Date: 20020322
Docket: IMM-763-01
Neutral citation: 2002 FCT 311
BETWEEN:
KIHYUK CHA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Kihyuk Cha, (the "applicant"), a citizen of Korea, applied in March 1999 for permanent residence status in Canada in the independent category with an intended occupation of Editor NOC:5122. He was interviewed at the Canadian Embassy in Seoul by Moonho Lee, Designated Immigration Officer (the "immigration officer") on January 12, 2001. By letter dated January 15, 2001, he was advised his application was refused.
[2] The immigration officer determined he did not have the required minimum of one year of experience in the occupation of Editor as it is described in the National Occupational Classification ("NOC"). He was awarded 0 units of assessment under the experience factor. Subsection 11(1) of the Regulations provides a visa officer shall not issue a visa to an immigrant if that person fails to earn at least 1 unit of assessment for experience.
BACKGROUND
[3] NOC:5122 deals with the occupation of Editors. The occupation of Editors is described in the following terms:
Editors review, evaluate and edit manuscripts, articles, news reports and other material for publication or broadcast, and co-ordinate the activities of writers, journalists and other staff. They are employed by publishing firms, magazines, journals, newspapers, radio and television networks and stations, and by companies and government departments that produce publications such as newsletters, handbooks and manuals. Editors may also work on a freelance basis. [emphasis mine]
[4] Examples of titles classified in this unit group include: Advertising Editor, Art Editor, Associate Editor, Copy Editor, Editor, Manuscript Editor, News Editor, Photo Editor, Production Editor, Script Editor, Sports Editor and Technical Editor.
[5] The NOC describes the main duties of editors in the following terms:
Editors perform some or all of the following duties:
· Evaluate suitability of manuscripts, articles, news copy and wire service dispatches for publication or broadcast and recommend or make changes in content, style and organization
· Read and edit copy to be published or broadcast to detect and correct errors in spelling, grammar and syntax, and shorten or lengthen copy as space or time requires
· Confer with authors, staff writers, reporters and others regarding revisions to copy
· Plan layout or format of copy according to space or time allocations and significance of copy
· Plan and co-ordinate activities of staff and assure production deadlines are met
· Plan coverage of upcoming events and assign work accordingly
· May negotiate royalties with authors and initiate payments to freelance staff.
Editors may specialize in a particular subject area, such as news, sports or features, or in a particular type of publication, such as books, magazines, newspapers or manuals.
[6] Item 3 of Schedule I to the Immigration Regulations, 1978, sets out the experience factor. It reads:
| 3. Experience Units of assessment shall be awarded for experience in the occupation in which the applicant is assessed under item 4 . . . , as follows: (a) when the number of units awarded under item 2 is one or two, two units for the first year of experience; (b) when the number of units awarded under item 2 is five to seven, two units for each year of experience not exceeding two years; (c) when the number of units awarded under item 2 is 15, two units for each year of experience not exceeding three years; and (d) when the number of units awarded under item 2 is 17 or 18, two units for each year of experience not exceeding four years. |
3. Expérience Des points d'appréciation sont attribués pour l'expérience acquise dans la profession pour laquelle le requérant est apprécié selon l'article 4 ou, dans le cas d'un entrepreneur, pour l'expérience acquise dans la profession pour laquelle il possède les compétences voulues et qu'il est prêt à exercer au Canada. Ces points sont attribués selon le barème suivant_: a) lorsque 1 ou 2 points sont attribués aux termes de l'article 2, 2 points pour la première année d'expérience; b) lorsque de 5 à 7 points sont attribués aux termes de l'article 2, 2 points pour chaque année d'expérience jusqu'à 2 années; c) lorsque 15 points sont attribués aux termes de l'article 2, 2 points pour chaque année d'expérience jusqu'à 3 années; d) lorsque 17 ou 18 points sont attribués aux termes de l'article 2, 2 points pour chaque année d'expérience jusqu'à 4 années. |
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[7] Item 4 of Schedule I to the Regulations is the occupational factor. It reads:
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4. Occupational Factor __(1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation (a) for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification; (b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and (c) that the applicant is prepared to follow in Canada. __(2) . . . [emphasis mine] |
4. Facteur professionnel (1) Des points d'appréciation sont attribués en fonction des possibilités d'emploi au Canada dans la profession_: a) à l'égard de laquelle le requérant satisfait aux conditions d'accès, pour le Canada, établies dans la Classification nationale des professions; b) pour laquelle le requérant a exercé un nombre substantiel des fonctions principales établies dans la Classification nationale des professions, dont les fonctions essentielles; c) que le requérant est prêt à exercer au Canada. |
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THE ISSUES |
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[8] The issues in this case are two-fold:
(1) Did the immigration officer err when comparing the duties the applicant actually performed when he worked as an editor in Seoul, Korea, with the duties required of an editor under the NOC; and
(2) Did the immigration officer have a discretion to determine which of the duties of an editor specified in the NOC were essential ones.
