Date: 20000110
Docket: IMM-3657-98
BETWEEN:
XUE HU JIAN
Applicant
and
THE MINISTER OF CITIZENSHIP and IMMIGRATION
Respondent
REASONS FOR ORDER
O"KEEFE, J.
[1] This is an application by XUE HU JIAN (applicant) for Judicial Review of the decision of Mary Coulter, Vice-Consul, Immigration Officer, Immigration Section at the Canadian Consulate General, Hong Kong dated June 19, 1998. Ms Coulter decided that the applicant did not meet the requirements for permanent residence in Canada because:
| As explained at interview, I am not satisfied that you meet the training/entry requirements for your intended occupation of Physiologist per the Canadian Classification and Dictionary of Occupations which are as follow: |
| - A four year bachelor"s degree in the biological sciences, and; |
| - Post-graduate studies of two years or more leading to a master"s degree together with work experience in the specialty. |
| There is no other occupation apparent on your application in which you are qualified and experienced, and under which your application would be successful. |
| I have also assessed your application under the National Occupation Classification (NOC), but regret that the total units of assessment are also insufficient for me to approve your application. |
BACKGROUND FACTS
[2] The applicant applied for permanent residence in Canada on April 30, 1997. The applicant appeared for an interview before Mary Coulter on May 1, 1998. The applicant stated in his application that his intended occupation in Canada was a Physiologist (Research). However it would appear from the interview notes contained in the record filed pursuant to Rule 317 (Record page 5) and the refusal letter of Ms Coulter (Record page 8) that the applicant was actually assessed as a physiologist.
[3] The applicant was interviewed by Ms. Coulter on May 1, 1998 and Ms. Coulter issued the letter denying his permanent residence in Canada on June 19, 1998.
[4] The applicant applied for permanent residence in Canada pursuant to the assisted relative category and in order to be selected as an assisted relative the applicant must have 65 units of assessment.
[5] Ms. Coulter found that the applicant did not meet the training entry requirements for the intended occupation of physiologist as per the Canadian Classification and Dictionary of Occupations which are a four year bachelor"s degree in biological sciences and post-graduate studies of two years or more leading to a masters degree together with work experience in the specialty.
[6] The applicant was also assessed by Ms. Coulter under the National Occupational Classification (NOC) as a physiologist and failed to achieve 65 points of assessment required in this category.
[7] Ms. Coulter also assessed the applicant under the classification of Research Technician and he received 61 points of assessment.
[8] The applicant attended the Inner Mongolia Medical College in Huhhot, People"s Republic of China from 1978 to 1982 with a Bachelors degree in Medicine. He was employed as a physiologist from 1983 until the date of the interview. He was still so employed on July 15, 1998.
ISSUES
[9] The issues stated by the applicant are:
| 1. Whether the visa officer failed to observe a principle of natural justice, procedural fairness or other procedure that she was required by law to observe. |
| 2. Whether the visa officer based her decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the material before her. |
| 3. Whether the visa officer erred in law in deciding to refuse the application for permanent residence of the applicant. |
These issues are refined in the application to a review in the following areas:
| 1. Failure to assess applicant under "Biologists and Related Scientists (NOC 2121) |
LAW
[10] The law relating to the actual assessment of the applicant is to be found in Column 1, Schedule 1 of the Immigration Regulations, SOR/78-172 (Regulations). Schedule 1 provides a series of headings under which points of assessment are awarded to the applicant based on the visa officer"s assessment of the applicant under each of these headings.
[11] In addition on may 1, 1997 a new occupation classification system called the National Occupational Classification (NOC) was adopted to replace the Canadian Classification and Dictionary of Occupations (CCDO). Subsections 2.03(1) and (2) of the Regulations state:
| 2.03(1)For the purpose of an assessment by a visa officer under section 8, in respect of an application for a visa that was made under section 9 of the Act before May 1, 1997 and was still pending on that date, the applicable factors set out in Schedule I, as that Schedule read immediately before May 1, 1997, shall apply.
(2) If an application for a visa referred to in subsection (1) is refused, the visa officer shall reassess the applicant in accordance with the applicable factors set out in Schedule I, as that Schedule read on May 1, 1997. SOR/97-242, s. 2.
