Date: 20000316
Docket: IMM-4952-98
BETWEEN:
WEI YAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] Wei Yao, a citizen of the People"s Republic of China, seeks judicial review of the refusal of his application for permanent residence as an independent immigrant in his intended occupation as a mechanical engineer (NOC 2132). The visa officer determined that Mr. Yao did not qualify as a mechanical engineer. He was then assessed as a mechanical engineering technologist (NOC 2232) for which he was awarded 65 units.
[2] Mr. Yao was interviewed in Hong Kong on May 7, 1998 and the visa officer"s letter of decision is dated May 8, 1998.
[3] This application was heard together with two other similar proceedings under court file nos. IMM-4953-98 and IMM-4954-98. The applicants, represented by the same counsel, raise one issue common to the three files. There are sufficient other factual differences among the cases, however, to warrant three separate sets of reasons.
[4] In each of the three cases, counsel for the applicants argues that the visa officer did not give sufficient weight to the Informal Assessment of Qualifications for Engineers issued by the Canadian Council of Professional Engineers ("CCPE").
[5] The informal assessment from the CCPE is obtained upon payment of $175. Candidates complete a short form which discloses their engineering education and their certification as a professional engineer in their country of citizenship. The CCPE also requests applicants to submit a short curriculum vitae.
[6] The informal assessment by the CCPE can have one of two results: (1) "Qualifications not acceptable" or (2) "Qualifications appear acceptable for immigration purposes".
[7] In this case, the CCPE accepted the applicant"s qualifications for immigration purposes.
[8] The parties do not agree on the weight to be attached to the CCPE informal assessment.
[9] The applicant relies on the CCPE form which explains the purpose of the informal assessment:
| ... The purpose of this assessment is to evaluate the likelihood of acceptance into the examination program by a provincial or territorial engineering association. |
| A positive outcome is valuable advice to visa officers. They take it into account when they assess your application for permanent residence in Canada. It does not guarantee they will approve your application, but it will be a factor in your favour. |
| A negative outcome is valuable advice to you. It tells you that applying to immigrate to Canada with the intention of working there as an engineer is unrealistic. |
| The assessment result is used for occupational designation for immigration purposes only. |
[10] The respondent"s Selection Manual, a departmental guideline prepared for visa officers, deals with the selection of professional engineers and the CCPE informal assessment in these terms (Chapter 4 - Independent Immigrants):
| 4.40 SELECTION OF PROFESSIONAL ENGINEERS, ENGINEERING TECHNOLOGISTS AND TECHNICIANS |
| 1) Processing Procedures at Posts Abroad |
| a) ... In most instances, this advice enables the post abroad to determine if the applicant can be assigned an occupational coding as a professional engineer, engineering technologist, or engineering technician for immigrant selection purposes. |
...
| f) On receipt of the CCPE ... assessment, the immigrant processing procedure is as follows: |
| Box 1 - will result in refusal as an engineer; |
| Box 2 - will result in immigration acceptance as an engineer, assuming the applicant otherwise meets selection criteria. |
There is a corresponding statement for assessments by the Canadian Council of Technicians and Technologists.
[1] Counsel for the applicant argues, on the basis of the respondent"s Selection Manual, that a positive CCPE assessment will be considered to be determinative of a person"s engineering qualifications or, at a minimum, will require visa officers to explain why they disagree with the CCPE assessment that the applicant"s "qualifications appear acceptable for immigration purposes".
[2] The respondent argues that the applicant"s reliance on the CCPE informal assessment is misplaced. Both the statements in the CCPE form and in the respondent"s Selection Manual must be read in the light of the statutory requirement that visa officers must assess all aspects of the application for permanent residence in accordance with the different factors set out in Schedule 1 of the Immigration Regulations, 1978 , SOR/78-172 as amended.
[3] There is insufficient evidence before me to support the applicant"s submission that the CCPE informal assessment is determinative of his qualifications as a mechanical engineer under the National Occupational Classification ("NOC"). The evidence concerning the CCPE process is limited to the application form and an attached instruction sheet which states that a positive evaluation "will be a factor in your favour" but will not guarantee the approval of the application for permanent residence. Similarly, the language of the Selection Manual is equivocal. It suggests that a positive CCPE assessment will result in immigration acceptance as an engineer, "assuming the applicant otherwise meets [the] selection criteria".
[4] The issue, which I leave open for another case with more complete evidence, is how the arrangements between the respondent and the CCPE affect the visa officer"s determination concerning an applicant"s qualifications as an engineer. Is the CCPE assessment a requirement imposed by the respondent? What is the extent of the CCPE analysis of the applicant"s professional credentials? What is the relationship between the CCPE positive assessment and the criteria set out in the National Occupational Classification? These are some of the factual questions relevant to a more precise determination of the probative value of the CCPE assessment in an engineer"s application for permanent residence.
[5] The applicant is correct, however, in asserting that the CCPE assessment forms part of the information, together with the applicant"s curriculum vitae, description of employment tasks and letter of reference, which must be considered by the visa officer in determining whether the candidate meets the NOC criteria for engineers. Put differently, the visa officer"s negative decision concerning the applicant"s classification as an engineer must have been made with due regard for the information supplied by the applicant, including the CCPE assessment.
[6] In this proceeding, the visa officer did not file an affidavit. The tribunal record includes the CCPE informal assessment. However, neither the visa officer"s CAIPS comments or her handwritten notes of the interview indicate that she considered the CCPE positive assessment. There is no information before me to explain why her negative determination concerning the applicant"s qualifications as an engineer differed from the acceptable rating issued by the CCPE. In these circumstances, I can only conclude that the visa officer"s decision was made without regard to the material before her.
[7] For these reasons, this application for judicial review will be granted. The decision under review will be set aside and the matter referred for redetermination by a different visa officer. The parties may file written submissions concerning the certification of a serious question within seven days of the date of these reasons.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
March 16, 2000
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