Docket: IMM-7204-10
Citation: 2011 FC 1279
Ottawa,
Ontario, November 9, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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SHU CHEN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, Shu Chen is a Chinese national. He has a wife, Ji Weiwei, and a
son. Mr. Chen applied for permanent residency in Canada on August 4, 2010. On
October 13, 2010 his application was refused by the Visa Officer (Officer) at
the Canadian Embassy in Beijing,
China. The applicant scored 65
out of the minimum-necessary 67 points required to be successful in his
application category. The Officer awarded points as follows:
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Points
Assessed
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Maximum Possible
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Age
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10
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10
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Education
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25
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25
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Official
Language Proficiency
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9
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24
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Experience
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21
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21
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Arranged
Employment
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0
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10
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Adaptability
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0
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10
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TOTAL:
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65
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100
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[2]
This
application for judicial review is limited to a review of the Officer’s failure
to award points for the applicant’s spouse in the Adaptability category - this
is the only ground that the applicant has advanced. Mr. Chen does not take
issue with the other points allocated to him, but argues that he should have
been awarded four (4) points in the Adaptability category, as opposed to the
zero (0) he received, based on his wife’s educational credentials.
[3]
The
applicant’s wife attended two post-secondary schools, the Huaihai Communications Vocational College from September
1988 to July 1991 and the Correspondence Institute of Party School of the
Central Committee of Communist Party of China from August 1995 to December
1997. However, the applicant’s spouse’s education was not recognized by China
Academic Degree and Graduate Education Development Centre (Cadgedc), a Chinese government
organization that certifies post-secondary educational credentials.
[4]
The
letter provided to the applicant by Citizenship & Immigration Canada (CIC)
explaining the refusal of his application is of a boilerplate type; however,
the Officer wrote in respect of the applicant’s application:
I
have now completed the assessment of your application for a permanent resident
visa as a skilled worker. I have determined that you do not meet the
requirements for immigration to Canada.
[…]
You
have obtained insufficient points to qualify for immigration to Canada, the minimum requirement being 67 points: You have not
obtained sufficient points to satisfy me that you will be able to become
economically established in Canada.
[…]
Following
an examination of your application, I am not satisfied that you meet the
requirements of the Act and the regulations for the reasons explained above. I
am therefore refusing your application.
[5]
The Field
Operating Support System (FOSS) / Computer Assisted Immigration Processing
System (CAIPS) notes which form part of the decision, provide some limited
insight into the Officer’s reasoning:
ADAPTABILITY
0
(PA is married, no relative in Canada, no previous work/study in Canada, no arranged employment.)
---------
TOTAL
65
As
per Cadgedc, spouse has a diploma
from Party school which is not belong [sic] to national education system, no
points given in above grid. vo pls review spouse’s education.
[6]
The
applicant argues that the Visa Officer did not give credit, as he ought to
have, for his wife’s education. To be specific, he argues that the Officer
made an error in law by treating the Cadgedc
recognition as a necessary requirement under the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA) and Immigration and
Refugee Protection Regulations (SOR/2002-227) (the Regulations) in order to establish
post-secondary educational credentials and breached procedural fairness in
failing to consider other documentary evidence in support of his application.
The Correspondence
Institute of Party School of the Central Committee of
Communist Party of China
[7]
Considerable
deference is given to the decision of a visa officer assessing an application
in the Federal Skilled Worker (FSW) Class. As stated in Akbar v Canada, 2008 FC 1362 at paras
11-12:
The particular expertise of visa officers dictates a
deferential approach when reviewing their decision. The assessment of an
applicant for permanent residence under the FSWC is an exercise of discretion
that should be given a high degree of deference. To the extent that this
assessment has been done in good faith, in accordance with the principles of
natural justice applicable, and without relying on irrelevant or extraneous
considerations, the decision of the visa officer should be reviewed on the
standard of unreasonableness (Kniazeva v. Canada (Minister of Citizenship
and Immigration), 2006 FC 268 (CanLII),
2006 FC 268 at para. 15; Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII),
2008 SCC 9).
The DIO is authorized to make decisions relative to the
issuance of visas. He has greater expertise in this regard than the Court and
that expertise attracts deference (Singh Tiwana v. Canada (Minister of Citizenship and
Immigration), 2008 FC 100 (CanLII),
2008 FC 100).
[8]
The
onus was on the applicant to satisfy the Visa Officer that his wife’s
educational credentials qualified under the Regulations. He was aware,
from his own application, that her education was not accepted by Cadgedc. It was his
onus to provide evidence that, despite this fact, her education should still be
recognized. The evidence he provided did not satisfy the Visa Officer.
[9]
The Cadgedc report supplied to CIC by the
applicant stated:
Ms.
