Date: 20021108
Docket: IMM-1471-02
Neutral citation: 2002 FCT 1154
OTTAWA, ONTARIO, THIS 8th DAY OF NOVEMBER, 2002
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
QIN, PENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application to review and set aside a decision, dated February 22, 2002, of Ms. Lily Chau, visa officer at the Canadian Consulate General in Hong Kong, rendered under the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") wherein she denied the applicant's application for permanent residence in Canada.
[2] At issue is principally the determination by the visa officer that the applicant did not have any experience as a dental hygienist. Accordingly, she awarded zero units of assessment both under the Experience factor (factor 3) and the Occupational factor (factor 4) listed in column I of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations"), as amended. Since subsections 11(1) and (2) of the Regulations prohibit the issuance of an immigrant visa in these circumstances, she refused the applicant's application under the Independent category.
[3] I have found, first and foremost, that the assessment of the applicant's experience as a dental hygienist, and the visa officer's refusal to award units of assessment under the Experience and Occupational factors, were both improper and unfair in the present case. Furthermore, her finding that the applicant has "not performed a substantial number of the main duties of this occupation as set out in the National Occupational Classification [(the "NOC")], including the essential ones" is perverse and capricious, and constitutes a reviewable error of law.
[4] The applicant, Mr. Peng Qin, is now a 29 year old citizen of China. In July 1996, he graduated from Second Medical University in Shanghai. Included with his application for permanent residence, made in October 1999, his university certificate and his transcript of academic record, was a letter dated August 3, 1999, signed by the head of the Shanghai Zhabei District Dental Disease Prevention and Treatment Clinic (the "Clinic"). This letter attests that since July 1996, which is when the applicant has graduated from the oral cavity medicine program, the applicant has worked as a dental hygienist and dentist at the Clinic.
[5] This letter also attests that, from 1996 to 1999, the applicant has been mainly performing work and duties in accordance with the Clinic's main role and function, which is to prevent dental disease and reduce the rate of dental disease in the populace, especially those living in the Zhabei district. The work and duties he performed, as enumerated in the letter, are as follows:
1. Checking the teeth of people in the district according to schedules and preparing reports on results of checking;
2. Taking X-ray pictures;
3. Cleaning up teeth to prevent teeth disease;
4. Cleaning and stimulating the gingiva to prevent gingival disease;
5. Filling teeth and treating teeth diseases such as mummification and root channel therapy;
6. Teaching patients about how to carry out oral hygiene and recovering practice;
7. Educating the people in the district about oral and teeth hygiene and disease prevention knowledge.
[6] The head of the Clinic concludes that "[a]fter three-year practice, Qin Peng has been very skilled in these practices such as dental checking, X-ray taking , cleaning and treatment". He also attaches a supplementary record of the applicant's work outside the Clinic - mostly checking, cleaning, filling cavities, dental hygiene and consultation work -, and he provides his phone number and address if additional information regarding the applicant is needed.
[7] The above evidence is highly relevant to the assessment of the applicant's experience and duties as a dental hygienist, which is the applicant's intended occupation in Canada. According to the description given in the NOC 3222, "[d]ental hygienists provide dental hygiene treatment and information related to the prevention of diseases and disorders of the teeth and mouth". Although there may be some overlap between the work performed as a dentist, the evidence shows that the applicant has worked as a dental hygienist for the Clinic since July 1996.
[8] In the case at bar, based on the documentary evidence on file, the applicant was initially awarded 68 points by the visa officer. She did not in any way question the above uncontradicted evidence submitted by the applicant with his application. Accordingly, the applicant's three years of experience as a dental hygienist were considered and computed by the visa officer in her initial assessment. The applicant was therefore requested to appear for an interview.
[9] The visa officer interviewed the applicant and his wife, who had also made an application on February 18, 2002. The interview lasted nearly 45 minutes. In the CAIPS notes, the visa officer mentions that "[i]n the absence of contradictory evidence, I am willing to accept that [Peng Qin] met [the] employment requirements for his intended occupation of dental hygienist". In her affidavit, the visa officer affirms that at the interview she used the NOC as a tool in determining whether the duties and responsibilities indicated by the applicant corresponded to the ones listed for the occupation of "Dental Hygienist" in the NOC.