THE APPLICANT'S EVIDENCE
[9] In his application for permanent residence, Mr. Cha indicated he worked as an editor in two establishments. From April 19, 1993 to November 19, 1994, he worked as an editor for the Sungkyunkwan Academy in Seoul, South Korea and from December 19, 1994 to the present he worked in the same occupation in Seoul at the Jungsuk Academy.
[10] Jungsuk Academy was founded in 1981. Total students approximate 450 including elementary, middle and high school students. Main teaching subjects for secondary students are Korean, English with listening comprehension, mathematics and science and entire schooling subjects for elementary students. This academy publishes text books primarily for its own use and for wholesale to other tutoring institutes.
[11] In his resume, Mr. Cha states that as editor he:
· reviews and evaluates suitability of contents of all text books and dispatches for publication and recommends or makes changes in content and style
· reads and edits manuscripts to detect and correct errors in spelling, grammar and syntax, and shortens or lengthens copy as required
· confers with teachers and others regarding revisions and details of publication
· plans layout or format of copy according to space or time allocations and significance of copy
· determines title, sub-title, sequence, style of type, contents, publishing dates and paper quality
· responsible for editing all kinds of textbooks, workbooks, etc.
· every class needs two textbooks for each semester, and teachers in institute use them as the main textbooks
· communicates with printing company for price negotiation and publishing procedure
· selects background for photographs or painting.
[12] He provided a certificate of employment from Jungsuk Academy which did not spell out his duties except to describe his main duty as book editor in the editing department.
[13] In his affidavit filed in support of this judicial review proceeding he stated Jungsuk Academy publishes textbooks, work books and examination books for high school, middle school and elementary school levels, for its own students and for sale to other education institutions. His job is to edit the textbooks, that is to say, "I review and choose manuscripts for publication, plan the layout of the textbooks, and review the copy to be published in the textbooks for errors and contents".
[14] His affidavit contains his recollection of the questions and answers at the interview. He was asked how many employees were in his office and he answered 20. He was the only editor and he was in charge.
[15] To the question how many types of textbooks do you edit he said he answered:
I edit twenty-four types of textbooks for twelve different classes. In January and February, I prepare textbooks for the spring semester from March to June, and, in July and August, I prepare textbooks for the autumn semester from September to December. I also have responsibility for workbooks and examination books for each course for four examinations per year, in April, July, September and October. Preparations from the selection of manuscripts to edit and publish the materials usually starts two months earlier.
[16] To the question what is the working procedure he recalled answering:
1) I confer with teachers of each course.
2) Then, I select materials, make decisions on style and size of printing type, location of photographs or paintings, plan layout or format of copy.
3) I detect and correct errors of contents after completing the above steps.
4) I confer with publishing companies to determine the cost, deadline and the number of books, etc.
[17] The applicant was not cross-examined on his affidavit.
THE RESPONDENT'S EVIDENCE
[18] The respondent's evidence came through the affidavit of Moonho Lee who examined her CAIPS notes, said her CAIPS notes of the interview were included in the certified record and are true to the best of her information recollection and belief.
[19] She was not cross-examined on her affidavit.
[20] The relevant part of her CAIPS notes concerns his occupation at Jungsuk Academy from December 1994 to the present. This is how those notes read:
Entered as editor ever since he joined.
Academy has 25 teachers and 10 admin staff.
10 staff does parents counselling, accounting, driving...
Academy provides 4 subjects courses; English, Korean, Math, Science...
Duties..
- Teachers decide contents of the textbooks. They do the typing. Says PI discusses book size and fonts of the textbook with the teachers, teachers select pictures and photos for the textbooks and PI discusses with teachers on the layouts, assists teachers with proofreading of the contents for misspelling.
He then contacts the printing Co's to discuss publishing dates, prices (he needs approval from owner), number of copies as req'd by the owner, delivery date, check cover page color came out properly... cover design and contents are decided by the teachers.
Says he has no other duties as editor other than checking the schedule of the publishing... i.e. . the academy publishes text books once every semester and test prep books twice every semester. He reminds teachers of the due dates of preparing for the publishing.
Duties in the prev job -- Sungkyunkwan Academy was same as above.
[21] In her affidavit, Moonho Lee deposed as follows:
7. I asked about his duties at Jungsuk Academy in detail. The Applicant stated that he performed duties in relation to publishing text books and test preparation workbooks published by the academy. The Applicant stated that the contents, pictures to go in the books, and the book cover design were decided by the teachers in the academy.