Ji Wewel (DOB: July 20, 1969) has completed her academic program of Economic
Management in Party School of the Central Committee of C P C from 1995 to 1997
This academic program is not [sic] belong to the National Education System.
[10]
On
July 19, 2010 Shu Chen wrote the Immigration Section of the Canadian Embassy in
Beijing a letter in which he cited the definition of “educational credential”
in the Regulations and conceded that although the Correspondence
Institute of Party School of the Central Committee of Communist Party of China
provides a post-secondary education program to party members, government
officers and other “normal” citizens, it does not belong to the National
Education System and hence is not an institution that can be certified by Cadgedc. This letter was included with
the August 4, 2010 application.
[11]
In Jiang v Canada (Citizenship
and Immigration),
2009 FC 1145, an applicant for permanent residence from China relied on two
post-secondary diplomas, but without a Cadgedc
certificate. Like the applicant here, the applicant in that case
provided certificates from the schools and an explanation as to why Cadgedc did not certify her
credentials. This Court found that reliance on CADGEDC certification was
simply a matter of weight and was not an improper fettering of discretion.
Justice James W.
O’Reilly wrote at paragraph 7:
Ms. Jiang asks the Court to find that the officer erred when
she concluded that her evidence of accreditation was insufficient and that her
explanation for not being able to obtain accreditation from the CADGEDC was
inadequate. In my view, the officer was entitled to give the evidence provided
by Ms. Jiang whatever weight she felt it deserved. I cannot find her conclusion
- that the certificate supplied by Ms. Jiang was insufficient – was
unreasonable. There was no evidence that the Shanghai Panel Telecommunications
Group was a proper accrediting authority; nor was there evidence that the Shanghai Technician School was an accredited institution.
[12]
An
applicant for permanent residence in the FSW class bears the onus of submitting
sufficient evidence in support of his or her application. A visa applicant
ought to know, from a reading of the Regulations, that an application
involves proof of accreditation of education credentials in order to gain adaptability
points and the onus is on the applicant to provide sufficient information to
satisfy a visa officer that the education credential in issue meets the
requirements of the Regulations.
[13]
The
July 19, 2010 letter indicates that the applicant knew that his spouse’s
education credential from the Correspondence Institute of Party School of the
Central Committee of Communist Party of China was not approved by Cadgedc and that CIC ordinarily relies
on Cadgedc to demonstrate that an
education credential is recognized by China. The onus was on him to provide satisfactory
evidence of accreditation in respect of his spouse’s education. The Officer’s
exercise of discretion was, in light of the evidence before him, reasonable.
The Huaihai Communication Vocational
College
[14]
The
applicant’s application included evidence of his spouse’s educational background:
Graduation
Certificate from the Huaihai Communications Vocational College dated July 30, 1991. This was notarized by a notary
public office and submitted with the August 4, 2010 application the Visa Office
in Beijing.
Certification
from the Huaiyin Institute of Technology, formerly the Huaihai Communications Vocational College, dated June 15, 2010 This was
submitted with the August 4 2010 application the Visa Office in Beijing
Certification
from the Huai’an Municipal Bureau of Education. This was submitted with the
August 4, 2010 application the Visa Office in Beijing.
Sealed
transcripts provided by the Huaiyin Institute of Technology for Weiwei Ji were
also provided with the August 4, 2010 application.
[15]
The
applicant stresses that the documents from the Municipal Bureau of Education, prima
facie, meet the criteria of the Regulations. The document was
however, given no weight by the Officer, and, in my view, rightly so. It does
nothing to meet or respond to the regulatory criteria of “educational
credentials”.
[16]
There
are two issues embedded in the assessment of a FSW application: the
substantive training or education and the certification. Proof of the former
without the later, as in this case, does not meet the legislated requirements.
Proof of attendance or graduation does not address or respond to the regulatory
requirement of accreditation. The Regulations are directed to
accreditation or regulation, a matter which is unaddressed by a graduation
certificate. The graduation certificate, or diploma, or degree is some
evidence that the individual has obtained training or education, but it is not
evidence in respect of the accreditation of the school that granted the degree.
The
documents do not link the education certificate received to any institution “…
recognized by the authorities responsible for registering, accrediting,
supervising and regulating such institutions in the country of issue.” as
required by the Regulations.
[17]
In
sum, the applicant provided no evidence that the Huaihai Bureau of Education, a
municipal authority, was sanctioned to recognize and accredit educational
institutions in China. He provided no
evidence that the Party school was recognized by any authority. The Visa Officer’s
conclusion that the certificates provided were insufficient was reasonable, and
fell in the range of possible and acceptable solutions which are defensible in
respect of the facts and law.
The Officer did not err in law by
treating Cadgedc recognition as a
requirement
[18]
The
second issue in this application is whether the Visa Officer improperly
fettered his discretion by rejecting the application by reason of the absence
of a Cadgedc certification. The applicant contends that
the Officer treated Cadgedc qualification as an unwritten policy
prerequisite and thus improperly fettered his discretion in not looking at the
substance of the supporting documents and what might lie behind them. In
support, he relies on Wang v Canada (Citizenship
and Immigration), 2009 FC 1107, at paras 34-38. In Wang, the officer
erred in rejecting presumptively the authenticity of the educational documents
without giving the applicant an opportunity to respond. It is in this type of
situation that the officers are expected to raise concerns.
[19]
The
CAIPS notes indicate that the Visa Officer’s reason for not accepting the
spouse’s certificate in respect of the Party School was
the absence of Cadgedc certification,
but
silent on the effect of graduation certificates supplied from the Huaihai Communications Vocational College. The
certifications provided with respect to the Huaihai Vocational
School
says nothing about accreditation, they simply confirm reenrollment. Again,
there was no link between the document and the substantive issue to which section
73 of the Regulations is directed – namely the status, authority and
accreditation of the institution providing the CADGEDC certification
would have addressed the issue of accreditation of the institution granting the
certificate. In my view, where the Officer was faced with no evidence
addressing the regulatory requirement, he did not fetter his discretion by
commenting on the type of evidence which, if tendered, would have met the
requirement.
No Opportunity to be Heard
[20]
I
now turn to the third ground of this application, the alleged failure to
provide the applicant further opportunity to respond to the Officer’s
concerns. In Kaur
v Canada (Citizenship and Immigration), 2010 FC 442 this Court held that there is no
obligation on a visa officer making an assessment of a skilled worker
application to clarify evidence or provide an opportunity to rebut
unsatisfactory evidence, especially when determining whether the evidence of
the applicant meets the requirements of the IRPA. In Kaur, the
applicant for permanent residence came from India. She applied as a skilled worker as a cook but
did not provide sufficiently clear evidence of her duties and experience. She
claimed, as does the applicant herein, that the visa officer had an obligation
to provide her an opportunity to respond and provide further evidence if he was
not satisfied with her documentation. This Court held:
The Applicant bears, and failed to discharge, the onus of
submitting sufficient evidence in support of her application. Fairness did not
require the visa officer to advise the Applicant of the inadequacy of her
materials. The Applicant was not entitled to an interview to correct her own
failings.
I agree with the Minister. The Applicant failed to discharge
her burden to present adequate evidence in support of her obligation, and the
visa officer had no duty to assist her in doing so. As Justice Marshall
Rothstein, then of the Federal Court, Trial Division, held in Lam v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239
(F.C.T.D.) at par. 3-4, the argument that an applicant might present prima
facie evidence which, though insufficient to support his or her application
will nevertheless trigger a duty to seek clarifications of this evidence :
gives an advantage to applicants for permanent residence who
file ambiguous applications. This cannot be correct.
A visa officer may inquire further if he or she considers a
further enquiry is warranted. Obviously, a visa officer cannot be wilfully
blind in assessing an application and must act in good faith. However, there is
no general obligation on a visa officer to make further inquiries when an
application is ambiguous. The onus is on an applicant to file a clear
application together with such supporting documentation as he or she considers
advisable. The onus does not shift to the visa officer and there is no
entitlement to a personal interview if the application is ambiguous or
supporting material is not included.
[21]
It
is true that in some cases a visa officer will have a duty to put his concerns
to an applicant. However, after having reviewed the cases where such a duty
was found to exist, Justice Richard Mosley explained in Hassani v Canada
(Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3
FCR 501, at
para 24, that “…it
is clear that where a concern arises directly from the requirements of the
legislation or related regulations, a visa officer will not be under a duty to
provide an opportunity for the applicant to address his or her concerns.” (See also, e.g., Roberts
v Canada (Citizenship and
Immigration),
2009 FC 518 at para 20 and the cases cited there for applications of that
principle).
[22]
The
question whether an applicant has the relevant experience, training or
education and requisite certificates, as required by the Regulations and
thus qualified for the trade or profession in which he or she claims to be a
skilled worker is “…based directly on the requirements of the legislation and
regulations.” and falls squarely within the reasoning of Mosley J. in Hassani.
Therefore it was up to the applicant to submit sufficient evidence on this
question and the Visa Officer was not under a duty to apprise him of his
concerns or to conduct more detailed inquiries to resolve the latent ambiguity:
Kaur, paras 9-12. Visa officers are not expected to engage in a
dialogue with the applicant on whether the Regulations are satisfied.
[23]
For
these reasons, the application for judicial review is dismissed.
[24]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that the
application for judicial review be and is hereby dismissed. No question for
certification has been proposed and none arises.
"Donald
J. Rennie"
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