Date: 20010112
Docket: IMM-2706-99
BETWEEN:
BI ZONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
PROCEEDINGS
[1] This is an application for judicial review brought pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 of the decision of Mr. Gregory Chubak, Vice Consul and visa officer, dated May 7, 1999 wherein he denied the applicant's permanent residence application under the independent category.
[2] The applicant seeks an Order of certiorari quashing the above decision; an Order for a writ of mandamus directing the respondent to process her application for permanent residence in accordance with the law and the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"); a Declaratory Order that her application for permanent residence be processed within 90 days of the Order; her costs for this procedure; and such relief as this Honourable Court may deem just.
BACKGROUND FACTS
[3] The applicant, Bi Zhong (the "applicant") is a citizen of the People's Republic of China who submitted an application for permanent residence in Canada in August, 1996. In her application, the applicant stated "Executive Secretary" as her intended occupation. The applicant was interviewed by the visa officer in Hong Kong on May 7, 1999, and by letter dated the same day, her application for permanent residence was refused. The refusal letter states in part the following:
| I have assessed you in the occupation of executive secretary per the CCDO. However, based on your description of your experience and your training, you were determined not to qualify to undertake that occupation in Canada. |
| I have assessed you in the occupation of administrative clerk, for which you earned the following units of assessment: |
| Specific Vocational Preparation05 |
| Subsection 11(2) of the Regulations sets out that a visa officer shall not issue a visa to an immigrant, if that immigrant fails to earn at least one unit of assessment for occupational demand. Unfortunately the demand assigned for your occupation at the time of your application was zero and it is zero now. I consider the units of assessment that you have earned are an accurate assessment of your ability to successfully establish in Canada. |
| I have also assessed your application considering the occupations of office clerk, in which you are qualified and experienced. However, the demand assigned for this occupations [sic] at the time of your application was zero and it is zero now. |
| There is no other occupation apparent on your application in which you are qualified and experienced, and under which your application would be successful. |
| I have also assessed your application under the National Occupation Classification (NOC), but regret that the total units of assessment are also insufficient for me to approve your application. |
APPLICANT'S SUBMISSIONS
Issues
[4] The applicant states the issues in her memorandum of fact and law as follows:
1. Did the visa officer err in law and in fact by:
| (i) Assessing the applicant as an administrative clerk when the applicant was |
qualified and experienced to pursue the occupation of executive secretary?
The applicant submits that the CCDO published by the Minister of Supply and Services Canada, 1989, defines an Executive Secretary (4111-111) at page 74 as follows:
| Performs secretarial and administrative duties for office executive: |
| Performs duties similar to those of 4111-110 SECRETARY (clerical) utilizing secretarial experience and knowledge of office administration and public relations. Arranges conferences and other meetings and researches and compiles information for employer. Acts on routine matters affecting day to day operations of organization, in employer's absence. May perform other duties including supervising office workers. |
The applicant submits that the training and entry requirements for an executive secretary are as follows:
| The Applicant also has 10-12 years of general education and 3-6 months of training in a business college or one year in a special commercial course at high school. |
[5] The applicant submits her work experience is as follows:
| July 1985 to August 1988: Nanjing WuFeng Industrial Co. Ltd. as a secretary. The role of the job included, among other things, dovetailing between high level and low level or inside and outside, a role played by an executive secretary, but not an ordinary administrative secretary. |
| July 1991 to March 1994: Purina Nanjing Feed-mill Company Ltd. as an executive secretary. The duties included, among other things, making schedules, collecting information and compiling information for the employer. |
| March 1994 to March 1995: Nanjing Decoration Engineering Co. as an executive secretary where she "helped managers to adjust each engineering team and then she reported to manager about progressing situation of each project and financial situation. ...She helped manager to draw up the work plans for the Second Department. She gave instructions about various meetings and activities..." The applicant's duty to "help managers to adjust each engineering team ... and to draw up the work plans ..." related to routine matters affecting day to day operations of the organization. Her duty to "give instructions about various meetings and activities" related to supervising office workers. |
| April 1995 to date of interview: Shen Zhen Hin Dida Electronic Co. Ltd. as an executive secretary. The applicant's duties included "making preparations for ... conference or company activities, ...arranging some negotiation meetings with foreign tradesman, ... arranging exhibition, ... acting on routine matters affecting day to day operation of organization..." |
| [6] The applicant argues that on cross-examination and re-examination, the visa |
officer stated he was satisfied that she performed the duties of an executive secretary.
| [7] The applicant submits that she has six years each of elementary school and high |
school, a three year diploma from Jiangsu Provincial Guidance Committee of Self Taught Higher Education Examinations, three months at Nanjing College of Science and Technology for which she received a certificate, and a five month secretary course completed at the Training Department of Jiangsu Staff Science and Technology Activity Center on February 8, 1999.
| [8] The applicant submits she had the education and the experience, and is qualified |
for the occupation of "executive secretary." Therefore, the applicant argues the visa officer erred in law by refusing to assess her under the category of "executive secretary."
| (ii) Failing to observe natural justice and procedural fairness by failing to |
notify the applicant that he found the applicant did not meet the training requirements and by failing to give the applicant any opportunity to address his concerns?