[10] I have therefore compared the duties mentioned at paragraph 5 of these reasons with the ones listed in NOC 3222. There is a close resemblance between the two. The NOC mentions that dental hygienists perform "some or all" of the following duties:
1. Conduct an initial dental assessment and consult with dentists on patient care;
2. Take dental impressions;
3. Instruct patients regarding oral hygiene procedures;
4. Clean and stimulate the gums to prevent gum disease;
5. Remove stains and deposits from teeth to prevent tooth and root decay;
6. Apply fluoride treatment;
7. Take and develop X-rays;
8. May perform restorative and orthodontic procedures under the direction of a dentist;
9. May supervise dental assistants in their health care functions.
[11] In the visa officer's refusal letter, she is of the view that the applicant must perform "a substantial number of the main duties [of this occupation] as set out in the National Occupational Classification, including the essential ones ...". These are the words used in Schedule I of the Regulations with respect to the assessment of the Occupational factor (factor 4). However, the NOC 3222 clearly states that "[d]ental hygienists perform some or all of the ... duties" indicated at paragraph 10. Where the words "some or all" have been used in the NOC, which is the case here, this Court has held that it is an error of law to hold the applicant to the standard of performing "a substantial number of the main duties", as this would mean applying the NOC in a manner inconsistent with its terms. It has been decided that the phrase "some or all" takes precedence over and supersedes the general language of "a substantial number of the main duties". In this context, "some" means more than one (see Paracha v. Canada (Minister of Citizenship and Immigration) (1999), 3 Imm. L.R. (3d) 293 (F.C.T.D.); Bhutto v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 318 (F.C.T.D.); Agrawal v. Canada (Minister of Citizenship and Immigration) (1999), F.T.R. 157 (F.C.T.D.); and A'Bed v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1347 (F.C.T.D.).
[12] Accordingly, to be recognized as a "dental hygienist", the applicant did not have to prove to the visa officer that he had performed every duty listed in NOC 3222 during the three years he had worked at the Clinic as a dentist and dental hygienist.
[13] Based on the documentary evidence already on file, the applicant could reasonably expect that the visa officer would assess him as a dental hygienist and would recognize his three years of experience at the Clinic. That being said, on a balance of probabilities, having carefully read the CAIPS notes, the affidavits and the transcript of the visa officer's cross-examination, I conclude that during the applicant's interview, no questions with respect to the nine duties of a dental hygienist listed under the NOC were asked by the visa officer, except with respect to X-rays and oral hygiene procedures. She did not even ask questions about tooth cleaning, which is one of the main duties of a dental hygienist. Her reason is that she simply did not have time "to ask, like, 100 questions on the applicant's duties" (cross-examination on affidavit of L. Chau, transcript, page 59 of the application record). However, in her CAIPS notes, she concludes: "[g]iven [Peng Qin's] inability in providing details related to his daily duties, I was not satisfied that [Peng Qin] had experience as a dental hygienist. Although [Peng Qin's] reference letter attested to his experience, I place more weight to this [sic] own recount and description of his duties". In view of the cursory examination of the applicant's duties, the visa officer's finding and subsequent conclusions in this regard are capricious and perverse.
[14] The applicant's failure to provide details during the interview with respect to certain technical aspects regarding the X-ray machine he uses and which is mentioned by the visa officer in her CAIPS notes is not determinative. The issue is whether the applicant knows how to safely operate the X-ray machine. He explained how he operated the X-ray machine. He also indicated that the radiation exposure time is to be set at .3 to .4 seconds and that he has to make sure the patient has not had X-rays taken more than three times "in any given day". (Even if the applicant did not specifically mention "in any given day" at his interview, this inference must be taken from the context).
[15] As for oral hygiene, the applicant indicated during his interview that people in China do not "floss". This is another fact the visa officer has mentioned in her CAIPS notes in support of her refusal to recognize that the applicant has worked as a "dental hygienist" in Shanghai. Even if I accept that the applicant had no experience demonstrating to his patients how to use dental floss, I find it is unreasonable to infer that the applicant had no experience advising his patients on oral hygiene. The fact that, to the visa officer's general knowledge, western pharmaceutical products can be found in Shanghai, a town of thirteen million people, did not permit her to draw a negative inference. I also accept the suggestion made by the applicant's counsel that flossing is a practice that has yet to make inroads in China. This factor alone would have warranted the visa officer to act with caution and to conduct a more adapted and thorough examination of the applicant's duties.
