Date: 20000316
Docket: IMM-4953-98
BETWEEN:
YAN WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] Yan Wang, a citizen of the People"s Republic of China, seeks judicial review of the refusal of her application for permanent residence as an independent immigrant in her intended occupation as a chemical engineer (NOC 2134). The visa officer determined that Ms. Wang did not qualify as a chemical engineer. She was then assessed as an applied chemical technologist (NOC 2211.1) for which she was awarded 67 units.
[2] Ms. Wang was interviewed in Hong Kong on May 26, 1998 and the visa officer"s letter of decision is dated May 27, 1998.
[3] This application was heard together with two other similar proceedings under court file nos. IMM-4952-98 and IMM-4954-98. The applicants, represented by the same counsel, raise one issue common to the three files. There are sufficient other factual differences among the cases, however, to warrant three separate sets of reasons.
[4] In each of the three cases, counsel for the applicants argues that the visa officer did not give sufficient weight to the Informal Assessment of Qualifications for Engineers issued by the Canadian Council of Professional Engineers ("CCPE").
[5] The informal assessment from the CCPE is obtained upon payment of $175. Candidates complete a short form which discloses their engineering education and their certification as a professional engineer in their country of citizenship. The CCPE also requests applicants to submit a short curriculum vitae.
[6] The informal assessment by the CCPE can have one of two results: (1) "Qualifications not acceptable" or (2) "Qualifications appear acceptable for immigration purposes".
[7] In this case, the CCPE accepted the applicant"s qualifications for immigration purposes.
[8] The parties do not agree on the weight to be attached to the CCPE informal assessment.
[9] The applicant relies on the CCPE form which explains the purpose of the informal assessment:
| ... The purpose of this assessment is to evaluate the likelihood of acceptance into the examination program by a provincial or territorial engineering association. |
| A positive outcome is valuable advice to visa officers. They take it into account when they assess your application for permanent residence in Canada. It does not guarantee they will approve your application, but it will be a factor in your favour. |
| A negative outcome is valuable advice to you. It tells you that applying to immigrate to Canada with the intention of working there as an engineer is unrealistic. |
| The assessment result is used for occupational designation for immigration purposes only. |
[10] The respondent"s Selection Manual, a departmental guideline prepared for visa officers, deals with the selection of professional engineers and the CCPE informal assessment in these terms (Chapter 4 - Independent Immigrants):
| 4.40 SELECTION OF PROFESSIONAL ENGINEERS, ENGINEERING TECHNOLOGISTS AND TECHNICIANS |
| 1) Processing Procedures at Posts Abroad |
| a) ... In most instances, this advice enables the post abroad to determine if the applicant can be assigned an occupational coding as a professional engineer, engineering technologist, or engineering technician for immigrant selection purposes. |
...
| 2) Informal Assessment |
| f) On receipt of the CCPE ... assessment, the immigrant processing procedure is as follows: |
| CCPE |
| Box 1 - will result in refusal as an engineer; |
| Box 2 - will result in immigration acceptance as an engineer, assuming the applicant otherwise meets selection criteria. |
There is a corresponding statement for assessments by the Canadian Council of Technicians and Technologists.
[1] Counsel for the applicant argues, on the basis of the respondent"s Selection Manual, that a positive CCPE assessment will be considered to be determinative of a person"s engineering qualifications or, at a minimum, will require visa officers to explain why they disagree with the CCPE assessment that the applicant"s "qualifications appear acceptable for immigration purposes".
[2] The respondent argues that the applicant"s reliance on the CCPE informal assessment is misplaced. Both the statements in the CCPE form and in the respondent"s Selection Manual must be read in the light of the statutory requirement that visa officers must assess all aspects of the application for permanent residence in accordance with the different factors set out in Schedule 1 of the Immigration Regulations, 1978 , SOR/78-172 as amended.
[3] There is insufficient evidence before me to support the applicant"s submission that the CCPE informal assessment is determinative of her qualifications as a chemical engineer under the National Occupational Classification ("NOC"). The evidence concerning the CCPE process is limited to the application form and an attached instruction sheet which states that a positive evaluation "will be a factor in your favour" but will not guarantee the approval of the application for permanent residence. Similarly, the language of the Selection Manual is equivocal. It suggests that a positive CCPE assessment will result in immigration acceptance as an engineer, "assuming the applicant otherwise meets [the]selection criteria".
