Date: 20000126
Docket: IMM-657-99
BETWEEN:
XIAO WEI ZHANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MULDOON, J.
| [1] This is an application, pursuant to section 18.1 of the Federal Court Act, S.C. 1990, for judicial review of a decision by a visa officer, made January 15, 1999, rejecting the applicant as a management consultant in the independent category. The applicant seeks certiorari quashing the decision of the visa officer, and mandamus directing the respondent to process the applicant"s application for permanent residence in a favourable manner or, in the alternative, to refer the application to a different officer for redetermination with such discretion as to this Court deems just. |
Facts
| [2] The applicant, Xiao Wei Zhang, is a citizen of the People"s Republic of China and is currently married to an engineer. In an application for permanent residence dated March 3, 1998 she applied in the independent category as a management consultant. The application was accompanied by two excellent reference letters from her current and former employers but providing only limited insight into her six years of work. She was granted an interview which took place at the Canadian Consulate General in Hong Kong on January 14, 1999. |
| [3] In a letter dated January 15, 1999, the applicant"s application for permanent residence was refused. The visa officer, Vice Consul Donald Barr, held in particular that the applicant did not have the requisite education or any experience as a management consultant. |
| [4] The visa officer determined that she did not have the required experience as a management consultant according to the NOC 1122.1. She earned a total of 65 units of assessment: |
| Education/Training Factor 15 |
| [5] The applicant claims that the visa officer erred in interpreting the term "is usually required" under the NOC, and finding that the applicant did not meet the employment requirements for the management consultant occupation. NOC 1122.1 (management consultant) provides that management consultants are "usually required" to have a bachelor"s degree or college diploma in business administration or commerce. The applicant mentions that the introduction section of the NOC defines the term "is usually required" to indicate something that is not always required by employers, and thus, the employment and training requirement is not a mandatory requirement. Therefore, it is argued that the visa officer interpreted the NOC requirements too restrictively. |
| [6] The applicant further argues that the visa officer erred in finding that her current job responsibilities were not inherent to the duties of a management consultant. She submits that the visa officer ignored the documentary evidence she supplied to the visa officer (reference letters of present and past employment describing her main duties). She contends that other than matters relating to the number of people in her company and financial records, she was not asked any questions by the visa officer relating to the main duties of a management consultant. |
| [7] She also argues that the visa officer erred in the manner he assessed the "personal suitability factor", in accordance with section 8 of the Immigration Regulations . The visa officer in his affidavit stated that after taking note that the average personal suitability rating is 4, he awarded the applicant 6 units of assessment. Thus, the applicant argues that the visa officer "began by fettering his discretion with an initial presumption that everybody gets a failing mark for this factor and he thereby erred in law". |
| [8] The respondent argues that the visa officer correctly assessed the applicant since he followed Schedule 1 of the Immigration Regulations (especially items 3 and 4 for the experience and occupational factor). The respondent submits that from the evidence (affidavits of the applicant and the visa officer), it is clear that the applicant has not performed a substantial number of the management consultant duties described in the NOC. |
| [9] The respondent also submits that the introduction (p. 22) of the NOC states that "usually required" means "is required". He alleges that the visa officer was correct in not attributing any points for experience since the applicant did not possess a bachelor"s degree or college diploma in business administration or commerce which "is usually required". |
| [10] He argues that, contrary to what the applicant claimed, the visa officer did ask questions about the main duties of the applicant as a management consultant. Indeed, the visa officer"s affidavit shows that he questioned the applicant regarding her functions within the company and provided the applicant with the opportunity to present evidence regarding her experience. The respondent argues that this affidavit should be preferred to the one of the applicant. The visa officer based his decision on his notes taken contemporaneously with the interview, whereas the applicant"s affidavit was sworn without the benefit of notes two months following the interview. He also submits that it is trite law that it must be assumed that the visa officer considered all the relevant evidence that was before him. He points out that the CAIPS notes mention the applicant"s reference letters. |
| [11] The respondent finally submits that the visa officer did not err in awarding the applicant 6 points for personal suitability. He indicates that the applicant awarded herself 7 points for that factor. Nevertheless, one may wonder why the visa officer raised the subject of his own "generosity" herein in the first place. The respondent submits that the awarding of units of assessment for personal suitability is discretionary and that this Court should not overturn the award absent an error apparent on the face of the record or a breach of the rules of procedural fairness. The respondent relies on Hanna v. Canada (Minister of Citizenship and Immigration), (IMM-1908-96, January 17, 1997) (F.C.T.D.). This Court is persuaded by the jurisprudence of the respondent. |
| [12] An award of units for personal suitability is a finding of fact and requires that a visa officer evaluate, in part, the sort of intangible factors not readily apparent to a justice on judicial review. It is therefore, only with the greatest caution that this Court will move against such decisions. The use by a visa officer of an average personality award to base that of the applicant cannot serve to move the Court. Nor does it amount to fettering the officer"s discretion. Instead, it is evidence of the visa officer attempting to relate the applicant"s score to those give to previous applicants, something that would allow for consistency in his decisions if little else. |
| [13] The applicant argued that the visa officer ignored the reference letters she provided. However, the CAIPS notes make a quick mention of what her employers consider of her work. In Chang Wen Hsu v. M.C.I. (IMM-3849-98 (April 21, 1999)), it was confirmed that "in the absence of an overriding error, it must be assumed that the visa officer considered all relevant evidence that was before her. The fact that she did not expressly indicate in her notes that she reviewed all the materials does not constitute an error in itself". |
| [14] Furthermore, the applicant claimed that the visa officer did not ask her any questions relating to the main duties of a management consultant. The visa officer"s CAIPS notes and affidavit show that he asked the applicant to describe the business of her employer company and her function within the company, he also asked her to provide details on the nature of her work. According to the CAIPS notes, the applicant answered that her duties were to give advice to her manager on sales promotions and contract negotiations. The advice given was of the following nature: telling her boss "to be cautious, not too hasty and to perform an investigation prior to making decisions". The visa officer confirmed in his affidavit that the applicant had ample time and opportunity to provide any information relevant to her experience as well as her application. Thus, it seems the applicant had an opportunity to explain her duties and work experience, however, the visa officer determined that she did not perform a sufficient number of the duties described in NOC 1122.1. In light of the evidence, this decision was reasonable. |
| [15] The applicant also contested the fact that she received 6 points for suitability. The CAIPS notes state: "Her employers have described her as a motivated and capable person and I found her to be so at the interview." As it was held in Ahmed v. M.C.I. (IMM-2600-96 (January 16, 1998)), it is not the role of his Court to "second-guess the findings of the visa officer". There is no evidence that the visa officer improperly weighted the evidence concerning the assessment of the personal suitability of the applicant. |
| [16] This application for judicial review will be dismissed. |
| [17] No costs are awarded to either party; both were well represented. |
(Sgd.) "F. C. Muldoon"
Judge
Vancouver, British Columbia
January 26, 2000
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-657-99
STYLE OF CAUSE: Xiao Wei Zhang
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 25, 2000
| REASONS FOR ORDER OF Muldoon, J |
DATED: January 26, 2000
APPEARANCES:
| Mr. Dennis Tanack For the Applicant |
| Mr. Victor A. Caux For the Respondent |
SOLICITORS OF RECORD:
Dennis Tanack
Barrister & Solicitor
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General for Canada For the Respondent |
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