13 years at the time of his interview, was not clearly and unequivocally abandoned by the applicant. |
| [12] In Gaffney v. Canada (Minister of Employment & Immigration)1, Mr. Justice Mahoney wrote at page 187: |
| On a plain reading..., it seems clear that the visa officer considered that his duty to assess alternative occupations was limited to a category, and did not extend to occupations in other categories which an immigrant was both qualified and willing to follow. |
Mr. Justice Mahoney continued and concluded at page 189:
| Likewise, in another of the appeals heard serially with this ..., this Court found that a visa officer has the duty to assess an application with reference to the occupation represented by the applicant ... as the one for which he or she is qualified and prepared to pursue in Canada. That duty, in my view, extends to each such occupation. [citation omitted] |
| [13] In Olajuwon v. Canada (The Minister of Citizenship and Immigration)2, Mr. Justice MacKay wrote: |
| In the case at bar, the applicant specifically requested that he be assessed in relation to two occupations. In the letter rejecting his application, only one of those was addressed by the visa officer and there is no evidence except for the later affidavit of the visa officer that the applicant was in fact assessed in relation to the occupation Tour Operator for which he had specifically requested assessment. The visa officer has a duty to assess an applicant for permanent residence in the occupations for which he requests assessment and the results of that assessment are to be set out, in any letter rejecting the application, for one or more occupations for which the applicant requests assessment. |
I am satisfied that the same can be said here, albeit that there was at least some doubt as to whether the applicant was seeking assessment in alternative occupations or had withdrawn the first occupation in which he sought assessment and substituted another. Given the ambiguity, and given the somewhat ambiguous exchange quoted above from the applicant"s affidavit on this application, which exchange took place during the course of an interview at which the applicant was relying on an interpreter, I am satisfied that the onus remained on the visa officer to fully assess the applicant in both occupations and to set out the results of those assessments in any letter rejecting the applicant"s application.3
| [14] In Goussev v. Canada (Minister of Citizenship and Immigration)4, Madame Justice Reed wrote at paragraph 14: |
| Counsel for the respondent referred me to the jurisprudence that has stated that an informal or preliminary assessment by a visa officer does not constitute an assessment of the applicant and that a visa officer has a duty to carry out an assessment of an applicant in the person"s intended occupation; ... I do not understand this jurisprudence to require a visa officer to continue an assessment in a given occupational category after it has become clear that the applicant cannot obtain the required number of points to be granted landing. For example, if there is a requirement that at least one point be awarded under a given factor, and the visa officer determines that the particular individual be awarded zero under that factor, the visa officer is not required to continue a pointless exercise of evaluating the other factors. An assessment has been done. [citations omitted] |
I am not satisfied that the foregoing statement by Madame Justice Reed is inconsistent with earlier decisions to which I have referred. Certainly, if her words are restricted to the example given by her, her words can be distinguished from the facts of this matter. If her statement is broader in character, I am not satisfied that the "informal or preliminary assessment" attested to by the visa officer on the facts of this matter is sufficient to fall within Madame Justice Reed"s words.
| [15] For the foregoing reasons, this application for judicial review will be allowed. The decision of the visa officer under review will be set aside and the applicant"s application for permanent residence in Canada will be referred back to the respondent for reconsideration and redetermination by a different visa officer. |
| [16] Counsel for the applicant did not recommend certification of a question. Counsel for the respondent requested an opportunity to make submissions on certification, based upon draft reasons. I am not satisfied that this matter raises a serious question of general importance not already addressed by decisions of the Court of Appeal and this Court. No question will be certified. |
| (Sgd.) Frederick E. Gibson |
September 30, 1999
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-216-99
STYLE OF CAUSE: XIAOMING ZHANG
v.
MCI
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING: SEPTEMBER 27, 1999
| REASONS FOR ORDER OF GIBSON, J |
DATED: SEPTEMBER 30, 1999
APPEARANCES:
| MR. DENNIS TANACK FOR THE APPLICANT |
| MR. MARK SHEARDOWN FOR THE RESPONDENT |
SOLICITORS OF RECORD:
DENNIS TANACK
BARRISTER & SOLICITOR
| VANCOUVER, BC FOR THE APPLICANT |
MORRIS ROSENBERG
DEPUTY ATTORNEY
| GENERAL OF CANADA FOR THE RESPONDENT |
__________________
1 (1991), 12 Imm.L.R. (2d) 185 (F.C.A.).
2 (1998), 150 F.T.R. 158.
3 See the comments of Mr. Justice Evans, which I interpret to be to the same effect, in Adami v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 669 (Q.L.), (F.C.T.D.).
4 [1999] F.C.J. No. 1402 (Q.L.), (F.C.T.D.).