Cai v. Canada (Citizenship and Immigration), docket IMM-883-96

     IMM-883-96

BETWEEN:

     CAI, Wenli

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD J.

         This is an application pursuant to section 18.1 of the Federal Court Act for judicial review of the decision of Susan Dragan, a visa officer at the Commission for Canada in Hong Kong, dated April 3, 1996, whereby the applicant's application for a permanent residence visa in the independent category was denied. The visa officer assessed the applicant in the occupation of administrative clerk. She denied the application on the basis that the applicant had achieved zero units of assessment under the category of occupational demand (factor 4, Schedule I of the Immigration Regulations, 1978 (hereafter the "Regulations")). Paragraph 11(2)(a) of the Regulations provides that an immigration officer shall not issue an immigrant visa if that immigrant fails to earn at least one unit of assessment for occupational demand.

         The applicant had originally applied for consideration under the occupation of executive secretary. The visa officer refused to assess her under that occupation on the grounds that the applicant did not have the "standard training requirements required to be considered in this occupation".

         The key issue raised on this judicial review application concerns not the actual assessment done by the visa officer in the category of administrative clerk, but rather the refusal by the visa officer to assess the applicant in the category of "executive secretary". The question is whether the visa officer erred by coming to the preliminary conclusion that the applicant did not satisfy the training requirements for an executive secretary, as required by factor 2 of Schedule I of the Regulations, i.e. Specific Vocational Preparation.

         Visa officers are expressly mandated to refer to the Canadian Classification and Dictionary of Occupations (CCDO) by the wording of factor 2, Schedule I of the Regulations, which provides for the allocation of units of assessment for Specific Vocational Preparation. Therefore, it is important to bear in mind the precise wording of the criteria that an applicant for permanent residence must satisfy in order to earn units of assessment for Specific Vocational Preparation. Schedule I of the Regulations indicates that Specific Vocational Preparation is:

         The description in the CCDO of those occupations falling under the general heading of 4111-Secretaries and Stenographers which include the occupation of secretary (#4111-110) and the occupation of executive secretary (#4111-111) includes the following requirements under the heading of Training and Entry Requirements:

     TRAINING AND ENTRY REQUIREMENTS

Secretaries and Stenographers normally require:

-      ten to twelve years of general education; and

     OR

Secretaries also require from three months to one year of stenographic experience to become proficient especially when a knowledge of the terminology of a particular field, such as medicine, law or engineering is required.

Court Reporters also require speed training in shorthand, or other methods of speedwriting and the use of shorthand machines and dictaphones.

         These are precisely the training requirements that the visa officer indicated to the applicant when she informed her that Canadian guidelines required her to have at least three to six months of full-time specific secretarial training, sometimes even up to one year, and that she therefore did not have the basic training required for consideration as an executive secretary.

         It is well established that the onus is on the applicant to fully satisfy the visa officer of the existence of all of the positive ingredients in his or her application. Accordingly, provided that the visa officer does not act unfairly, and/or makes an error of law apparent on the face of the record in arriving at his or her decision (such as considering extraneous criteria not contained in the CCDO definition), that decision is entitled to a significant amount of curial deference (see Hajariwala v. Canada, [1989] 2 F.C. 79 (F.C.T.D.)). In making his or her assessment, the visa officer is not only called upon to compare the applicant's experience and qualifications with those set out in Schedule I of the Regulations, but is also obliged to consider the applicant under every occupation he or she designates in his or her application, and is also vested with the "clear responsibility.... to assess alternate occupations inherent in the applicant's work experience".¹ If, however, the visa officer ascertains that an applicant does not meet the criteria for the occupation under which he or she seeks to be assessed (in this case the formal training requirements for the occupation of executive secretary) as stipulated by the definition in the CCDO, it is not unreasonable, in my opinion, for the visa officer to hold that the applicant cannot be further assessed in that occupational category (see Prasad v. Canada (Minister of Citizenship and Immigration), IMM-3373-94, April 2, 1996 (F.C.T.D.)).

         In the present case, after the applicant was given some opportunity to explain the duties she had performed in her various positions, not only did the visa officer conclude that the applicant did not satisfy the formal training requirements set out in the definition of executive secretary in the CCDO, the visa officer also noted that there was nothing in the supporting documentation supplied by the applicant to indicate the tasks she had performed in her various positions were commensurate with those performed by secretaries or executive secretaries in Canada, notwithstanding the fact that one of the positions she had held was ostensibly that of "executive secretary". Indeed, simply because the applicant herein may have performed some of the tasks performed by an executive secretary does not necessarily mean she is fully qualified to work in that capacity.

         Consequently, it does not strike me as unreasonable that the visa officer considered as she did the Training and Entry Requirements for secretaries and executive secretaries specified in the CCDO, and then on the basis that the applicant did not satisfy the said relevant requirements, declined to further assess the applicant's application for permanent residence in Canada in the category of executive secretary.

         Accordingly, this application for judicial review is denied.

         This is not a matter for certification pursuant to subsection 18(1) of the Federal Court Immigration Rules, 1993.

OTTAWA, Ontario

January 17, 1997

                                                                          JUDGE

¹      Chen v. Canada (Minister of Employment and Immigration), IMM-5588-93, June 2, 1995 (F.C.T.D.), at p. 4, citing Mr. Justice Muldoon's decision in Saggu v. M.C.I. (1994), 87 F.T.R. 134.