The applicant offers the decision of Muliadi v. Canada (Minister of Employment and Immigration) [1986] 2 F.C. 205 (F.C.A.), where Stone J.A. states at page 216 ". . . an opportunity of meeting the negative assessment by the provincial authorities before it was acted upon by the visa officer, for upon that assessment his application turned." The applicant also refers to Yang v. Minister of Employment and Immigration et al. (1992), 56 F.T.R. 155 (F.C.T.D.) where the applicant in that case stated in her affidavit that she was not asked any questions regarding her educational background, or the educational background in Taiwan. Jerome A.C.J. (as he then was) found that this was crucial to the granting of the judicial review as the failure to have asked these questions leaves doubt as to whether a proper assessment of the applicant's qualifications occurred.
| [9] The applicant submits the visa officer did not accept her three months at Nanjing |
College of Science and Technology, for which she received a certificate in 1992, to meet the training and entry requirements for an executive secretary. Although the visa officer acknowledged that this was a 96 hour computer course, he did not have a complete curriculum of the course before him, nor did he ask for particulars of the curriculum. The applicant argues the visa officer foreclosed himself from deriving more details about the course, and therefore failed to tell her the course did not meet the training and entry requirements for an executive secretary during the interview. The visa officer acknowledged that should the particulars of the curriculum have indicated the training and entry requirements for the occupation had been met, such information would have been relevant. Thus, the applicant submits she was denied procedural fairness when the visa officer failed to inform her that the course taken was not sufficient to qualify for the training and entry requirements for an executive secretary.
| [10] (iii) Finding that it was mandatory to complete the training and entry |
requirements before the applicant's work experience can be taken into account?
In the alternative, the applicant argues the visa officer acknowledged the course she completed in February, 1999, at the Jiangsu Staff Science Center was sufficient to meet the training and entry requirements. Moreover, the applicant submits the visa officer acknowledged that there was no provision in the Act or the Immigration Regulations, 1978, S.O.R./78-172 (the "Regulations") stating that work experience has to follow the completion of training and entry. The applicant therefore submits that in finding the training and entry requirements for an executive secretary had not been met, the visa officer erred in concluding she could not be assessed as an executive secretary.
| [11] 2. Did the visa officer err in law and in fact in only awarding the applicant |
10 units for education?
The applicant argues that as she received a diploma in English Specialty conferred by the Nanjing Normal University in conjunction with others, she should have been awarded 13 units for education according to Factor 1(1)(c)(ii) of Schedule I of the Regulations, rather than 10 units, being that the Diploma was conferred by a university. The applicant submits the visa officer did not canvass any issues with the applicant about the Nanjing Normal University, and made an assumption that entry into it did not require a diploma as described under (b)(ii) of Factor 1 in Schedule I. The applicant again cites Stone J.A. in Muliadi, supra, in support of these submissions.
Alternatively, the applicant submits the visa officer did not advise her of his personal opinions nor did he allow her an opportunity to disabuse his concerns. Thus, as she was not confronted with any of the visa officer's concerns, nor provided with an opportunity to respond to such concerns, the applicant submits she was denied procedural fairness.
| [12] 3. Did the visa officer err in law and in fact in assessing the applicant under |
| the occupation of general office clerk but referring to the occupation as administrative clerk, an occupation which is not defined in the CCDO and for which the officer assigned her the wrong Specific Vocational Preparation ("SVP")? |
The applicant submits that on cross-examination, the visa officer states he assessed her as an administrative clerk pursuant to CCDO 4197-114, the description for which is that of a general office clerk and not an administrative clerk. Furthermore, the applicant submits the SVP for CCDO 4197-114 is 4 and not 5 as assigned in the refusal letter. The applicant therefore submits the visa officer erred in fact and in law by assessing her as an administrative clerk as there is no such description in the CCDO, and the SVP assigned in the refusal letter does not match that of CCDO 4197-114.