[4] The issue, which I leave open for another case with more complete evidence, is how the arrangements between the respondent and the CCPE affect the visa officer"s determination concerning an applicant"s qualifications as an engineer. Is the CCPE assessment a requirement imposed by the respondent? What is the extent of the CCPE analysis of the applicant"s professional credentials? What is the relationship between the CCPE positive assessment and the criteria set out in the National Occupational Classification? These are some of the factual questions relevant to a more precise determination of the probative value of the CCPE assessment in an engineer"s application for permanent residence.
[5] The applicant is correct, however, in asserting that the CCPE assessment forms part of the information, together with the applicant"s curriculum vitae, description of employment tasks and letter of reference, which must be considered by the visa officer in determining whether the candidate meets the NOC criteria for engineers. Put differently, the visa officer"s negative decision concerning the applicant"s classification as an engineer must have been made with due regard for the information supplied by the applicant, including the CCPE assessment.
[6] In his affidavit evidence in this case, the visa officer explained his understanding of the CCPE assessment process. He learned from two CCPE information sessions that the informal assessment is primarily a consideration of the applicant"s academic credentials and that the employment experience is not reviewed. It is useful to repeat the visa officer"s affidavit evidence on this issue:
| ... I disagree that a person must show experience actually working as an engineer to obtain an approved informal assessment of qualifications for engineers from the Canadian Council of Professional Engineers ("CCPE"). I have attended two information sessions offered by the Canadian Council of Professional Engineers ("CCPE"), during which evaluators described to me the process they commonly follow when completing an informal assessment of a person"s engineering qualifications and the factors they consider. Although the application for an informal assessment of qualifications for engineers invites applicants to attach a resume, it is my understanding, gained from the information sessions I attended, that the CCPE"s informal assessment is primarily a consideration of an Applicant"s academic credentials and that the CCPE does not review employment experience. |
[7] The information obtained by the visa officer from the information sessions is substantially different than that suggested in the CCPE application form and instruction sheet and in the respondent"s Selection Manual. Applicants are requested to submit to the CCPE a curriculum vitae "listing dates, positions held and a short description of job duties". If the visa officer is correct in stating that this employment experience is not considered by the CCPE, the applicant in this case should have been so advised. As Justice Gibson noted in Yue v. Canada (1999), 169 F.T.R. 299, at paragraph 7: "The visa officer relied on extrinsic evidence provided by the Canadian Council of Professional Engineers without providing the applicants a reasonable opportunity to respond to that extrinsic evidence."
[8] It was reasonable for the applicant to assume that the CCPE informal assessment would be considered by the visa officer. She could also reasonably assume that the information in her curriculum vitae contributed to her obtaining a positive informal assessment. In this case, the visa officer notes in his affidavit that he "considered the positive result of the informal assessment conducted by the CCPE ...". However, he viewed the informal assessment as one limited to the applicant"s academic credentials. This interpretation was substantially different from the one suggested in the CCPE documentation and the Selection Manual. The failure to disclose this difference, based on extraneous information not made known to the applicant, is a breach of natural justice and a reviewable error.
[9] I have carefully reviewed the affidavit evidence of the visa officer and the applicant. I have also considered the visa officer"s notes in the light of Ms. Wang"s curriculum vitae, letter of reference from her employer and her response to the written questions during the interview. The language of the applicant"s documentary information is stated in general terms. Her status as a chemical engineer is not clearly asserted. Were it not for the visa officer"s failure to provide the applicant with the opportunity to respond to his view that the CCPE informal assessment was based primarily on academic credentials, I would not intervene. However, it is not for this Court to determine whether the applicant is a qualified engineer and I am not satisfied that the outcome of the redetermination of his application would be "inevitable": Yassine v. Minister of Employment and Immigration (1994), 172 N.R. 308 (F.C.A.) at 312.
[10] For these reasons, this application for judicial review will be granted. The decision under review will be set aside and the matter referred for redetermination by a different visa officer. The parties may file written submissions concerning the certification of a serious question within seven days of the date of these reasons.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
March 16, 2000