8. The Applicant stated that he discussed book size, textbook fonts, and layouts with the teachers and assisted them with proofreading to spot errors with spelling. He further stated that he performed administrative duties such as contacting the printer in relation to publishing dates, delivery dates, prices, cover page color print quality and number of copies, and reminding teachers of due dates for regular publishing preparations.
9. . . .
10. Based on the information provided by the Applicant, I was not satisfied that he performed the major duties of "Editor" as described in the NOC which describes that editors review, evaluate and edit material for publication and co-ordinate the activities of writers and other staff. I found that the applicant's duties were limited to administrative or editing support duties and that the substantial editing work was done by the teachers. [emphasis mine]
[22] In her affidavit, Moonho Lee rebuts certain paragraphs of the applicant's affidavit. As to the applicant's statement (paragraph 5 of his affidavit) that at Jungsuk Academy his job was to edit textbooks and he reviewed and chose manuscripts for publication, planned the layout of textbooks, and reviewed the copy to be published in the textbooks for error and content, Moonho Lee had this to say:
15. ...I do not recall the Applicant having made these statements at the interview. I do recall asking questions in order to clarify his duties at Jungsuk Academy. As a result of his answers to my questions, I determined that the contents of the textbooks were decided by the teachers and that he discussed the layout with the teachers. Further, I also determined that he assisted the teachers with proof-reading and checked whether the cover page color came out properly. I recorded this in the CAIPS notes. [emphasis mine]
[23] Moonho Lee then refers to paragraph 7 of the applicant's affidavit and noted what the applicant said in response to the question "what is the working procedure?" where he told her "he selected materials, made decisions on style and size of printing type, location of photographs or paintings and planned layout or formats of copy". She responded:
16. ... The Applicant may have said those things. However, after asking clarifying questions, I obtained the information which is recorded in my CAIPS notes. That is to say that once we had finished discussing the matter, the Applicant had told me that it was actually the teachers who chose materials/contents of the textbooks, and that he simply discussed book size, fonts and layouts of the textbooks with them. Similarly, with respect to the assertion that he told me that he detected and corrected errors of contents, and conferred with publishing companies to determine cost, what he eventually told me at the interview was that he assisted the teachers with proof-reading of the contents for misspelling, contacted the printing companies to discuss printing cost, and that he needed the owner's approval regarding the printing cost. [emphasis mine]
[24] Moonho Lee was not cross-examined on her affidavit.
ANALYSIS
(a) The standard of review
[25] This application raises two questions. The first question turns on the interpretation of the Immigration Regulations and the NOC. In particular, the question is whether those instruments confer upon the visa officer a discretion to determine essential duties.
[26] Matters of interpretation of a regulatory text are questions of law. The visa officer must be correct in her interpretation of what powers the regulations and the NOC confer upon her and how she should carry out her assessment. This standard flows upon the factors identified by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
[27] The second question is whether the visa officer erred when comparing what experience the applicant had and what the NOC required. This exercise is a fact finding one engaging paragraph 18.1(4)(d) of the Federal Court Act which is equivalent to the patently unreasonable standard of review. (Compare Lim v. Canada (Minister of Employment and Immigration) (1991), 121 N.R. 241 (F.C.A.) and Lu v. Canada (Minister of Citizenship and Immigration) (1999), 176 F.T.R. 263 (F.C.T.D.).)
(b) Conclusions
[28] Three points must be made before setting out my conclusions in this case.
[29] First, counsel for the respondent conceded the applicant had experience in some of the duties required in the NOC for Editors. She maintained, however, the visa officer did not fall into error by requiring the applicant to have experience in all of the main duties for an editor. The crux of this case, according to her, turns on whether the visa officer has the power to determine essential duties.
[30] Second, counsel for the applicant conceded, because of the linkage between factor 3 (experience) and factor 4 (occupation), the requirement in paragraph 4(1)(b) of factor 4, namely "in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones" applied to the visa officer's assessment for the experience factor.
[31] Third, the Court requested counsel to make a post-hearing joint submission, if possible, in answer to the following question:
Does the National Occupation Classification guide (NOC) say anything about "essential" tasks and do any of the occupations list "essential" duties.
[32] In a joint submission dated February 20, 2002, counsel answered:
Both parties have satisfied themselves by reading the NOC and/or by contacting the Selection and Occupation Classification Unit of the Department of Citizenship and Immigration that the NOC does not stipulate essential duties within any of the listed occupations. The NOC also does not define the meaning of "essential".
[33] I am satisfied the visa officer did not impose on the applicant the obligation of having experience in all of the main duties of an editor. Clearly, such an obligation would have contravened the requirement in the occupation of Editor, NOC:5122 which provides that Editors perform "some or all" of the enumerated duties. A series of decisions of this Court has interpreted the words "some or all" in the NOC not to mean an applicant must perform all of the tasks. (See, for example, Paracha v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1282 and Bhutto v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1411.)