RESPONDENT'S SUBMISSIONS
| [13] The respondent frames the issues as follows: |
| 1. The visa officer reasonably determined that the applicant did not have the basic entry and training requirements for assessment as a secretary or executive secretary. |
The respondent submits the visa officer reasonably determined the following: that the applicant's diploma from the Jiansu Provincial Guidance Committee of Self-Taught Higher Education was a two year self-taught English language program, and was not adequate to satisfy the CCDO requirement of "three to six months of training in a business college"; that the 96 hour basic computer course taken by the applicant from February to May, 1992 at the Nanjing College of Science and Technology likewise did not satisfy the training requirements in the CCDO; and that he would only consider any secretarial or executive secretarial experience postdating the certificate which the applicant obtained in February, 1999.
The respondent submits that a person cannot have any years of experience performing in an occupation for which that person is not qualified. Chen v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 265 (F.C.T.D.) is offered in support of this submission. The respondent submits the visa officer is neither arbitrary, biassed nor painfully unreasonable in limiting the applicant's work experience to the period subsequent to her obtaining a certificate. Huey v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 729, IMM-2753-98 (May 14, 1999) (F.C.T.D.) is offered in support of this submission. The respondent argues the adopted practice recognizes the scheme of the Regulations that no one should be issued a landed immigrant visa to pursue an occupation according to either the CCDO or the NOC (as the case may be), for which he or she is not qualified to pursue. Furthermore, the respondent submits the definitions in the CCDO are binding and not merely guidelines. Haughton v. Canada (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 226 (F.C.T.D.) is cited in support of this argument.
| [14] 2. It is clear from the visa officer's affidavit and CAIPS notes that he |
| notified the applicant that she had not met the training and entry requirements, and that he gave her an opportunity to address his concerns. |
The respondent argues it is clear from the visa officer's notes that "at conclusion of interview PI was counselled that her application was refused and the reasons for refusal were explained." The visa officer also states in the notes that "as an executive secretary per CCDO, PI did not have the basic training and entry requirements for further consideration, notwithstanding that her experience has a degree of complementarity with the CCDO definition."
The respondent submits that the circumstances in Yang, supra are distinguishable from those of the case at bar. The respondent submits it is clear from both the visa officer's affidavit and CAIPS notes, that he went into the applicant's educational background in detail. Furthermore, the applicant does not deny in her affidavit that she was questioned about her educational background and on the contrary, she specifically refers to some of the questions asked with respect to her educational background.
| [15] 3. The visa officer reasonably determined that it was mandatory to complete |
| the training and entry requirements before the applicant's work experience as an executive secretary could be taken into account. |
The visa officer reasonably determined, in the respondent's submission, that the certificate from the Jiansu Provincial Guidance Committee of Self-Taught Higher Education, which is a two year self-taught English language program, did not require a university entrance standard as a prerequisite to enter. This finding, in the respondent's submission, is based upon the visa officer's numerous years of processing applications from the People's Republic of China and his understanding of what type of courses require university entrance. The respondent submits the applicant has failed to show the visa officer exercised his discretion in bad faith, or in contravention of the principles of natural justice, or that he relied upon irrelevant or extraneous considerations. Therefore, the respondent submits this Court should not interfere with his decision. The decisions of [1982] 2 S.C.R. 2">Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2 and To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696, A-172-93 (May 22, 1996) (F.C.A.) are offered in support of the above.
| [16] The respondent argues it is not necessary at an interview for a visa officer to "put |
to" the applicant that he or she does not meet the training requirements. This is not a situation in which the applicant has presented contradictory evidence. Rather, the respondent argues the onus is on the applicant to satisfy the visa officer that he or she meets the educational requirements (which the applicant did not do in this case). In any event, the respondent submits it is clear from the visa officer's CAIPS notes that he informed her of his refusal, and gave her an opportunity to disabuse him of his findings. The respondent offers Umeda v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1603, IMM-2905-95 (December 6, 1996) (F.C.T.D.) in support of the above submissions.
| [17] The fact that the visa officer may not have asked questions in order to elicit |
information that might have assisted the applicant is not an error according to the respondent. The respondent submits that based on the decision of Hajariwala v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 222, there is no general obligation to ask questions that might assist the applicant. Umeda, supra is also offered in support of this argument.
| [18] 4. The visa officer reasonably referred to the applicant's occupation as an |
| "administrative clerk," rather than as a general office clerk based on the index to the CCDO. In any event, in assigning the applicant five points for SVP rather than four, the visa officer gave the applicant one more point than she was entitled to. |
The respondent argues it is clear from the visa officer's cross-examination that he reasonably referred to the applicant's occupation as an "administrative clerk." Furthermore, the applicant has not shown that the particular "title" of the occupation was a material error by which this application for judicial review should be allowed. The respondent submits that it is clear the visa officer (whatever the title of the occupation) referred to CCDO definition 4197-114. The visa officer also considered the applicant under the definition of office clerk (CCDO 4197-130), but determined that she did not meet the selection criteria.
