Date: 20010628
Docket: IMM-5584-99
Neutral Citation: 2001 FCT 720
BETWEEN:
JUAN LING FENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review of a visa officer's decision dated October 14, 1999, refusing the applicant's application for permanent residence in Canada.
Background Facts
[2] The applicant, Juan Ling Feng, is a citizen of China who made an application for permanent residence in Canada under the assisted relative category with a family business job offer. The applicant's application was "paper screened", but she was not awarded sufficient units (55) for an interview. By letter dated October 14, 1999, the applicant's application was rejected. The applicant was assessed under the occupation of Supervisor, Textile Processing (NOC 9216.0) as follows:
Age 10
Occupational Demand 00
Education/Training Factor 05
Experience 04
Arranged Employment 10
Demographic Factor 08
Education 10
English 00
French 00
Total 47
[3] The applicant's job offer in Canada was from Hai Chieh Wu and it was approved by Citizenship and Immigration Canada. The applicant's husband is the brother of Hai Chieh Wu's wife. Thus, the applicant is the sister-in-law of Hai Chieh Wu. The visa officer admitted on cross-examination of her affidavit that she mistakenly thought the job offer was from a paternal aunt of the applicant's husband.
Applicant's Submissions
[4] The visa officer erred on the face of the record in confusing the family relationship between the applicant and the employer. As such, the visa officer could not have properly executed her duty in assessing this family business job offer since family reunification is a cornerstone of the family business job offer category.
[5] The visa officer erred in law in failing to award the applicant 10 units for occupation factor as the ETI for this occupation is greater than 5 units. As such, if the applicant was awarded 10 units for the occupational factor, she would have obtained at least 57 units in pre-screening and would have been entitled to an interview. The visa officer denied this applicant procedural fairness in failing to interview the applicant.
[6] The visa officer was not aware of paragraph 11(3)(a) of the Immigration Regulations, 1978, SOR 78-172 (the "Regulations") and as such, did not consider it contrary to paragraph 8 of the visa officer's affidavit.
Respondent's Submissions
[7] The respondent submits the decisions of To v. Canada (Minister of Employment and Immigration), (May 22, 1996) Docket A-172-93 (F.C.A.) and Shen v. Canada (Minister of Citizenship and Immigration) (1999), 6 Imm. L.R. (3d) 144 (F.C.T.D.) ought to be kept in mind when considering whether this Court should intervene in a decision.
[8] Although the visa officer acknowledged her error and recognized that the job offer was from the applicant's brother-in-law during cross-examination, the respondent submits she did not commit a reviewable error as nothing material turned upon it. It is clear from the transcript, according to the applicant, that what mattered was that the job offer came from a relative, not a specific type of relative. The respondent submits that in any event, the assessment under the occupational factor is the issue that is determinative of this application.
[9] The respondent submits the ETF for the applicant's occupation is 5 and that an ETF of 5 is equivalent to an ETI of 3. The applicant could only have been awarded an extra 10 units if her ETI equalled 5 or more. Furthermore, the respondent submits Factor 2 of Schedule I of the Regulations requires the visa officer to choose the lowest of the ratings to assess the ETF when more than one ETI is identified in the NOC. In this case, the visa officer therefore selected the ETI of 3+ instead of the other ETI of 6+, and matched it to the grid to determine the ETF of 5.
[10] The visa officer stated in her affidavit that with respect to positive discretion, she saw no other aspects in this application beyond those measured by the selection criteria that would assist the applicant in establishing successfully in Canada. Furthermore, the visa officer was not specifically asked to exercise positive discretion under subsection 11(3) of the Regulations. The respondent rejects the allegation that the visa officer does not know what positive discretion is as she only stated that she did not know the particular section number of the Regulation.
Relevant Statutory Provisions
[11] Factor 2 "Education and Training" and Factor 4 "Occupational Factor" of Schedule I of the Regulations, for which the maximum is 18 units, reads:
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Column I
Factors
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Column II
Criteria
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Column III
Maximum Units
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. . .
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2. Education and Training
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(1) To be measured by the amount of formal education and professional, vocational, apprenticeship, in-plant or on-the-job training specified in the National Occupational Classification as being necessary to acquire the information, techniques and skills required for the occupation in which the applicant is assessed under item 4. Units of assessment shall be awarded as follows:
(a) when no formal education or training is require, one unit;
(b) when some secondary school education, on-the-job training or experience is required, two units;
(c) when a secondary school diploma is required, five units;
(d) when the completion of course work, training, workshops or experience related to the occupation, ordinarily on the completion of secondary school, is required, seven units;
(e) when a certificate or diploma of a college or technical school is required or when the completion of an apprenticeship program, a specialized training program or a vocational school training program is required, fifteen units;
(f) when a university degree at the bachelor's level is required, seventeen units; and
(g) when a university degree at the master's or doctoral level or a professional degree that requires additional education beyond the bachelor's level is required, eighteen units.
