Date: 20000918
Docket: IMM-428-00
BETWEEN:
CHENG-HSIU HSIEH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] The applicant seeks judicial review of the decision, dated December 30, 1999, made by designated immigration officer N.M. Egan at the Canadian Consulate General in Buffalo, New York, in which the applicant's application for permanent residence in Canada was refused.
Background
[2] The applicant, Cheng-Hsiu Hsieh, is a 29 year old citizen of Taiwan. He applied for permanent residence as an independent applicant and requested that he be assessed as a Fashion Designer (NOC 5243.2). The applicant was not interviewed. The immigration officer's refusal letter reads, in part, as follows:
| Re: Occupation 1: I am unable to award you any units of assessment for experience as you have not acquired the equivalent of at least one year of full-time experience in this occupation. Subsection 11(1) of the Regulations does not permit issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of "experience in an occupation for which they are qualified and are prepared to follow in Canada," unless the immigrant has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience. You do not have such arranged employment, and I am not satisfied that you can perform the required work without experience.1 |
[3] From August 1988 until February 1992, the applicant attended Sze Hai Junior College, where he studied mechanical engineering, and from which he earned a graduation certificate. From July 1991 until February 1992, he worked part time for Wei Hsing Enterprise Company doing fashion design work, and from February 1992 until December 1994, he worked for the same company on a full time basis. From April 1995 until March 1999, he attended Kurashiki University of Science and the Arts in Okayama, Japan, where he earned a Bachelor of Fine Arts in textile design.
[4] The immigration officer determined that the applicant earned 60 units of assessment, short of the required minimum 70 units. He received zero units for experience and one for occupational demand.
Issue
[5] The issue to be determined is whether the immigration officer erred in making his decision by deciding that the applicant lacks at least one year of full time experience as a Fashion Designer because his experience predates his Bachelor of Fine Arts degree.
Applicant's Position
[6] The applicant contends that the immigration officer erred by requiring that the applicant's work experience be obtained after meeting the employment requirements of a bachelor's degree in fine arts. The applicant argues that by doing so, the immigration officer has imported an additional requirement into Schedule I of the Immigration Regulations, and fallen into error.
[7] In the alternative, the applicant submits that the immigration officer's decision is contradictory in that one unit was awarded for occupational demand, which requires that the immigration officer be satisfied that the applicant has performed a substantial number of the main duties of the occupation.
Respondent's Position
[8] The respondent maintains that the immigration officer did not err in limiting the applicant's experience to the period subsequent to obtaining the requisite certification. With regard to the one unit awarded for occupational factor, the respondent submits that as it was one unit out of a possible ten, the immigration officer was merely acknowledging the applicant's education.
Analysis
[9] The occupational definition for NOC 5243 provides that the main duties of a Fashion Designer are to design and create clothing and accessories for men, women, and children. The employment requirements are a bachelor's degree in fine arts or visual arts with specialization in clothing design or completion of a college or art school program in clothing design; creative ability, as demonstrated by a portfolio of work, is also required.
[10] Column I of Schedule I of the Regulations sets out the factors under which applicants are to be assessed. Factors 3, experience, and 4, occupational demand, provide as follows:
| Units of assessment shall be awarded for experience in the occupation in which the applicant is assessed under item 4, or in the case of an entrepreneur, for experience in the occupation for which the entrepreneur is qualified and that the entrepreneur is prepared to follow in Canada, as follows: |
| (a) when the number of units awarded under item 2 is one or two, two units for the first year of experience; |
| (b) when the number of units awarded under item 2 is five to seven, two units for each year of experience not exceeding two years; |
| (c) when the number of units awarded under item 2 is 15, two units for each year of experience not exceeding three years; and |
| (d) when the number of units awarded under item 2 is 17 or 18, two units for each year of experience not exceeding four years. |
| (1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation; |
| (a) for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification; |
| (b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and |
| (c) that the applicant is prepared to follow in Canada. |
[11] The question to be decided in this case is whether the applicant's previous experience at Wei Hsing Enterprise Company, where he appears to have performed the duties of a fashion designer, be counted as experience even though they were acquired before the applicant became qualified as a Fashion Designer.
[12] In Chen v. Canada (M.C.I.)2, Lemieux J. held:
| In my view, for the purposes of the Immigration Regulations, a person cannot have any years of experience preforming in an occupation for which that person is not qualified. The result is that, until a person completes the job training, he or she does not gain any experience units in the intended occupation until completion time. In this respect, I adopt the analysis of MacKay J. in Yu v. Minister of Employment and Immigration, 36 F.T.R. 296, where he said at page 301: |
| ...if the applicant is not deemed qualified for the occupation he or she intends to pursue in Canada, then regardless of the occupational demand in Canada for that occupation, no units of assessment are to be awarded under factor 4, or under factor 3, for experience. |
[13] In Hong Ung Chae v. Canada (M.C.I.)3, Nadon J. appears to state the opposite to that of what was said by Lemieux, J. in Chen, supra:
| The Applicant obtained a degree in public administration from the Korea National Open University in February 1998. As a result, he meets the educational requirements for the occupation that he intends to follow in Canada. Hence, the only issue for determination is whether the visa officer ought to have considered the experience gained by the Applicant prior to the obtention of his degree. |
| In the present instance, the visa officer was of the view that any experience obtained by the Applicant prior to the obtention of his degree did not count. At paragraph 7 of her affidavit she states: |
| As indicated in the CAIPS notes at page 3 of the Tribunal Record, I noted that in the Application the Applicant states that he obtained a university degree in February 1998, which meant he had been working less than one year with the university degree in his intended occupation. I award zero units of assessment under the experience factor. |
| In my view, the visa officer committed an error in concluding as she did. In paragraph 15 and 16 of his Memorandum of Fact and Law counsel for the Applicant put forward the following submissions: |
| The visa officer mistakenly assumed that the only work experience relevant to the applicant is that acquired after the educational requirements of the NOC had been met. There is no basis for this assumption either in law or in principle. The NOC educational requirement for a personnel officer reflects the fact that most people in the Canadian work force in this occupation have a particular educational requirement (a Bachelor's degree). Even in Canada, all personnel officers may not have this level of education. This reflects the fact that there are a mix of people in the Canadian labour force, some of whom hae recently entered and some of whom have been working for 20 or 30 years when educational requirements may have been lower. The Immigration Department has determined that new entrants need this qualification as a minimum standard to enter Canada. |
| This NOC says nothing about the educational levels needed to work in other countries in a particular occupation. That can only be determined with reference to local conditions. Whether or not a particular applicants' work experience in his or her own country meets the NOC requirements must be done by comparing the claimed work experience with the "main duties" as set out in the NOC. There is no evidence that the visa officer made either of these assessments. This is an error. |
| I agree with counsel's submissions that there is no basis for the position taken by the visa officer. Having determined that the Applicant met the employment requirements, the visa officer ought to have then examined the Applicant's experience. As she did not do so, her decision must be set aside. The matter will therefore be referred back to a different visa officer for redetermination in accordance with these reasons. |
[14] In my opinion, the reasoning of Lemieux J. should apply to the case at bar. The experience accumulated by the applicant before he earned his Bachelor of Fine Arts degree cannot be said to be experience gained while employed as a fashion designer because, according to the NOC definition, he was not at that time a fashion designer.
[15] With respect to the applicant's argument regarding the award of one unit for occupational demand, according to the above cited passage from Yu, no such units should have been awarded once the immigration officer had determined that the applicant is not qualified. If the applicant should succeed on this point, nothing would be gained. Indeed, the applicant would lose another point and would thus have earned only 59 units of assessment. Such an error, if that is the case, is not determinative of the issue and only works against the applicant.
[16] I am satisfied that this application for judicial review should be dismissed, the applicant having failed to demonstrate a reviewable error on the part of the immigration officer.
[17] Both of the parties have submitted a question for certification.
[18] The applicant submits the following question for certification:
| Is a visa officer entitled to disregard experience in a particular occupation obtained prior to meeting the employment requirements for that occupation set out in the National Occupational Classification? |
[19] The respondent submits the following question for certification:
| Is the visa officer required to examine the applicant's experience gained prior to the applicant meeting the employment requirements of that intended occupation to determine whether any units of assessment should be awarded in factor 3? |
[20] After reviewing both submitted questions, I hereby certify the following question:
| Is the visa officer required to examine the applicant's experience in his intended occupation gained prior to the applicant meeting the employment requirements of that intended occupation? |
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
September 18, 2000
__________________
1Applicant's Application Record, p. 10.
2(IMM-4594-97, July 9, 1999) at para. 37.
3 4 Imm. L.R. (3d) 182 at 183 and 184
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