Date: 20000323
Docket: IMM-2489-99
BETWEEN:
YAN LUO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of Daniel Vaughan, Vice Consul (the "Visa Officer") at the Canadian Consulate General in Hong Kong rendered on April 29, 1999, refusing the applicant"s application for permanent residence in Canada.
[2] The applicant submitted his application for permanent residence to the Canadian Consulate General in Hong Kong under the Independent/Skilled Worker category as a mechanical engineer on August 3, 1998.
[3] On the immigrant application form the applicant indicated that his intended occupation in Canada was "mechanical engineer (NOC 21320)".1
[4] The applicant graduated from Northwest China Engineering University in Xian, People"s Republic of China ("PRC") with a bachelor of engineering degree in 1994 and has worked as an engineer at the Guangzhou Aircraft Maintenance Engineering Company Ltd.("GAMECO") in Guangzhou, PRC since then.2
[5] The applicant was interviewed by the Visa Officer on April 26, 1999 and was informed by letter dated April 27,1999 that his application for permanent residence was refused.
[6] The Visa Officer determined that the applicant"s job duties and experience, do not meet the requirements for Mechanical Engineering as set out in the National Occupational Classification ("NOC"). Therefore, he was awarded 0 points under the experience factor. Subsection 11(1) of the Immigration Regulations3 provides that a visa officer may not issue a visa to an immigrant who fails to earn at least one unit of assessment for experience.
[7] Under the occupation mechanical engineer, the applicant was awarded the following units of assessment:
| Education/Training Factor 17 |
[8] The Visa Officer also assessed the applicant under the occupation Aircraft Mechanics NOC 7315.1 but determined that he failed to earn the requisite points. As a result, the Visa Officer refused the applicant"s application for permanent residence.
[9] The applicant submits that the Visa Officer erred in finding that the applicant"s current job duties are not inherent to the duties of a Mechanical Engineer (Title 2132) or an Aerospace Engineer (Title 2146) under the NOC and that the Visa Officer made an erroneous finding of fact, ignored relevant evidence or failed to properly consider the evidence when he awarded the Applicant 5 points under the personal suitability factor.
ANALYSIS
| (A) Experience Assessment |
[10] In Haughton v. MCI4, Justice Rothstein stated that the NOC does not simply constitute a guide for visa officers, but rather a binding system of classification and assessment.
[11] The NOC description of a mechanical engineer lists the following duties against which the Visa Officer must assess the applicant"s experience:
| - Conduct research into the feasibility, design, operation and performance of mechanisms, components and systems |
| - Prepare material, cost and timing estimates, reports and design specifications for machinery and systems |
| - Design power plants, machines, components, tools, fixtures and equipment |
| - Supervise and inspect the installation, modification and commissioning of mechanical systems at construction sites or in industrial facilities |
| - Develop maintenance standards, schedules and programs and provide guidance to industrial maintenance crews |
| - Investigate mechanical failures or unexpected maintenance problems |
| - Prepare contract documents and evaluate tenders for industrial construction or maintenance |
| - Supervise technicians, technologists and other engineers and review and approve designs, calculations and cost estimates.5 |
[12] In the case at bar, the applicant"s job duties with GAMECO were described to the Visa Officer during his interview as follows:
| - provide trainign [sic] to aircraft maintenance staff |
| - aircraft maintenance and troubleshooting |
| - supervises technicians and apprentice mechanics6 |
[13] Based on the comparison of these two descriptions, the letter from the Canadian Council of Professional Engineers7 and after learning that the applicant did not have any research or design experience, the Visa Officer concluded that the applicant had not performed a substantial number of the main duties set out in the NOC under mechanical engineer8:
| In finding that the Applicant did not meet the employment requirements for Mechanical Engineers, I considered the letter from the Canadian Council of Professional Engineers (D. Wolfe) to the Applicant dated August 21, 1998 [...] While the CCPE gave the Applicant an acceptable result on his informal assessment of qualifications, I was not satisfied that the Applicant had performed the work of a mechanical engineer as defined in the NOC. |
| I also considered the reference letter for the Applicant from GAMECO dated June 8,1998 [...] This letter also did not satisfy me that the Applicant had performed the work of a mechanical engineer as defined in the NOC9. |
[14] Based on all the information provided to him, the Visa Officer found that the applicant did not have experience as a mechanical engineer. Contrary to the applicant"s submissions, I am of the view that his notes do not reflect an insistence that all of the duties be performed. The Visa Officer based his decision not only on his lack of experience in design and research, but also on the fact that the applicant had not performed a substantial number of the main duties of a mechanical engineer (and an aerospace engineer). I agree with the respondent that he was entitled to give greater weight to certain duties. I therefore do not find his decision to be unreasonable on this point.