[16] Therefore, I find that the process followed by the visa officer to assess the work experience and qualifications of the applicant was both improper and unfair in the circumstances and constitutes a breach of procedural fairness.
[17] The errors made in this case by the visa officer are fundamental. Furthermore, there has been a general breach in the duty of fairness owed to the applicant. It is apparent from the CAIPS notes and the answers given by the visa officer in her cross-examination on affidavit that her opinion concerning the applicant's lack of experience as a dental hygienist heavily influenced the conduct of the rest of the interview and had a negative impact on her overall assessment of the other factors listed in Schedule I of the Regulations, such as Personal Suitability, which confers a large amount of discretion on the visa officer.
[18] Furthermore, I note that a particular incident seems to have exacerbated and heightened tensions between the applicant and his wife, and the visa officer. Toward the end of the interview, the visa officer administered a language test for the purpose of assessing the applicant's ability to read and write English. According to her affidavit, when the language test started, the visa officer asked the applicant's wife to leave the room. However, in her handwritten notes, she used stronger words, i.e.: "wife kicked out during language tests". The visa officer's explanation to exclude the applicant's wife was somewhat confusing and contradictory. In her cross-examination, she declared:
Because Ms. Chen was muttering to Mr. Qin during the interview, I decided to ask her to leave the interview room so the language test would be conducted properly" (cross-examination on affidavit of L. Chau, transcript, page 35 of the application record)
[my emphasis]
At this point, it is not important for the Court to decide whether the visa officer was right in asking the applicant's wife to leave the room or whether she should have been more polite in doing so. However, the words "wife kicked out during language tests" are eloquent and point out the state of mind of the visa officer. There was certainly a negative predisposition which unfairly affected the result.
[19] These various elements, combined with other signs of hostility or rigidity on the part of the visa officer during her cross-examination on affidavit, and which have also been underlined by the applicant's counsel during the course of the hearing, all contribute to the general impression I have that something went wrong during the interview, and that perhaps the visa officer, under better and different conditions, would have been inclined to judge more favourably the applicant's demand for permanent residence, and would, as a result, have been more generous in her assessment of the applicant's English Language Capabilities (factor 8) and of his Personal Suitability (factor 9).
[20] On a balance of probabilities, having reviewed the entire record, I find that the process followed by the visa officer was unfair, and that at the very least, she has not complied with the spirit of the Act. I totally agree with the following comments made by Jerome A.C.J. (as he then was) in Hajariwala v. Canada (Minister of Citizenship and Immigration) (1988), 6 Imm. L.R. (2d) 222, at page 226:
... Above all, it is important to bear in mind that Parliament's intention in enacting the Immigration Act is to define Canada's immigration policy both to Canadians and to those who wish to come here from abroad. Such a policy cannot exist without complex regulations, a good many of which appear to be restrictive in nature, but the policy should always be interpreted in positive terms. The purpose of the statute is to permit immigration, not prevent it. It follows that applicants have the right to frame their application in a way that maximizes their chances for entry. It is the corresponding obligation of immigration officers to provide a thorough and fair assessment, and to provide adequate reasons for refusals when they occur.
[my emphasis]
[21] Despite the respondent's counsel's able argument, in view of the particular circumstances of this case, I do not accept that open ended questions by the visa officer can suffice in satisfying the general obligation toward the applicant in respect of procedural fairness. In Chen v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 582, the Court stated as follows at paragraph 12:
In the present case, when the visa officer became concerned that the applicant might not qualify in the "Investor" class, she should have questioned him specifically on each of the criteria separately. For her to have simply expressed concern in a general way and then expected a meaningful response is, in my opinion, not consistent with the requirements of procedural fairness. In saying this, I am not suggesting a visa officer is required to conduct a seminar with each applicant as to the requirements of the Immigration Act or Regulations or indeed to phrase questions always using specific words or formulas. However, where the requirements to be met under the Act or Regulations are fairly straightforward and the visa officer has a concern that an applicant may not qualify, I do not think it is placing too great a burden on the visa officer to address each requirement specifically and illicit answers so that a clear assessment can be made as to whether the applicant comes within the relevant definition of the Act or Regulations. This was not done in the present case.
[my emphasis]
[22] At the hearing of this application, counsel agreed that if the visa officer was wrong in her assessment of the Experience and the Occupational factors, the applicant would receive 69 units of the 70 units of assessment mentioned at paragraph 9(1)(b) of the Regulations. Still, the respondent insists that the applicant must demonstrate to the Court that the visa officer erred in her assessment of other factors. Otherwise, the Court should not intervene.
