Date: 19990416
Docket: IMM-1024-98
BETWEEN:
KANGGUAN WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
A. INTRODUCTION
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 [as amended] by Kangguan Wang ("the applicant"). He requests the Court to review and, among other things, set aside a decision by a visa officer, communicated to him in a letter dated February 20, 1998, refusing his application for a visa to enter Canada as a permanent resident.
| B. FACTUAL BACKGROUND |
[2] The applicant is 43 years old; he is a citizen of the People"s Republic of China and was born in Changle, Fujian Province, where he lived until 1990. He obtained a secondary school diploma in 1975, worked in restaurants and, in 1984, received a certificate on the successful completion of a one year vocational program at the Fuzhou Civic Cook General School. He stated that, after graduating from the cooking school, he was employed until 1990 as a senior chef in the restaurant of a hotel in Changle.
[3] He entered the United States in 1990 and made a refugee claim, which was rejected. He has since remained there without status. He has been employed at the same Chinese restaurant in New York City since 1991, where he has been head chef since 1993.
[4] In his application for an immigrant visa for Canada in the Assisted Relative Class, the applicant gave his intended occupation as "head chef". He was interviewed in February 1998 by a visa officer at the Canadian Consulate General in Detroit, who awarded him sixty units of assessment, including four for personal suitability. He thus did not obtain the sixty-five units of assessment normally required by paragraph 10(1)(b) of the Immigration Regulations, 1978, S.O.R./78-172 [as amended] (the "Regulations") for applicants for permanent residence status in the Assisted Relative Class.
[5] The applicant"s counsel, Mr. Leahy, canvassed a wide range of errors that he alleged that the visa officer had made in reaching her decision. In my opinion, the most significant of these are procedural in nature. Cumulatively, they constitute a denial of procedural fairness and have so tainted the decision-making process that the refusal to issue the visa should be set aside. I shall deal briefly with each of these procedural defects.
C. ISSUES AND ANALYSIS
1. Educational assessment
[6] The visa officer awarded the applicant ten units of assessment under the Education Factor in Schedule 1 of the Regulations. On the basis of the information before her, the visa officer concluded that the applicant fell within paragraph 1(c)(i) of Factor 1 as a person who had completed one year of post-secondary education, for which a secondary school diploma was a pre-requisite. She refused to award him the thirteen units that are assigned by paragraph 1(c)(ii) to those who have completed a post-secondary program for which a secondary school diploma "that may lead to entrance to University in the country of study" is required for admission (paragraph 1(b)(ii) ).
[7] Apparently relying on a document issued by the Canadian Embassy in Beijing, the officer stated that the applicant"s secondary school diploma did not qualify him for university entrance because he had not written the national examinations, on the strength of which university entrance in China is determined.
[8] In my opinion, it was procedurally unfair for the visa officer to rely on this document because it was not first disclosed to the applicant for comment. Moreover, there seems to be some confusion about whether the applicant"s secondary school diploma "might" have led to university entrance, in that it might have qualified him to write the national examinations on the basis of which candidates are actually admitted to particular universities.
[9] If the visa officer was correct in her view that the secondary school diploma awarded to the applicant might not lead to university entrance, visa applicants from China should be advised to include with their application the documentation necessary to enable visa officers to determine whether their qualifications might lead to university entrance. The checklist given to the applicant did not specify that he include documents other than the diplomas.
2. Experience assessment
[10] Mr. Leahy argued that the manner in which the visa officer assessed the experience of the applicant, and concluded that he did not have experience in the occupation of head chef, was procedurally unfair.
[11] First, when the visa officer was questioning the applicant about his experience as a "senior grade" chef in China, she told him that she had a document that made it clear that this position was only available in China to a person who had worked for five years as a "middle grade" chef. Since the applicant had told her that he had previously worked in restaurants, but not as a chef, she concluded that he was not qualified to be employed as a "senior grade" chef immediately on graduating from the cooking school, as he alleged. The visa officer stated that, at this point, the applicant changed his story and said that he had been employed as a cook in restaurants before entering the vocational program.