| [19] The respondent submits the fact that the visa officer awarded the applicant five |
points for SVP rather than four, cannot be considered a material error, particularly since she was awarded one more point than she was entitled to. Thus, in the respondent's submission, the applicant has not shown how the visa officer acted unfairly or unreasonably in refusing her application.
| [20] The applicant stated the following issues: |
| 1. Did the visa officer err in law and in fact: |
| (i) by assessing the applicant as an administrative clerk when the applicant was qualified and experienced to pursue the occupation of executive secretary? |
| (ii) by failing to observe natural justice and procedural fairness by failing to notify the applicant that he found the applicant did not meet the training and entry requirements and by failing to give the applicant any opportunity to address his concerns? |
| (iii) by finding that it was mandatory to complete the training and entry requirements before the applicant's work experience can be taken into account? |
| 2. Did the visa officer err in law and in fact in only awarding the applicant 10 units for education? |
| 3. Did the visa officer err in law and in fact in assessing the applicant under the occupation of general office clerk but referring to the occupation as administrative clerk, an occupation which is not defined in the CCDO and for which the officer assigned her the wrong SVP? |
STATUTORY PROVISIONS
| [21] Schedule 1 of the Regulations read in part as follows: |
| ============================================================ |
| Column I Column II Column III |
| Factors Criteria Maximum Units |
| -------------------------------------------------------------------- |
| 1. Education (1) Subject to subsections (2) to (4), units of 16 |
| assessment shall be awarded as follows: |
| (a) where a diploma from a secondary school |
| has not been completed, zero units; |
| (b) where a diploma from a secondary school |
| has been completed, the greater number of |
| the following applicable units: |
| (i) in the case of a diploma that does not |
| lead to entrance to university in the country of |
| study and does not include trade or occupational |
| certification in the country of study, five units, |
| (ii) in the case of a diploma that may lead to |
| entrance to university in the country of |
| (iii) in the case of a diploma that includes |
| trade or occupational certification in |
| the country of study, ten units; |
| (c) where a diploma or apprenticeship certificate |
| that requires at least one year of full-time |
| classroom study has been completed at a college, |
| trade school or other post-secondary institution, the |
| greater number of the following applicable units: |
| (i) in the case of a diploma or apprenticeship certificate |
| program that requires completion of a secondary |
| school diploma referred to in subparagraph (b)(i) |
| or (iii) as a condition of admission, ten units, and |
| (ii) in the case of a diploma or apprenticeship certificate |
| program that requires completion of a secondary |
| school diploma referred to in subparagraph (b)(ii) as a |
| condition of admission, thirteen units; |
| (d) where a first-level university degree that requires |
| at least three years of full-time study has been |
| completed, fifteen units; and |
| (e) where a second- or third-level university degree |
| has been completed, sixteen units. |
| (2) Units of assessment shall only be awarded for a |
| diploma, degree or apprenticeship certificate referred to in |
| any of paragraphs (1)(b) to (e) that has been completed |
| at an institution other than a designated institution and in a field of study other than a designated field of study. |
| (3) Only a single diploma, degree or apprenticeship |
| certificate shall be taken into consideration when |
| determining the units of assessment to be awarded in |
| accordance with the applicable paragraph of subsection (1). |
| (4) The units of assessment set out in paragraphs (1)(b) |
| to (e) shall not be awarded cumulatively, and the number |
| of units of assessment set out in the applicable paragraph |
| that awards the greatest number of units shall be awarded. |
| 3. Experience Units of assessment shall be awarded 8 |
| for experience in the occupation in which the applicant is assessed under item 4 or, in the case of an entrepreneur, for experience in the occupation for which the entrepreneur is qualified and that the entrepreneur is prepared to follow in Canada, 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 |
| (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. |
And subsection 8(1) of the Act states:
| 8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
|
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
|
| [22] Issue 1 Did the visa officer err in law and in fact by: |
(i) Assessing the applicant as an administrative clerk when the applicant was qualified and experienced to pursue the occupation of executive secretary?