[23] In her refusal letter, the visa officer mentions that notwithstanding her main conclusion, the applicant "still would not score sufficient units of assessment to pass selection even if awarded maximum points for both the experience and occupational factors". However, as agreed by counsel, the applicant would only be short of one unit. I note that in such a case, a visa officer may nevertheless issue an immigrant visa under subsection 11(3) of the Regulations if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established. Clearly, this aspect of her discretion has not been mentioned or considered by the visa officer.
[24] Furthermore, other grounds of review have been raised by the applicant. I will not recite them all but will mention only two. First, the applicant has strenuously argued that the visa officer erred in requiring that the applicant obtain a perfect score in the reading test in order to obtain a fluent rating. Second, the applicant has argued that the visa officer's finding that he demonstrated a lack of initiative and resourcefulness in researching settlement issues is patently unreasonable when one looks at the documentation and explanations offered by the applicant. He has submitted in this regard that the visa officer's assessment of the Personal Suitability factor (4 units) is wrong and should have been higher. The applicant's counsel also referred the Court to Dawson J.'s decision in Singh v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 42, where she notes at paragraph 10 that:
...[a] publication prepared by the Regional Programme Centre for Immigration for the United States advises applicants that the average score for personal suitability is five to seven units.
[my emphasis]
[25] I do not find it necessary to decide these issues as I have already found that a breach in the duty of fairness committed by the visa officer is enough to set aside a decision where, as here, the breach is general and taints the overall assessment. Although I cannot speculate on the outcome of the application if a new assessment is conducted, it is possible that the applicant could score more than 69 units since he did not obtain the maximum units with respect to factor 8 (Knowledge of English and French languages) and factor 9 (Personal Suitability) listed in Schedule I of the Regulations.
[26] When on an application for judicial review of a visa officer's refusal to issue a visa, the Court concludes that the officer committed a reviewable error and awarded the applicant too few units of assessment, the Court may, in its discretion, refuse to set aside the decision, if in its view, the error could have made no difference to the visa officer's decision because, even after the error was corrected, the applicant still had insufficient points to be issued a visa. However, this Court and the Federal Court of Appeal have been hesitant to exercise their discretion to refuse to set aside a decision where the applicant is short of only one or two units (see Hameed v. Canada (Minister of Citizenship and Immigration) (2001), 268 N.R. 185 (F.C.A.), at paras. 23-24; Tahir v. Canada (Minister of Citizenship and Immigration) (2001), 209 F.T.R. 62 (F.C.T.D.), at para. 12; Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48 (F.C.A.), at para. 4; and Bawa v. Canada (Minister of Citizenship and Immigration) (2002), 19 Imm. L.R. (3d) 320 (F.C.T.D.), at paras. 9 to 13). In the case at bar, the respondent's counsel has failed to convince me that the Court should, in its discretion, refuse to set aside the decision.
[27] For all those reasons, an order will be issued setting aside the decision of the visa officer and referring the matter back to another visa officer for redetermination in accordance with the law.
[28] Counsel for the applicant has stressed the importance of assessing the applicant's application before March 31, 2003 under the Regulations. If an assessment is made beyond March 31, 2003, then such assessment will have to be made under the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "New Regulations"). The net effect is that this judicial review would become moot because the applicant would be assessed under an entirely different and more stringent points system. The decision of the Court would be nullified and justice would not be served.
[29] I note that the New Regulations, which came into force on June 22, 2002, provide as follows at subsection 350(3):
350(3) If a decision or an act of the Minister or an immigration officer under the former Act in respect of a person described in subparagraph 9(1)(b)(i) or paragraph 10(1)(b) of the former Regulations is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before the date of the coming into force of this section, the determination shall be made in accordance with subsections 361(3) and (5) of these Regulations.
[30] Subsections 361(3) and (5) of the New Regulations read as follows:
361(3) During the period beginning on the day on which this section comes into force and ending on March 31, 2003, units of assessment shall be awarded to a foreign national, in accordance with the former Regulations, if the foreign national is an immigrant who,
(a) is referred to in subsection 8(1) of those Regulations, other than a provincial nominee;
and
(b) before January 1, 2002, made an application for an immigrant visa under those Regulations that is still pending on the day on which this section comes into force and has not, before that day, been awarded units of assessment under those Regulations.