[34] I am invited by counsel for the applicant to rule, based on the evidence before me, including the applicant's resume and what he deposed to in his affidavit, that he performed some of the main duties of an editor because, in fact, he selected material to be published, he made decisions on style and size of printing type, location of photographs or paintings, and planned the layout or format of copy; he detected and corrected errors of content and he conferred with publishing companies to determine the cost, deadlines and number of books. He notes the visa officer at paragraph 16 conceded he may have said those things to her.
[35] I do not find any weakness in the visa officer's affidavit. It is clear from it the visa officer reviewed his resume with him, questioned him on his main duties and after discussing the matter with him, she wrote what she did in her CAIPS notes which led her to the conclusion the teachers at the Academy were in fact the editors who performed the main duties of the NOC and the applicant's duties were limited to administrative or editing support duties.
[36] In resolving the conflict in the affidavit evidence, I prefer the evidence of the respondent for the reasons Justice Gibson stated in Sehgal v. Canada (Minister of Citizenship and Immigration), [2001] F.C.T 212, where he stated the following at paragraph 7:
I prefer the visa officer's assessment of what transpired between she and the applicant at interview in this regard to that of the applicant. The visa officer's recollection reflected in her affidavit is confirmed by her CAIPS notes made on the date of interview. By contrast, the applicant's affidavit was sworn some months after the interview took place and reflects no indication that it was made on the basis of notes prepared on the date of the interview.
[37] Reading the visa officer's affidavit as a whole, I find the central reason she awarded the applicant 0 units of experience was because she concluded he had not performed the main duties required of editors because it was the teachers who were the decision-makers. This is how I interpret her CAIPS notes. In addition, in paragraph 10 of her affidavit, she states she was not satisfied he performed "major duties" of an editor.
[38] While it is not clear from the visa officer's CAIPS notes and affidavit whether she was evaluating the applicant's experience from the perspective of whether he had performed a substantial number of the required NOC duties (as contrasted from those performed by the teachers) or whether she was determining he had not performed the essential duties of an editor such as choosing material and determining content, there is no reason, on the record, to set aside her decision which is sustainable from either perspective.
[39] Justice Blais, in Kanjibhai v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1922 and Justice O'Keefe in Shinde v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1468, summarized the law on the point. Justice O'Keefe stated at paragraph 17 of his decision as follows:
It is not a requirement that the applicant perform all of the duties listed for Travel Counsellor in NOC 6431.0 as the NOC states that Travel Counsellors must "perform some or all of the following duties". The jurisprudence of this Court has established that a requirement that the applicant perform "some or all of the following duties" means that the applicant should have performed a substantial number of the main duties set out in the NOC, including any essential duties.
[40] I agree with counsel for the respondent that, in determining whether an applicant has performed "some or all" of the required NOC duties, the visa officer is entitled to give greater weight to certain duties. Justice Dawson in Farooqui v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 306, stated at paragraph 14:
I accept the submission of counsel for the respondent that the visa officer was entitled to give greater weight to certain duties contained in the NOC description and to conclude on a fair, broad, reading of the whole of the position description that an individual with experience in maintaining, installing and commissioning equipment and supervising a staff, including a staff of engineers and technicians, does not have experience in the occupation of electrical and electronics engineers.
[41] Immediately after paragraph 14 in Farooqui, supra, Justice Dawson referred to Justice Reed's decision in Wu v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 152, for the proposition:
...[t]he fact that not all duties in a CCDO description need be performed does not mean that the ability to perform some are not essential to an occupation.
Justice Dawson said she believed that reasoning was equally applicable to the NOC description.
[42] Clearly, the Immigration Regulations confer upon a visa officer a discretion to determine what are the essential duties of a particular occupation listed in the NOC. That power is specifically conferred upon the visa officer in factor 4(1)(b) of the Regulations which is also applicable to the Experience factor (factor 3). The fact the NOC itself does not identify essential duties for various occupations is consistent with the discretion granted to the visa officer to identify essential duties.
[43] The visa officer thought the essential duties of an editor were that "editors review, evaluate and edit material for publication and co-ordinate the activities of writers and other staff". This view cannot be said to be unreasonable.
[44] She determined as a fact the applicant did not perform these essential tasks because those tasks were substantially performed by the teachers.
[45] In the circumstances, I cannot find error in the visa officer's finding. She was evaluating his experience based on the information he provided and, in the context of that specific experience which he put forth, concluded, as a fact, he had not performed the essential tasks of an editor.
[46] For these reasons, this judicial review application is dismissed. No question for certification was advanced.
"François Lemieux"
J U D G E