The applicant requested to be assessed as an executive secretary. The classification executive secretary normally requires 10 to 12 years of general education and 3 to 6 months of training in a business college, or one year in a special commercial course. The visa officer reviewed the educational background of the applicant and came to the conclusion that her education did not meet the basic entry and training requirements for the CCDO. The visa officer considered the applicant's diploma in English, her computer training and a five month part-time secretarial course in reaching his conclusion on her education. I cannot see where the visa officer made any reviewable error in coming to this conclusion. It is my opinion that based on a standard of review of reasonableness simpliciter, the decision on this point is not open to review. As was stated by the Supreme Court of Canada in [1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada [1982] 2 S.C.R. 2 at pages 7 and 8:
It is as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
| [23] 1. (ii) Failing to observe natural justice and procedural fairness by failing to |
notify the applicant that he found the applicant did not meet the training requirements and by failing to give the applicant any opportunity to address his concerns?
I am of the view that a visa officer is not under any duty to inform the applicant that what the applicant has presented to the visa officer does not meet the training and entry requirements for the intended occupation so that the applicant may address this matter. This is not a situation where the visa officer obtained information from an outside source and failed to allow the applicant to comment on the information (see Muliadi v. Canada (Minister of Employment Immigration) [1986] 2 F.C. 205 (F.C.A.), a case where the applicant was not given a chance of meeting the negative assessment of the provincial authorities before the visa officer acted on it). In my view, the visa officer made no error under this ground of review. He was only carrying out his duty under the Act and need only inform the applicant of his decision and the reasons therefor. In any event, it appears that the applicant was told by the visa officer at the end of the interview that he had refused her application and the reasons for the refusal.
| [24] 1. (iii) Finding that it was mandatory to complete the training and entry |
requirements before the applicant's work experience can be taken into account?
The visa officer found that the applicant must complete the training and entry requirements before the applicant's work experience can be taken into account. The visa officer stated that even if he assumed that the applicant's secretarial training completed in February, 1999 were deemed to satisfy the training and entry requirements, then since he would not count the experience obtained before she completed the course in February, 1999, she did not warrant any points of assessment for experience as she had worked for less than a year in that capacity. In Chen v. Canada (M.C.I.) [1999] F.C.J. No. 1123, IMM-4594-97,July 9, 1999 at paragraph 37, Lemieux J. held:
In my view, for the purposes of the Immigration Regulations, a person cannot have any years of experience preforming [sic] in an occupation for which that person is not qualified. The result is that, until a person completes the job training, he or she does not gain any experience units in the intended occupation until completion time. In this respect, I adopt the analysis of MacKay J. in Yu v. Minister of Employment and Immigration, 36 F.T.R. 296, where he said at page 301:
| . . . if the applicant is not deemed qualified for the occupation he or she intends to pursue in Canada, then regardless of the occupational demand in Canada for that occupation, no units of assessment are to be awarded under factor 4, or under factor 3, for experience. |
I adopt the conclusion of Lemieux J. and consequently, I would find that the visa officer did not err in determining that the experience gained prior to qualifying for an occupation cannot be counted towards experience in the intended occupation.
| [25] 2. Did the visa officer err in law and in fact in only awarding the applicant |
10 units for education?
I am of the view that the visa officer did not err in awarding 10 units of assessment for education instead of 13. This visa officer stated on cross-examination at question 62:
A. To the best of my knowledge, this diploma, this distance education diploma or certificate did not require a university entrance standard as a prerequisite to enter.
This being the case, the visa officer was correct in the awarding of 10 units of assessment for education.
[26] 3. Did the visa officer err in law and in fact in assessing the applicant under
the occupation of general office clerk but referring to the occupation as administrative clerk, an occupation which is not defined in the CCDO and for which the officer assigned her the wrong Specific Vocational Preparation ("SVP")?
The visa officer assessed the applicant under the occupation of general office clerk but referred to the occupation as administrative clerk, an occupation which was not defined in the CCDO. The visa officer also assigned her the wrong Specific Vocational Preparation (SVP) number of five points as opposed to four points. I am satisfied that although these were errors on the part of the visa officer, neither of these errors were material errors and subject to review by the Court. The applicant, in argument, was assessed under the occupation of CCDO definition 4197-114. Also, the assignment of an SVP of five points instead of four was a benefit to the applicant. This ground of review fails.
| [27] The applicant has requested her costs of this application but as she has not |
succeeded in the application, this need not be addressed. The respondent did not seek costs.
| [28] The application for judicial review is therefore dismissed. |
| [29] Counsel for the parties will be provided with an opportunity to make a request for |
certification of a serious question of general importance. Counsel for the applicant shall file written representations, if any, on or before January 19, 2001 concerning the certification of a serious question. Counsel for the respondent shall file a written response, if any, on or before January 26, 2001.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
January 12, 2001
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