...
(5) If a foreign national referred to in paragraph (2)(a) made an application before January 1, 2002 for an immigrant visa and has not, before April 1, 2003, been awarded the number of units of assessment required by the former Regulations, they must obtain a minimum of 70 points based on the factors set out in paragraph 76(1)(a) to become a permanent resident as a member of the federal skilled worker class.
[31] Counsel for the respondent has not suggested that the visa officer will not be in a position to assess the application before March 31, 2003. However, I feel the matter should not be left to the discretion of the respondent. Therefore, I will also order that the redetermination be made on or before March 31, 2003.
[32] In doing so, I have considered the following comments made by Gibson, J. in Hilewitz v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1121 at paragraph 31:
[31] The Immigration and Refugee Protection Regulations which came into force on the 28th of June, 2002, commencing with section 350, provide a comprehensive scheme for disposition of decisions or acts of the respondent or an immigration officer made under the Immigration Act and referred back to the respondent by this Court for redetermination where the redetermination was not made before the 28th of June, 2002. I am satisfied that an order of this Court referring this matter back for redetermination in accordance with the Immigration Act and Regulations would in effect be inconsistent with law. I am not prepared to so order. Further, I am not prepared to dictate terms on which a redetermination of the applicant's application for permanent residence in Canada should be redetermined.
[33] I find no contradiction between the position I have chosen to adopt in the present case and the reservation expressed by Gibson J. in Hilewitz, supra. First, I will order that the matter be redetermined "in accordance with the law". I will not order that it be redetermined "in accordance with the Immigration Act and the Immigration Regulations, 1978". Second, paragraph 18.1(3)(b) of the Federal Court Act, R.S.C. 1985, c. F-7, confers a broad discretion on the Court to make "such directions as it considers to be appropriate" when it decides to set aside a decision and refer a matter back for redetermination. Third, in the present case, the Court does not dictate the terms on which the redetermination shall be made (which would be the case, for example, if the Court were to order the visa officer to give a certain number of units with respect to a particular factor mentioned in Schedule I of the Regulations). The Court is simply prescribing that such redetermination must be made within a specific time frame.
[34] The parties made submissions as to costs. I am satisfied that there are special reasons to warrant an award of costs to the applicant. The main error committed by the visa officer was blatant. She failed to follow a common rule dictated by good sense, that is, she did not assess the experience of the applicant as a whole but instead focussed on two handpicked areas of his experience. Although there is no evidence of bad faith, the breach of the duty of fairness during the interview was serious and had adverse consequences on the applicant's application. I strongly disapprove of the unreasonable position and the rigidity manifested by the visa officer. Accordingly, a warning appears necessary. Moreover, the present condemnation in the form of costs should provide the occasion to review, and perhaps modify, certain practices or attitudes, given the fact that the respondent insisted that the visa officer did a fine job. However, I wish to state that I find no cause to personally reproach the respondent's counsel, who did her best to defend the untenable position taken by the visa officer. For all these reasons, I think it appropriate to award costs to the applicant, which shall be assessed pursuant to Column III, Tariff B of the Federal Court Rules, 1998.
[35] The parties, having had the opportunity, have not requested that I certify a serious question of general importance, and there will be no question certified by the Court.
ORDER
THIS COURT ORDERS THAT:
[1] The application for judicial review be allowed with costs in favour of the applicant, which shall be assessed pursuant to Column III, Tariff B of theFederal Court Rules, 1998;
[2] The decision, dated February 22, 2002, of Ms. Lily Chau, visa officer at the Canadian Consulate General in Hong Kong, wherein she denied the applicant's application for permanent residence in Canada, be set aside;
[3] The applicant's application for permanent residence in Canada be referred to another visa officer for redetermination in accordance with the law;
[4] The redetermination of the applicant's application for permanent residence in Canada be made on or before March 31, 2003.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1471-02
STYLE OF CAUSE: Qin, Peng v. The Minister of Citizenship & Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 24, 2002
REASONS FOR ORDER: Martineau, J.
DATED: November 8, 2002
APPEARANCES:
Mr. Lawrence Wong FOR APPLICANT
Ms. Pauline Anthoine FOR RESPONDENT
SOLICITORS OF RECORD:
Lawrence Wong & Associates FOR APPLICANT
Vancouver, British Columbia
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada