Date: 20011213
Docket: IMM-1093-01
Neutral citation: 2001 FCT 1371
Ottawa, Ontario, this 13th day of December, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
LI CHENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(1) Li Cheng, a citizen of the People's Republic of China, earned a degree in Engineering in Computer Software, from Chengdu Electronic Engineering Institute in 1988. She applied for permanent residence in Canada under the Independent category as a "Computer Programmer/ Analyst". She brings this application for judicial review of the decision of a visa officer made on February 5, 2001, refusing her application.
(2) The visa officer awarded Ms. Cheng zero Units of Assessment for Occupational Demand and zero Units of Assessment for Work Experience. Ms. Cheng was awarded a total of 63 Units of Assessment, seven short of the number required for a visa to issue.
(3) The visa officer in her refusal letter dated February 5, 2001 stated:
Based on the interview and a review of the documents submitted with your application, I am not satisfied that you have performed a substantial number of the main duties, including the essential ones for this occupation. I have therefore assessed zero units of assessment for occupational demand. Because you are not qualified to work in this occupation in Canada, I have also awarded you zero units of assessment for experience.
(4) The applicant brings this application on the grounds that the visa officer erred in failing to award the applicant any points for Occupational Demand or for Work Experience on the basis that the applicant had not performed a substantial number of the main duties of either a computer programmer or a computer systems analyst. Alternatively, the applicant argues that the visa officer erred in not assessing the Applicant under the category of Computer Systems Analyst, where the applicant applied as both a computer programmer and computer systems analyst.
(5) The evidence before the visa officer is that the applicant graduated from a recognized university in computer science with a four-year degree in Engineering in Computer Software. From 1988 to 2000 the applicant worked in numerous businesses in computer programming and computer systems analyst positions performing some or all of the main duties of a Computer Programmer as described in the National Occupational Classification ("NOC") 2163. The applicant also had several years' experience performing some or all of the main duties of a Computer Systems Analyst (NOC 2162). The applicant correctly answered all but one of the technical questions asked by the visa officer at the interview.
(6) Notwithstanding this evidence, the visa officer was not satisfied that the applicant had performed a substantial number of the main duties, including the essential ones for a computer programmer or computer systems analyst, namely:
(a) written requirement specifications for computer programs, identifying the steps in the program and the algorithms to be employed; or
(b) written computer programs or software packages by coding instructions into machine readable form.
(7) It is noteworthy that the visa officer confirmed on cross-examination that the applicant would qualify as a computer programmer or computer systems analyst had she performed the duties as disclosed by the applicant and the evidence she presented. (Page 113 of Applicant's Record, lines 3 to 6 of page 49 of the transcript of cross-examination.) The visa officer did not challenge any of the evidence or question its authenticity. The documentation submitted by the applicant discloses that she worked for Sichuan Electronic Information Co., Ltd. as a Programming Analyst for three months from March to May 1999, and had the following duties:
· Design and implement database part of the software for commercial, financial usage, etc.
· Run application software in Windows and networks, including debugging and fixing the current application software.
· Co-operate tightly with our customers and operations. Develop detailed requirement analysis and document technique explanation report.
The documentation also discloses that the applicant worked for Chengdu Jinyin Card Aviation Service Co, Ltd. as a Software Analyst from August 1999 to the time of her application, with the following duties:
· In charge [of] setting up business management database for [the] company. Install it and guide operators to use the database.
· In charge [of] developing human resource, salary, and documentation management software. Install them and solve problem in running.
· Responsible [for] installation and maintenance of [the] company's operating system on all computers.
(8) Other documents submitted by the applicant confirm details of her work at the Chengdu Seamless Steel-Tube Corporation, showing among other things that she had "programmed the printing, query and statistic part of the project and maintained the system". While with the company she had the title of "Computer software Assistant Engineer" and won awards for her participation in several software projects. At paragraphs 15 and 16 of her affidavit, the applicant provides details of her work experience with several companies with regard to the following main duties of a Computer Programmer and Computer Systems Analyst as described in the NOC:
15. ...
(a) write computer programs or software packages by coding instructions and algorithms into machine readable form; ...
(b) test, debug, document and implement computer programs or software packages; ...
(c) maintain existing computer programs by making minor modifications as required; ...
(d) act as a resource person, solving computer problems for users;" ...
16. ...
(a) confer with clients regarding the nature of the information processing or computation needs a computer program is to address; ...
(b) analyze these needs into related components which can be solved through the application of computer technology; ...
(c) write requirement specifications for computer programs, identifying the steps in the program and the algorithms to be employed; ...
(d) test and implement computer programs and provide user training; ...
(9) No contrary evidence was before the visa officer. In her affidavit the visa officer states that she is not satisfied that the applicant provided specific information about her work as a computer programmer or a systems analyst. At paragraph 46 of her affidavit (page 11 of the Respondent's Record), the visa officer states:
I was of the opinion that Ms. Cheng had not satisfactorily explained her participation as a computer programmer or a systems analyst, in describing this project. I asked Ms. Cheng to tell me specifically and in detail, how she worked on this project as a computer systems analyst or computer programmer. Ms. Cheng replied that she collected information about quality standards, and then analyzed and designed the system declaration. She stated that she had module specifications and that she had written hundreds of programs.
According to the visa officer, the Applicant's evidence is that while working at the Seamless Steel-Tube Corporation, she was involved in information collection on quality standards, analysed the requirements and designed the system declaration. The applicant further stated that she had module specifications and that she had written hundreds of programmes. At paragraph 43 of her affidavit (page 11 of the Respondent's Record), the visa officer further states:
Ms. Cheng was given an opportunity to respond to my concerns, and I asked her to detail some of the projects she had worked on. Ms. Cheng provided me with some work samples, however these samples were brief and lacked detail.
However, on cross-examination, the visa officer admitted that she had not examined any one of the work samples provided by the applicant. (Page 74 of Applicant's Record, lines 4 to 16 of page 10 of the transcript of cross-examination.) Perhaps the visa officer's concerns would have been addressed had she considered the work samples provided. Moreover, if the visa officer was not satisfied as to the level of detail provided in the applicant's answers at the interview, this could have been pursued with follow-up questions. This was not done.
(10) Having reviewed the affidavits of the visa officer and the applicant, and having considered the transcript of the cross-examination, the visa officer's CAIPS notes and the evidence of the applicant's education and work experience, I am of the view that it was unreasonable for the visa officer to conclude that Ms. Cheng had not performed a substantial number of the main duties, including the essential ones, for a computer programmer or computer systems analyst.
(11) This is not a case where the visa officer mechanically adhered to the NOC description or required the applicant to perform all of the tasks in the description to qualify. Rather, in the appropriate exercise of her discretion she determined that some skills were essential to the occupation. It is in the reconciliation of the evidence with the visa officer's analysis of the elements of the occupations under review that I find fault.
(12) The award of zero unit for Occupational Demand and Work Experience is totally inconsistent with the uncontradicted evidence that the applicant performed some or all of the main duties of the occupations under review, and had extensive work experience in these fields. The visa officer's findings are not supported by the evidence, and are therefore made in a perverse and capricious manner. I am satisfied that the applicant has demonstrated on the balance of probabilities that the visa officer's finding was not rationally supported by any material before it. (Huiqiao v. Canada (MCI) (2001), 10 Imm.L.R. (3d) 132 at 136.)
(13) The application will therefore be allowed and the matter referred back to another visa officer for redetermination. It is not necessary for me to consider the alternative ground put forth by the applicant.
(14) The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed and the matter is referred back to another visa officer for redetermination.
"Edmond P. Blanchard"
Judge
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