Date: 19981130
Docket: IMM-1158-98
BETWEEN:
ZHIHONG 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 to deny the applicant's application for permanent residence in Canada. The decision under review is contained in a letter dated the 11th of February, 1998. That letter reads in part as follows:
| I refer to your application for permanent residence in Canada. I have assessed your application pursuant to subsection 8(1) of the Immigration Regulations, 1978, and have determined that you do not meet the requirements for immigration to Canada. |
| My assessment of your occupation was conducted according to the Canadian Classification and Dictionary of Occupations and the National Occupational Classification. You requested assessment in the following occupation: |
| Executive Secretary CCDO 4111 111 |
| I have carefully assessed and investigated your training and experience in the occupation listed above based on the information you provided in your application, and have concluded that you are not qualified to work in this occupation in Canada, as you do not have the minimum qualifications specified in the Canadian Classification and Dictionary of Occupations. I have considered whether the occupation of Executive Secretary is one in which you are "qualified for and prepared to follow in Canada", in accordance with Item 2 of Schedule I of the Immigration Regulations, 1978. I would note that the occupation of Executive Secretary carries a Specific Vocational Preparation value of 15, which entails more than two years and up to and including four years of formal occupational education or training in order to be considered as qualified in this occupation. There is nothing in your formal application form or supporting documentation to suggest that you have any formal occupational education or training at all in the occupation of Executive Secretary. As a result, I am not satisfied that the occupation of "Executive Secretary" is one in which you are qualified for and prepared to follow in Canada, in accordance with Item 2 of Schedule I of the Immigration Regulations, 1978. |
[2] The applicant is from Shanghai, China, although at the time she submitted her application for permanent residence, she was in Canada. She has a four year Bachelor of Arts degree from Fudan University and, at the time she submitted her application, she had been employed for almost four years in Shanghai as an Executive Secretary. Her application for permanent residence was submitted in a rush on the last day on which the system of evaluation based upon the Canadian Classification and Dictionary of Occupations (the "CCDO") was in effect, to ensure consideration under that system. In the result, the application and supporting documentation was, it was acknowledged, somewhat sparse in the information it provided. The solicitor's letter covering the application and documentation sent from Toronto to the Canadian Consulate at Buffalo noted:
| Further documentation will be forwarded as soon as I receive a file number. |
[3] According to the applicant's record, further documentation was submitted under cover of a solicitor's letter dated the 29th of September, 1997. There is some evidence, also in the applicant's record, to indicate that the letter and the related material were couried to the Canadian Consulate at Buffalo. That evidence is inconclusive. Whatever may be the case, the letter and additional material is not in the Tribunal record and was not before the Visa Officer at the time she took the decision that is under review.
[4] The Visa Officer awarded the applicant seven (7) units of assessment for specific vocational preparation ("SVP") and four (4) units of assessment for experience. In total, the Visa Officer awarded the applicant fifty-eight (58) units of assessment when sixty (60) units was required in order to entitle the applicant to an interview under the terms of paragraph 11.1(a) of the Immigration Regulations, 19781. In the result, the applicant was not provided an interview.
[5] The issues properly before the Court were the following:
| A) did the Visa Officer commit a reviewable error when she determined the applicant was not qualified for consideration as an Executive Secretary on the ground that the applicant did not have the required specific vocational preparation? |
| B) did the Visa Officer deny the applicant procedural fairness when the Officer refused the applicant's application without an interview and without advising the applicant of her concerns and providing an opportunity to respond, when the Visa Officer had before her evidence that implied that the applicant had the required specific vocational preparation? |
[6] Subsection 8(1) of the Immigration Act 2 provides that a person such as the applicant has the burden of proving that she or he has a right to come into Canada or that her or his admission would not be contrary to the Act and the related regulations. It was not in dispute before me that, given that the material allegedly submitted at the end of September, 1997 was not before the Visa Officer, the material that the Visa Officer had for consideration was sparse as to the applicant's specific vocational preparation. That being said, the material clearly indicated that the applicant had almost four (4) years of experience as an Executive Secretary, albeit that her duties in that employment were not described in a manner that allowed her functions in her employment to be compared to those of an "Executive Secretary" as described in the CCDO. Based upon the material that was before the Visa Officer, I cannot conclude that the Visa Officer made any reviewable error in determining that there was nothing "...in your formal application form or supporting documentation to suggest that you have any formal occupational education or training at all in the occupation of Executive Secretary."
