Date: 20000502
Docket: IMM-2451-99
BETWEEN:
YONG CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a judicial review application of the decision of visa officer L. Chau, Canadian Consulate General in Hong Kong, dated April 30, 1998 wherein the applicant's application for permanent residence in Canada was refused.
FACTS
[2] The applicant is a citizen of the People's Republic of China. She graduated from the Guangxi University in Nanning in 1992 with a bachelor of arts degree majoring in Japanese.
[3] The applicant has been working as an interpreter for almost seven years.
[4] She applied in the independent category under the occupation of Interpreter but was refused at the end of the interview.
THE VISA OFFICER'S DECISION
[5] The visa officer assessed the applicant in the occupation of Interpreter NOC 5125.3, for which she earned 61 units of assessment:
| Education/Training Factor 15 |
[6] The applicant was awarded zero units of assessment for experience since she did not have the required training to be assessed in the occupation of Interpreter, namely a bachelor's degree in Translation according to the NOC.
[7] The visa officer therefore refused the application.
ISSUE
[8] Did the visa officer err in interpreting the employment requirements for an interpreter provided in the National Occupational Classification?
ANALYSIS
[9] I must deal first with a preliminary matter brought to my attention by the applicant regarding the HRDC letter. The applicant asked that the HRDC letter be withdrawn and also that the Court ignored paragraph 8 of the applicant"s affidavit. The Court granted this request.
[10] The NOC sets out the employment requirements for Interpreters:
| A bachelor"s degree in translation or a related discipline is required, and specialization in interpretation, translation and terminology at the graduate level is usually required. |
[11] The visa officer in her refusal letter wrote:
| You were awarded zero units of assessment for experience as you do not have the required training to be assessed in this occupation, namely, a bachelor"s degree in Translation according to the NOC. |
[12] The visa officer omitted any reference to the related discipline mentioned in the NOC.
[13] The CAIPS notes reveal:
| According to the NOC, interpreters and translators are required to have a bachelor"s degree in interpretation/translation, and a specialization in interpretation, translation and terminology the graduate level is usually required. |
[14] In stating the employment requirements, the visa officer omitted again to mention the related discipline alternative, provided for in the NOC.
[15] The CAIPS read:
| She did not have a bachelor"s degree in translation or the equivalent described in the NOC requirement for interpreters/translators. Subsequently I am not satisfied that she meets the training requirements for interpreters and translators. |
| I considered these certificates and advised PI that they cannot be viewed as equivalent or substitute for a bachelor"s degree in translation for her intended occupation. |
(My emphasis)
[16] Upon reading the CAIPS notes, it is evident that the visa officer firstly, ignored the related discipline component of the employment requirements and secondly, applied a different employment requirement than what is required by the NOC. The NOC requires a related discipline, the visa officer imposed an "equivalent" or "substitute" discipline.
[17] "Related" is defined in the Webster dictionary as "connected by reason of an established or discoverable relation"; discipline is defined as "a field of study".
[18] "Equivalent" is defined by the Webster dictionary as "corresponding or virtually identical especially in effect or function". An equivalent degree is a more stringent requirement than a related degree.
[19] "Substitute" is defined by the Webster dictionary as "a thing that takes the place or function of another". A substitute degree does not even have to be related to a Translation degree. A substitute degree is a much larger criteria than required by the NOC; any language degree could easily pass as a substitute to a Translation degree.
[20] Had the drafter required an equivalent or substitute degree, this could have been easily specified. Instead, the drafter opted for a related discipline. In applying a different employment requirement, the visa officer misinterpreted the employment requirements and erred in law.
[21] Also, I am very concerned, once again with the fact that the visa officers are assessing the interpretations skills of the applicants. I fail to see how visa officers are experts on this matter.
[22] In Gao v. Canada (M.C.I.), (March 9, 2000) IMM-2453-99 (F.C.T.D.) the Court expressed concerns regarding this issue:
| In the absence of a standard test, I am concerned of how the visa officer could be in a position to assess the employment skills of an applicant. |
[23] Are visa officers going to assess employment skills of engineers?, of chefs? Obviously, they are not in a position to do so.
[24] In my view, this practice of assessing the employment skills of interpreters is not appropriate and the applicants should be awarded points on the basis of the factors set out in the Regulations and not on how good an interpreter they are.
[25] This judicial review application should be granted and the matter ought to be referred back for determination by a different visa officer.
Pierre Blais
Judge
OTTAWA, ONTARIO
MAY 2, 2000
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