Federal Court Decisions

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Date: 20050531

Docket: IMM-5261-04

Citation: 2005 FC 747

Ottawa, Ontario, May 31, 2005

PRESENT:      THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

LAU SHUK LING

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                Whether a decision is wise or otherwise, although technically correct, is for the test of time to tell!

In judicial review, the actual finding, if not patently unreasonable, is not for the Court to return.

That finding belongs to the first instance, trier of fact, together with any consequences which flow therefrom.

JUDICIAL PROCEDURE

[2]                The Applicant Ms. Lau Shuk Ling seeks judicial review pursuant to section 18.1 of the Federal Courts Act[1], of a decision of a visa officer of the Canadian Consulate General of Canada in Hong Kong. In his decision dated May 3, 2004, the visa officer refused Ms. Ling's application for permanent residence in Canada under the skilled worker class.

BACKGROUND

[3]                Ms. Ling is a citizen of Hong Kong who started her teaching career in 1973 and has been a principal of a primary school since 1989. She received her Certificate of Registration of Teacher in 1971. Later, she received a Bachelor's Degree in Psychology and partially completed a Master's program in Gerontology. At the time, she submitted her application for permanent residence in Canada, she was enrolled in a Bachelor of Education Program in Hong Kong and was the principal at Shek Kei Catholic Primary School. Ms. Ling's application for permanent residence under the skilled worker category was accompanied by an offer for arranged employment for the position of

Retail Sales Manager (NOC 0621) at Wh & M Enterprises Ltd, her father's company that is "in the business of selling shirts and fabric for men's slacks. Human Resources Development Canada had validated this arranged employment offered to Ms. Ling by her father.

DECISION UNDER REVIEW

[4]                Having interviewed Ms. Ling on April 1, 2004, the visa officer refused her application in a letter dated May 3, 2004, which provided the following ranking:

                                          POINTS                               MAXIMUM

                                      ASSESSED                               POSSIBLE

AGE                                                                                         04                                             10

EDUCATION                                                                         20                                             25

OFFICIAL LANGUAGE PROFICIENCY                           08                                             24

EXPERIENCE                                                                         21                                             21

ARRANGED EMPLOYMENT                                            00                                             10

ADAPTABILITY                                                                  05                                             10

TOTAL                                                                                 58                                            100

[5]                The reasons given were as follows:

For the most part, your application was assessed based on the occupation(s) in which you have been working, School Principal NOC 0313 skill 0. The score for arranged employment and offer of employment were assessed against the criteria of Retail Sales Manager NOC0621. [...]

You have not satisfied that you meet the criteria for the position for which you have received an offer.Therefore no points were awarded for arranged employment or for the offer of employment under adaptability. You have obtained insufficient points to qualify for immigration to Canada, the minimum requirement being 67 points. You have no work experience as a retail manager. You have not obtained sufficient points to satisfy me that you will be able to become economically established in Canada.

ISSUE

[6]                Was the visa officer finding that the Applicant did not meet the requirements of Retail Sales Manager patently unreasonable?

ANALYSIS

[7]                As stated by the Federal Court of Appeal in Lim v. Canada (Minister of Employment and Immigration)[2], whether a person meets the requirements of a certain work description is a pure question of fact which is entirely within the mandate of a visa officer to resolve and should therefore be reviewed by this Court on a patently unreasonable standard.

[8]                Ms. Ling argues that the visa officer failed to assess her education, training, background and experience in its entirety when determining whether she could perform the job she was offered as retail sales manager and when determining how many points to assign under the categories of "arranged employment" and "adaptability".

[9]                The National Occupational Classification (NOC) duties for the intended occupation of retail sales manager are as follows:

Retail trade managers perform some or all of the following duties:

·                      Plan, direct and evaluate the operations of establishments engaged in retail sales or of                           departments in such establishments

·                      Manage staff and assign duties

·                      Study market research and trends to determine consumer demand, potential sales volumes and effect of competitors' operations on sales

·                      Determine merchandise and services to be sold, and implement price and credit policies

·                      Locate, select and procure merchandise for resale

·                      Develop and implement marketing strategies

·                      Plan budgets and authorize expenditures

·                      Determine staffing requirements and hire or oversee hiring of staff.

[10]            The Court agrees with the Respondent that the visa officer's determination that Ms. Ling did not meet the requirements for the position of retail sales manager was reasonable and supported by the evidence. According to the chapter on Overseas Processing of the Immigration Manual, a visa officer "may take into account the applicant's education and training, background and prior work experience to determine if the applicant meets this requirement [arranged employment]". The evidence before the visa officer indicated that Ms. Ling's education, training, background and prior work experience was primarily in education. Furthermore, according to the visa officer's interview notes, Ms. Ling said she had very little experience in the retail trade. In his request for confirmation of a job offer submitted to Human Resources Development Canada, Ms. Ling's father admitted too that his daughter has no direct experience in clothing retail:

Although she has no direct experience in retail of clothing, she certainly has good familiarity with the clothing industry because I have been in the garment industry all my life and she has been assisting with my business during holidays and weekends when we were living in Macau.

In addition, the visa officer wrote the following in his interview notes:

I can stipulate that she has experience managing staff and assigning duties, albeit it in an academic rather that [sic] a retail environment.

This shows that the visa officer did consider the fact that Ms. Ling has experience in managing staff and assigning duties in the academic context, in order to determine if, transferred in the retail environment, these skills would be sufficient to demonstrate that Ms. Ling had performed a majority of the duties listed in the retail sales manager's NOC description. He answered this purely factual question in the negative. It was not patently unreasonable for the visa officer to reach that conclusion.

CONCLUSION

[11]            For these reasons, the Court answers the question in the negative. Therefore, this application for judicial review is dismissed.

ORDER

THIS COURT ORDERS that

1.         The application for judicial review be dismissed;

            2.         No question be certified.

"Michel M.J. Shore"

Judge


FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                                       IMM-5261-04

STYLE OF CAUSE:                                       LAU SHUK LING

                                                                        v.

                                                                        THE MINISTER OF CITIZENSHIP

                                                                        AND IMMIGRATION

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   May 16, 2005

REASONS FOR ORDER

AND ORDER BY:                                         The Honourable Mr. Justice Shore

DATED:                                                          May 31, 2005

APPEARANCES:

Mr. M. Max Chaudhary                                    FOR THE APPLICANT

Ms. Patricia MacPhee                                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

CHAUDHARY LAW FIRM                            FOR THE APPLICANT

North York, Ontario

JOHN H. SIMS Q.C.                                       FOR THE RESPONDENT

Deputy Minister of Justice and

Deputy Attorney General



[1] R.S.C. 1985, c. F-7.

[2] (1991) 12 Imm. L.R. (2d) 161 (C.A.F.).

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.