[15] Personal suitability is defined in Schedule I of the Regulations as follows:
| Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person"s adaptability, motivation, initiative, resourcefulness and other similar qualities. |
[16] In the present case the Visa Officer awarded the Applicant 5 points on the personal suitability factor. The Visa Officer assessment of this factor was recorded in his CAIPS notes as follows:
| SUIT 5. PI HAS NEVER BEEN TO CDA, LIMITED FAMILIARITY WITH CDA. PI HAS NOT INFORMED HIMSELF OF OCCUPATIONAL REQUIREMENTS FOR AIRCRAFT MECHANICS IN CDA, DID NOT KNOW PROCESS FOR AME CERTIFICATION. THIS DOES NOT SUGGEST RESOURCEFULNESS, INITIATIVE, MOTIVATION. LIMITED OCCUPATIONAL FLEXIBILITY FOR PI IN CDA, AND LACK OF PREP TO MEET OCCUPATIONAL REQTS IN PHIS FILED MAY LIMITED ADAPTABILITY, SETTLEMENT POTENTIAL.10 |
[17] The Visa Officer considered whether the applicant had ever been to Canada, the fact that his knowledge of Canada was limited and the fact that his limited occupational flexibility reflected a lack of resourcefulness, initiative and motivation.
[18] In Maniruzzamam v. MCI 11 the Court acknowledged that a broader evaluation of the applicant"s personal suitability characteristics is required particularly where an applicant, like in the present case, is one or two points short of the requisite total. In the present case, the visa officer took into account the fact that the applicant had never travelled to Canada. Although it is well established in jurisprudence that knowledge of Canada is a relevant consideration in assessing personal suitability, I agree with Cullen J. in Milovanova v. MCI12 that an applicant cannot be faulted for having never visited Canada.
[19] In the case at bar, a reading of the cross-examination on affidavit of the visa officer shows that the visa officer placed significant weight on the fact that the applicant had never visited Canada.
[20] Given that this was not a relevant consideration in assessing the applicant"s personal suitability for successful establishment in Canada, and that the applicant was short of only a few points, I am of the opinion that this constitutes an error sufficient to warrant judicial review.
[21] Lastly, counsel for the applicant citing Wen v. MCI,13 submits that the visa officer should have considered the applicant"s wife"s occupation as a secretary in assessing his personal suitability. However, I believe that the Wen decision can be distinguished from the case at bar since in that case the visa officer admitted that she would have awarded a point to the applicant"s personal suitability factor had she know that the applicant"s spouse"s occupation was on the occupation demand list. This admission on the record prejudiced the applicant.
[22] In the present case, I agree with the respondent"s submission that personal suitability should be based on the "person"s adaptability, motivation, resourcefulness" as indicated in Schedule 1 of the Regulations and not on the applicant"s spouse"s potential for employment.
[23] For the foregoing reasons, the decision of the visa officer is set aside and the matter referred back to a different visa officer for consideration.
(Sgd.) "Danièle Tremblay-Lamer"
Judge
VANCOUVER, BRITISH COLUMBIA
March 23, 2000.
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2489-99
STYLE OF CAUSE: Yan Luo
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 21, 2000
| REASONS FOR ORDER OF Tremblay-Lamer, J. |
DATED: March 23, 2000
APPEARANCES:
| Mr. Dennis Tannack For the Applicant |
| Mr. Mark Sheardown For the Respondent |
SOLICITORS OF RECORD:
Dennis Tanack
Barrister & Solicitor
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
__________________
1 Applicant "s Application Record, page 18, Part A, 9b).
2 The respondent does not admit that the Applicant "worked as an engineer" for the purposes of the Immigration Act and Regulations, 1978, although his job title may have been "engineer".
3 SOR/78-172, as am.
4 (1996), 111 F.T.R. 226.
5 Applicant "s Application Record at p. 36.
6 Applicant "s Application Record at p. 32 and 40.
7 Applicant "s Application Record at p. 38.
8 Applicant "s Application Record at p. 14, para. 8.
9 Applicant "s Application Record at p. 14, paras. 9 and 10.
10 Applicant "s Application Record at p. 10.
11 (3 May 1999), IMM-3586-98 (F.C.T.D.).
12 (7 September 1999), IMM-4558-98 (F.C.T.D.).
13 (10 March 1999), IMM-1556-98 (F.C.T.D.).
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