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| 2.03 (1) L'appréciation par l'agent des visas aux termes de l'article 8, dans le cadre d'une demande de visa pendante au 1er mai 1997 qui a été présentée avant cette date en vertu de l'article 9 de la Loi, se fait suivant les facteurs applicables prévus à l'annexe I dans sa version antérieure au 1er mai 1997.
(2) Lorsque la demande visée au paragraphe (1) est refusée, l'agent des visas apprécie à nouveau le demandeur suivant les facteurs applicables prévus à l'annexe I dans sa version du 1er mai 1997. DORS/97-242, art. 2.
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Thus an application filed before May 1, 1997 that is still pending on May 1, 1997 shall be assessed under the CCDO system as it relates to occupations. If the application for a visa is refused as a result of applying the CCDO system to occupation then the visa officer must reassess the applicant under the NOC system for classifying occupations. There is a calculation table for corresponding occupations under the two systems.
ANALYSIS AND DECISION
[12] From a perusal of the law stated in paragraph 10 of this application it is incumbent upon the visa officer, when assessing any application filed before May 1, 1997 (this application was filed on April 30, 1997) to firstly assess the applicant pursuant to Schedule 1 of the Regulations using the CCDO classification system for classification of the applicant"s occupation. If the applicant doesn"t obtain a total of sixty-five (65) points of assessment then the visa officer must reassess the applicant in accordance with the applicable factors set out in Schedule I as that Schedule read on May 1, 1997 i.e. using the NOC classification system for occupations.
[13] A review of the record of the tribunal shows that Ms. Coulter found that the applicant did not meet the training/entry requirements for the occupation of physiologist as per the CCDO as he did not have a master"s degree.
[14] The visa officer also states in her decision that she assessed the applicant under the NOC system and decided that the total units of assessment are also insufficient for me to approve your application. The visa officer also found that a master"s degree was required for a research scientist under the NOC system. (Record page 5)
[15] I am unable to determine from the record or decision whether the applicant was assessed for all of the required factors set out in column 1 of Schedule 1 for a physiologist under the NOC system as the visa officer states that she did her assessment of the applicant as a "Research Technician Life Sciences".
[16] The CCDO and NOC have a conversion table to convert occupations from the CCDO to the NOC system (applicant"s application record page 33 - 38). By reference to that table it can be determined that a physiologist (CCDO 2133214) is comparable to biologists and related scientists (NOC 2121). It would further appear from the document entitled "2121 Biologists and Related Scientists" that biologists and related scientists conduct both basic and applied research. Physiologists are also listed in this unit group. The document also shows that a bachelor"s degree in biology or in a related discipline is required for biologists. It would seem to me that the same reasoning would apply to a physiologist. A physiologist would only require a bachelor"s degree in order to do basic research. If the physiologist wanted to do research at a higher level then the physiologist would likely need a master"s degree.
[17] In the present case the applicant had a bachelor"s degree in the required area of physiology plus fourteen (14) years of work experience and therefore should have been assessed under the occupation classification of "2211 Biologists and Related Scientists". By not considering this occupation Ms. Coulter failed to take into account a relevant consideration and therefore improperly exercised her discretion. I wold therefore set aside the decision of Ms. Coulter and refer the application back for reconsideration by a different visa officer.
[18] In light of the conclusion I have reached it is not necessary to rule on the matters of personal suitability, occupation factor and experience factor. However, in my opinion, it is not the role of this Court to second guess the visa officer in these areas and then substitute its opinion for that of the visa officer as long as the visa officer has carried out the duties required by law.
[19] The applicant raised the issue that the visa officer failed to assess the applicant"s spouse. The applicant was shown as the principal applicant on the application and no request was made to assess his wife, hence there was no requirement for the visa officer to assess the applicant"s spouse.
[20] In the circumstances of this case there will be no order as to costs.
[21] The decision of the visa officer is therefore set aside and the application is referred back for reconsideration by a different visa officer.
[22] Since I was not satisfied that the question proposed met the criteria under subsection 83(1) of the Immigration Act of being "a serious question of general importance". I did not certify a question for appeal.
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
January 10, 2000
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