[7] That being said, I turn to the question of the duty of fairness owed to the applicant by the Visa Officer.
[8] Specific vocational preparation is addressed in Appendix B to the CCDO. That Appendix provides that specific vocational preparation "includes" training given at the University or College level, vocational training, apprenticeship training, on-the-job training and experience in other jobs. The Visa Officer reviewed the applicant's University training and, quite properly I conclude, reached an opinion that most of the applicant's University training could not be described as specific vocational preparation for the job of an Executive Secretary. The material before the Visa Officer indicated no other training or preparatory experience received by the applicant of a nature described in Appendix B to the CCDO.
[9] But that is not the end of the matter. Appendix B is not an exclusive description of what can qualify as "specific vocational preparation". The opening words of that Appendix make it clear that the forms of training, apprenticeship and experience in other jobs enumerated in the Appendix are merely examples of what can constitute specific vocational preparation. It is not inconceivable that the applicant's experience as an Executive Secretary in Shanghai could have constituted specific vocational preparation although whether it did or not was not apparent on the material that was before the Visa Officer.
[10] In Chatrova v. Canada (Minister of Citizenship and Immigration)3, Madame Justice Reed wrote:
| Counsel for the respondent argues that it is for the applicant to prove her skills. That is so, but, in the circumstances of this case, I think she is entitled to be alerted to the fact that her self assessment is being questioned before a burden falls on her to provide further evidence in this regard. |
[11] I think the same can be said here, although the issue is "specific vocational preparation" rather than "skills" and it is not the applicant's self assessment that it is being questioned, but rather the lack of evidence of specific vocational preparation. The Visa Officer was aware, or should have been aware, that the applicant's application was filed at the last moment for filing to take advantage of the CCDO system of evaluation. The letter covering the applicant's application made it clear that the applicant intended to submit further documentation. In the very specific circumstances before me, while there was certainly no obligation on the part of the Visa Officer to provide the applicant with an interview, I am satisfied that the duty of fairness owed to the applicant extended to an obligation on the part of the Visa Officer to advise the applicant of her concerns and to provide the applicant with an opportunity to respond to those concerns. If this had been done, at the very least, the supplementary submissions that would appear to have gone astray would have been brought to the attention of the Visa Officer.
[12] For the forgoing reasons, this application for judicial review will be allowed, the decision of the Visa Officer that is under review will be set aside and the matter will be referred back to the respondent for redetermination of the applicant's application for permanent residence in accordance with the Canadian Classification and Dictionary of Occupations. The applicant will have sixty (60) days from the date of my order to submit supplementary material to be taken into account on the reconsideration.
[13] At the close of the hearing of this matter, I agreed to distribute draft reasons and provide counsel an opportunity to make submissions on certification of a serious question of general importance. Draft reasons were distributed.
[14] Counsel for the respondent submits that the following question should be certified:
| Where an applicant files an application with incomplete supporting information has the applicant met the burden of proving her application for permanent residence, or is there a duty on the visa officer to give the applicant a further opportunity to clarify or explain the evidence that has been submitted? |
[15] Counsel for the respondent indicates in his submissions that there is "... a line of caselaw from the Trial Division which stands for the proposition there is no general obligation on a visa officer to make further inquiries when an application is ambiguous."[Emphasis added]. Counsel for the applicant submits that this case raises no issue of general importance that would warrant certification of a question as, as indicated earlier in these reasons, the Court's decision is based on "the very specific circumstances" of this particular application.
[16] I am in agreement with the position of counsel for the applicant. The decision in this matter turns on the very specific circumstances of the applicant and on the timing of her application. While the question proposed by counsel for the respondent is undoubtedly a serious question, based on the facts of this matter, a question of general importance does not arise.
[17] No question will be certified.
"Frederick E. Gibson"
Judge
Toronto, Ontario
November 30, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1158-98
| STYLE OF CAUSE: ZHIHONG ZHANG |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, NOVEMBER 18, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: MONDAY, NOVEMBER 30, 1998
APPEARANCES:
Ms. Nancy Myles Elliott
For the Applicant
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD:
Nancy Myles Elliott
| Barrister & Solicitor |
| 130 Bloor Street West |
| Suite 601 |
| Toronto, Ontario |
| M5S 1N5 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981130
Docket: IMM-1158-98
Between:
| ZHIHONG ZHANG |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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