Date: 20010604
Court File No.: IMM-1685-00
Neutral Citation: 2001 FCT 580
Ottawa, Ontario, this 4th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
DANQUI LIU AND SUHUA PANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under s.18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 of a decision of a visa officer, Ms. Nicole Genest (the "visa officer"), dated March 6, 2000, wherein the applicant, Mr. Danqui Liu, was refused permanent residence in Canada.
[2] Although the principal applicant in the case at bar is the applicant's wife, Mrs. Suhua Pang, the only issues raised on judicial review of the visa officer's decision are in relation to the assessment of the applicant, Mr. Danqui Liu.
Facts
[3] The applicant is a citizen of China who applied for permanent residence in Canada in the independent category with an intended occupation of "Mechanical Engineer" (NOC 2132). On September 14, 1999, the applicant was interviewed by the visa officer in the City of New York, New York.
[4] The applicant was advised by letter dated March 6, 2000, that his application for permanent residence was refused. The applicant received a total of 66 units of assessment, short of minimum 70 units of assessment required pursuant to subparagraph 9(1)(b)(i) of the Immigration Regulations, 1978,SOR/78-72 (the "Regulations"). The visa officer assessed the applicant as follows:
Mechanical Engineer NOC 2132
FACTOR UNITS
Age 10
Occupation 05
Education/Training 17
Experience 06
ARE 00
Demographic Factor 08
Education 16
English 02
French 00
Relatives 00
Suitability 02
TOTAL: 66
[5] The applicant completed his bachelor's degree in engineering in 1987, and his masters in engineering in 1994. In the applicant's application for permanent residence, he indicates that he has experience working as an engineer from 1987 to 1997. The Canadian Council of Professional Engineers has favourably assessed the applicant's qualifications for immigration purposes.[1]
Issue
[6] The issue is whether the visa officer erred in granting 6 units of assessment for the applicant's experience and 2 units of assessment for the applicant's personal suitability. If so, the next question is whether these errors are material.
Analysis
[7] I am not prepared to intervene in the visa officer's assessment of the English and French language factors. This assessment was based on the officer's evaluation of the applicant's ability to express himself before her and on his ability to understand the language and write. I am satisfied that the officer committed no reviewable error in that assessment.
[8] In the visa officer's assessment of the applicant's experience, Factor 3 of Schedule 1 of the Regulations, the visa officer awarded the applicant 6 units of assessment. The visa officer states in her affidavit that she did not award the applicant points for the period from 1987 to 1991 because the applicant had just completed his bachelor's degree in engineering, and in China, someone with a bachelor's degree in engineering could only apply to be recognized as a professional engineer once he had worked full-time for five years. As the visa officer states in her affidavit:[2]
21. I assessed the applicant's work experience...I did not award him points for his claimed work experience as an engineer for the period 1987 to 1991 because he had only just completed his bachelor's degree in engineering and did not have at least five years of full-time experience. In China, the holder of a bachelor's degree in engineering could only apply to be recognized as a professional engineer once he had worked full-time for five years. In indicating that I gave the Applicant the benefit of the doubt, I meant that I awarded him the six points for experience from the period August 1994 to February 1997, as if he had completed three full years of work instead of merely two and a half years. That is, I could have chosen to award him only four points for two years of experience as he had not yet completed three full years of work as an engineer.
[9] The applicant argues that the visa officer's assessment of his experience is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before her. The applicant argues in particular that the visa officer failed to consider the applicant's experience as an engineer from 1987 to 1991 and from 1992 to 1994. The applicant submits that he has over four years of work experience, and therefore should have been granted 8 units of assessment rather than 6. The applicant argues that the work experience immediately after the applicant obtained a bachelor's degree can be taken into account despite not having 5 years of experience. The applicant argues that even if the visa officer was justified in not considering the applicant's experience from 1987 to 1991, that his experience from 1992 to 1994 should have been recognized by the visa officer.
[10] A visa officer is required to assess an applicant's experience in accordance with the NOC.[3]
The NOC description of a mechanical engineer lists the following duties against which the visa officer must assess the applicant's experience:
- Conduct research into the feasibility, design, operation and performance of mechanisms, components and systems
- Prepare material, cost and timing estimates, reports and design specifications for machinery and systems
- Design power plants, machines, components, tools, fixtures and equipment
- Supervise and inspect the installation, modification and commissioning of mechanical systems at construction sites or in industrial facilities
- Develop maintenance standards, schedules and programs and provide guidance to industrial maintenance crews
- Investigate mechanical failures or unexpected maintenance problems
- Prepare contract documents and evaluate tenders for industrial construction or maintenance
- Supervise technicians, technologists and other engineers and review and approve designs, calculations and cost estimates.
The visa officer did not assess the applicant's work experience from 1987 to 1991 because the applicant was not registered as a professional engineer in China given that he had not completed the required 5 years of work experience. In my view, the visa officer did not assess the applicant's experience in accordance with the NOC. Rather than asking if the applicant is registered as an engineer, the visa officer should have asked whether the applicant has experience performing the duties of a mechanical engineer as outlined in the NOC. The visa officer committed an error by not assessing the applicant's experience from 1987 to 1991 in accordance with the NOC.
[11] The visa officer committed another error by offering no explanation for not awarding the applicant points for his work experience as an engineer from 1992 to 1994. In the applicant's application, he indicates that from 1992 to 1994 he worked for Shenyang Polytechnic University in Shenyang, China. The respondent argues that because the applicant was completing his masters degree from 1991 to 1994, the visa officer did not accept that the applicant was entitled to points for experience during that period. Despite this argument, however, the visa officer did not address this point in her affidavit or in the CAIPS notes. Given that the applicant meets all of the requirements under the NOC for that time period, the visa officer erred in not awarding the applicant points for his work experience from 1992 to 1994.
[12] Given that the applicant was entitled to 8 units for the experience factor, this would have given the applicant a total of 68 units as opposed to 66 units. The applicant is 2 units short of the minimum 70 units of assessment. However, the applicant also argues that the assessment of his personal suitability, in which he was awarded 2 units out of a possible 10 units, was unreasonable. The applicant submits that this assessment was unreasonable given the applicant's positive assessment by the Canadian Council of Professional Engineers, his work experience, and the ability of his spouse, who holds a master's degree, to settle well in Canada.
[13] I accept the applicant's contention and after carefully reviewing the evidence I find that the visa officer failed to properly apply the criteria of adaptability. Adaptability is a forward looking element and a proper assessment would, in my view, have seen a score higher than 2 units out of a possible 10 units.
[14] Although I will not speculate on the number of units that should be awarded to the applicant for personal suitability, I am satisfied that the visa officer's errors in the assessment of the applicant's experience, coupled with the unreasonable assessment of the applicant's personal suitability, are material errors.
[15] The application for judicial review will be allowed. The decision of the visa officer dated March 6, 2000 will be quashed and the matter will remitted to a different visa officer for redetermination.
[16] The applicant submitted a question to be certified, however, upon review of the question and the written submissions of the respondent, I find that the question does not raise a serious question of general importance in accordance with subsection 83(1) of the Immigration Act, R.S.C. 1985, c. I-2.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed. The decision of the visa officer dated March 6, 2000 is quashed and the matter is remitted to a different visa officer for redetermination.
"Edmond P. Blanchard"
Judge