(2) When more than one Education/Training Indicator is identified in the National Occupational Classification for a given occupation, the lowest of the ratings shall be used to assess the Education and Training Factor.
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18
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Column I
Factors
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Column II
Criteria
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Column III
Maximum Units
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4. Occupational Factor
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(1)Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation (a) for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification;
(b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and
(c) that the applicant is prepared to follow in Canada.
(2) The employment opportunities shall be determined by taking into account labour market activity on both an area and a national basis, following consultation with the Department of Human Resources Development, provincial governments and any other relevant organizations and institutions.
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10
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[12] Subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172 states:
| 11.(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
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11.(3) L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
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Issues
[13] 1. Did the visa officer err in law in failing to award the applicant 10 units for
occupational factor as the ETI for this occupation is greater than 5 units? Specifically, if the applicant was awarded 10 units for occupational factor, she would have achieved at least 57 units in pre-screening and would have been entitled to an interview. Did the visa officer deny the applicant procedural fairness in failing to interview the applicant?
2. Did the visa officer err on the face of the record in confusing the family
relationship between the applicant and the employer? Specifically, the visa officer could not have properly executed her duty in assessing this family business job offer since family reunification is a cornerstone of the family business job offer category.
3. The visa officer was not aware of section 11(3) of the Immigration Regulations, 1978 (positive discretion) and as such, did not consider it contrary to the visa officer's assertion in paragraph 8 of her affidavit.
Analysis and Decision
[14] The visa officer did not award any units of assessment to the applicant under the occupational factor (Factor 4) of Schedule I of the Regulations. The visa officer deposed on cross-examination that she had been taught at a training session that should an occupation have two Education/Training indicators shown on the NOC, the officer should then use the lowest of the ratings. I have reviewed Schedule I of the Regulations and it only states that you use the lowest of the ratings when education and training (Factor 2) is assessed. No mention is made of using the lowest rating when assessing the occupational factor under Factor 4 (see Schedule I, Factors 2 and 4 of the Regulations).
[15] As well, the Career Handbook, NOC Part 2, published by Human Resources Development Canada, which is used by visa officers, states under the heading Supervisors, Textile Processing that the position has two Education/Training indicators: 3+ and 6+.
[16] The Department Manual entitled, Immigration Canada, Chapter OP5 Processing Independent Immigrants, states at page 19 under the heading Occupation Factor:
The full 10 units available under the "Occupation Factor" are awarded if applicant has a validated offer of employment in an occupation to which the NOC assigns an ETI number equal to or greater than five (5). (Note that the NOC figure five (5) converts to (15) units of assessment under the "Education Training Factor").
The full 10 units available under the "Occupation Factor" are also awarded to any applicant whose occupation has been designated by the Minister (see section 4.1.5).
If a candidate is awarded no units under the occupation factor, i.e. the candidate's occupation is not on "The General Occupations List", or has not been designated by the Minister or does not have a validated offer of employment, further processing is barred.
There is no reference here to picking the lowest ETI with respect to Factor 4 (occupational demand), if two are present on the NOC. The above clearly states " . . . to which the NOC assigns an ETI number . . ." and not " . . . to which the visa officer assigns an ETI number . . . ". The applicant has a validated offer of employment and one of the Education/Training indicators is 6+. Therefore, it follows that the applicant should have been awarded 10 units of assessment under the occupation factor. The visa officer was in error to pick the lowest of the Education/Training indicators with respect to Factor 4, as there is no legal authority for such a conclusion. Picking the lowest Education/Training indicator applies to Factor 2, Education and Training. Had the visa officer properly assessed Factor 4, the applicant would have received 57 units; thus entitling her to a personal interview pursuant to paragraph 11.1(a)(ii) of the Immigration Regulations, 1978. The visa officer's decision to choose the lower ETI with respect to Factor 4 of Schedule I is an error of law. Therefore, this applicant for judicial review is allowed.
[17] Because of my decision on Issue 1, I need not deal with Issues 2 and 3.
[18] The parties shall have one week from the date of this decision to submit a serious question of general importance, if any, for my consideration.
"John A. O'Keefe"
J.F.C.C.
Halifax, Nova Scotia
June 28, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5584-99
STYLE OF CAUSE:JUAN LING FENG
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FRIDAY, MAY 11, 2001
REASONS FOR ORDER OF O'KEEFE J.
DATED: THURSDAY, JUNE 28, 2001
APPEARANCES:
Mr. C. Rotenberg, Q.C.
FOR APPLICANT
Ms. C. Mitchell
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Cecil L. Rotenberg, Q.C.
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
FOR APPLICANT
Department of Justice
Toronto Regional Office
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010628
Docket: IMM-5584-99
Neutral Citation: 2001 FCT _____
BETWEEN:
JUAN LING FENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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