[12] Again, it was a breach of the duty of fairness for the visa officer not to show to the applicant the document on which she was relying, so that he might, for example, comment on the accuracy of the translation of the original Chinese document on which it was allegedly based. The fact that the visa officer had reason to doubt Mr. Wang"s credibility on the basis of his response to the document does not negate the procedural impropriety of failing to disclose it to him.
[13] On the other hand, I do not accept Mr. Leahy"s submission that it was unreasonable for the visa officer to consider whether the applicant had the qualifications necessary in China for a person to be employed as a "senior grade" chef. This information is relevant to assessing the credibility of the applicant"s claim that he held this position. The fact that a person might qualify in a shorter time for a position of equivalent seniority in Canada, or elsewhere, is simply irrelevant in this context.
[14] Second, Mr. Leahy alleged that questions put by the visa officer to Mr. Wang about his employment experience in New York were unfair. For example, after the applicant replied to the visa officer"s question as to how he would prepare a particular dish on the menu that he had submitted, she appears from her notes to have regarded the answer as of little probative value of the nature of the applicant"s employment duties because it was "a straight forward shrimp dish". It is surely unfair to ask a question that cannot be answered in a way that proves what the question is attempting to discover, and then to regard the answer as unsatisfactory. The problem was with the question, not with the answer.
[15] The visa officer concluded from the answers given by the applicant about his "daily duties" at the restaurant where he is currently employed that he does not perform enough of the duties listed for the occupation of head chef in the Canadian Classification and Dictionary of Occupations ("the CCDO") to have experience in his intended occupation. In my view, this conclusion was open to the visa officer on the basis of the answers that the applicant gave to her questions.
[16] However, I agree with Mr. Leahy that the questions put by the officer were not sufficiently clear to elicit the information that she was seeking. In particular, the focus of her questions was on the applicant"s "daily duties" at the restaurant, and this may explain why he did not volunteer information about other duties that he performed that were not "daily", but are included in the CCDO"s description of the occupation of head chef.
[17] It is important for visa officers not to forget that ensuring that qualified applicants are issued with visas is just as important as screening out those who do not satisfy the statutory selection criteria. The propriety of visa officers" questions is thus subject to judicial scrutiny to ensure that they are reasonably calculated to elicit relevant information from people who may have no proficiency in either of Canada"s official languages, or who are the product of cultures where ordinary citizens" encounters with public officials are intimidating experiences and not occasions for telling one"s story in a forthcoming and open manner.
D. CONCLUSION
[18] For these reasons, this application for judicial review is granted, and the applicant"s visa application is remitted to be determined by a different visa officer. I express no opinion on any of the other submissions made in this matter on behalf of the applicant.
[19] Since I was not satisfied that either of the questions proposed by Mr. Leahy met the statutory criteria under subsection 83(1) of the Immigration Act of being "a serious question of general importance", I have not certified a question for appeal.
[20] Having considered the factors set out in Rule 400(3) of the Federal Court Rules, 1998, S.O.R./98-106, I do not accept Mr. Leahy"s submission that costs be awarded to the applicant. I wish to make it quite clear that, while I have granted this application for the reasons that I have given, I do not subscribe to the negative characterization of the competence and integrity of the visa officer involved in this case that is contained in Mr. Leahy"s written submissions.
TORONTO, ONTARIO "John M. Evans"
APRIL 16, 1999 J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1024-98
| STYLE OF CAUSE: KANGGUAN WANG |
and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, JANUARY 27, 1999
PLACE OF HEARING: TORONTO, ONTARIO
DRAFT REASONS FOR ORDER BY: EVANS J.
DATED: FRIDAY, APRIL 16, 1999
APPEARANCES: Mr. Timothy Leahy
For the Applicant
Ms. Marissa Bielski
For the Respondent
SOLICITORS OF RECORD: Timothy Leahy
Barrister & Solicitor
408-5075 Yonge Street
Toronto, Ontario
M2N 6C6
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990416
Docket: IMM-1024-98
Between:
| KANGGUAN WANG |
| Applicant |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER