Date: 20001006
Docket: IMM-1537-99
BETWEEN:
WAN RUI HUA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] This is an application for judicial review of a decision rendered on February 23, 1999 by a Designated Immigration Officer1 at the Canadian Consulate General in Hong Kong, China, which refused the applicant's application for permanent residence in Canada.
[2] The applicant submitted an application for permanent residence in Canada in the Independent category governed by subsections 8(1) and 9(1) of the Immigration Regulations, 1978, S.O.R./78-172 as a computer hardware engineer, NOC 2147. Having conducted a selection interview with the applicant, the visa officer concluded that the applicant did not meet the requirements for immigration as a computer hardware engineer, NOC 2147. The applicant was then assessed as an electronic engineering technician, NOC 2241.2, but still failed to qualify mainly on the ground of his lack of experience.
[3] Based on this lack of experience, the visa officer awarded the applicant 0 units under the Experience Factor. Subsection 11(1) of the Regulations precludes visa officers from awarding visas to candidates who fail to earn at least one point in the Experience Factor.
[4] The applicant submits that the visa officer ignored the definition of computer hardware engineer in the NOC and did not properly evaluate his work experience as a computer hardware engineer, NOC 2147.
[5] The applicant also submits that the evaluation made by the visa officer ignores the facts that he has the required educational criteria for computer hardware engineer, with a positive evaluation by the Canadian Council of Professional Engineers ("CCPE") of the equivalency in Canada of such an education, and that he has more education than is required for an electronic engineering technician, NOC 2241.2. At last, the applicant submits that he should have been given the opportunity to disabuse the visa officer's concerns as to his experience in the field of computer engineering.
[6] Having reviewed the tribunal record, focussing on the CAIPS notes, the applicant's affidavit, and the letters of reference of his former employers, I am not persuaded that the visa officer who conducted the interview properly assessed the experience factor with respect to the applicant.
[7] It must be noted that the NOC, under the "2147 Computer Engineers" heading, provides that a computer hardware engineer must perform some or all of the following duties:
| Plan, design and coordinate the development of computers and related equipment. |
| Supervise and inspect the installation, modification and testing of computers and related equipment. |
| Supervise drafters, technicians, technologists and other engineers. |
[8] The respondent did not find appropriate to file an affidavit by the visa officer who interviewed the applicant. It appears however from the CAIPS notes, taken contemporaneously with the interview, that the applicant explained and described some of his work experience as a computer hardware engineer. The notes taken by the visa officer reveal that the interview was concentrated on the first part of the functions performed by a computer hardware engineer, i.e. planning, designing and coordination of the development of computers and related equipment.
[9] The case law does recognize the discretion of the visa officer to determine that some skills are essential to an occupation, as stated by Justice Reed in Wu v. Canada2:
| The 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 (. . . ) The CCDO supports the conclusion these are basic skills necessary to fulfil the position (. . . ) The visa officer was not merely imposing his own personal views on the evaluation. |
[10] However, in Muntean v. Minister of Citizenship and Immigration3, Mr. Justice Cullen stated that job descriptions in the CCDO (now NOC) should be broadly construed and that not every duty set out must be performed:
| job descriptions in the CCDO should be broadly considered and (. . .) an applicant need not perform all of the tasks in the description to qualify in a particular occupational category. If a visa officer mechanically adhered to the CCDO descriptions and demanded that an applicant has performed each described job duty, it could be said that the visa officer would be fettering his or her discretion. |
In my view, this jurisprudence is still applicable under the new regime where the respondent uses the NOC rather than the CCDO to categorize applicants' occupations.
[11] In the case at bar, the evidence4 clearly established that the applicant's experience was mainly in the Supervision and inspection of the installation, modification and testing of computers and related equipment; Supervise drafters, technicians, technologists and other engineers. The definition of computer hardware engineer requires "some or all" of the three aspects of the definition.
[12] As the record shows, the visa officer did not state that one of the three skills was essential to the position of computer hardware engineer. In these circumstances, it seems that the visa officer placed undue emphasis on the applicant's programming experience and did not analyse the other requirements of the position.
[13] Further, the CAIPS notes do not reveal that the applicant was questioned by the visa officer in regards to his supervision and planning skills. The record shows that the applicant has plenty of experience in such duties that are required in the position of computer hardware engineer.
[14] The respondent submits that as stated in Lim v. Minister of Employment and Immigration5 determining the qualifications of an applicant is a matter of fact which, unless patently unreasonable, ought not to be disturbed. We agree that it is the visa officer who is in best position to determine the qualifications of the applicant.
[15] However, in the case at bar, the decision is not strictly a comparison of the applicant's experience and knowledge with the enumerated duties found in the NOC for a computer hardware engineer, but rather the interpretation of the law. In such a case, as stated Mr. Justice Muldoon in Lu v. Canada (Minister of Citizenship and Immigration)6:
| The need to use a definition or meaning signals that the decision no longer concerns merely a question of fact but concerns the application of facts to statutory law (. . .) The standard of review in Lim, supra, was adopted solely in the context of a finding of fact and does not bind this Court when dealing with questions of mixed fact and law. The appropriate standard may be determined, however, using the pragmatic and functional test; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (hereinafter Pushpanathan). Pursuant to this test, the Court notes that the question is one of mixed fact and law and notes that there is no privative clause relevant to visa officer decisions. These facts militate against the Court showing deference to the visa officer's decision. Subsection 9(2) of the Immigration Act shows clearly that the expertise of a visa officer lies in determining whether an applicant for permanent residence has satisfied the criteria set out in the NOC, and suggests that this Court should show deference to the visa officer's finding. That the visa officer is determining the rights of the applicants as opposed to dealing with a polycentric issue also favours deference being shown by this Court. On carefully balancing these factors this Court considers that the proper standard of review is that of unreasonableness. |
[16] The visa officer determined that the applicant did not have the required experience for the computer hardware engineer position. The visa officer stated that: "Pi (applicant) provided simple illustration consisting of connections of main PC to HUB and then to 50 PC's". The visa officer should have expressed his doubts on the skills of the applicant so he could have overcome the visa officer's allegations. As stated by Mr. Justice Stone of the Federal Court of Appeal in Muliadiv v. Canada (M.E.I.)7:
| [. . .] I think it was the officer's duties before disposing of the application to inform the appellant of the negative assessment and to give him a fair opportunity of correcting or contradicting it before making the decision required by the statute. It is, I think, the same sort of opportunity that was spoken of by the House of Lords in Board of Education v. Rice, [1911] A.C. 179, in these oft-quoted words of Lord Loreburn L.C., at page 182: |
| They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. |
[17] Moreover, recent case law established that visa officers who awarded points for the occupational factor, but no points for experience, committed a material error, paving the way to judicial review8. That is exactly the situation in the present case, as it appears from the results on record:
| Education/Training Factor 17 |
[18]
In these circumstances, the Court will intervene to set aside the decision of the Designated Immigration Officer, dated February 23, 1999, which refused the applicant's application for permanent residence in Canada. Counsel for the applicant requested certification of two questions, but in view of the conclusion I have come to, no question needs to be certified.
ORDER
This application for judicial review is allowed and the matter is remitted for redetermination by a different visa officer.
_____________________________
Judge
Ottawa, Ontario
October 6, 2000
__________________
1 For the purposes of this decision, the person designated by the Minister pursuant to s.109(2) will be called "the visa officer".
2 Wu v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 4 (IMM-1330-98)
3 (1995), 31 Imm.L.R. (2d) 18 (F.C.T.D.) at 22.
4 Pp. 21and 49 of the Applicant's Record.
5 (1991), 12 Imm.L.R. (2d) 161 (F.C.A.)
6 [1999] F.C.J. No. 1907.
7 [1986] 2 F.C. 205 at 215.
8 Kopyl v. Minister of Citizenship and Immigration, 2000-07-19, IMM-3185-99 (Dawson J.); Dauz v. Canada (Minister of Citizenship and Immigration) (1999), 2 Imm.L.R. (3d) 16 (F.C.T.D.) (Sharlow J.); Osman v. Canada (Minister of Citizenship and Immigration) (2000), 4 Imm.L.R. (3d) 62 (F.C.T.D.) (Reed J.)
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