Date: 20001027
Docket: IMM-2114-99
BETWEEN:
QINGMIN LIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] Quigmin Liu, seeks judicial review of the March 19, 1999 decision of a visa officer denying his application for permanent residence in Canada, in the independent category.
[2] The applicant asked to be assessed under the National Occupational Classification ("NOC") system as a software engineer and a computer programmer.
[3] The applicant received a Bachelor of Science Degree, with a major in computer software, from Fudan University in 1987. For the following nine years, he worked as a computer programmer at Tianjin Information and Technology Company in China. In 1996 he moved to the United States where he worked first for HTM Worldwide, Inc. as a user support analyst engineer then for Premium Computer, Inc. as a computer engineer. He was working for this latter firm at the time of the interview.
[4] The application for permanent residence was refused following an interview. The refusal letter states that the applicant was assessed under the occupation of software engineer and was awarded 67 out of the required 70 units of assessment. There is no indication in the letter of an assessment under the occupation of computer programmer as requested in the application.
[5] The first issue raised by the applicant is whether the visa officer breached the duty of fairness by failing to assess the applicant as a computer programmer as requested in his application.
[6] The applicant disagrees with the visa officer's account of what took place at the interview.
[7] The visa officer in his affidavit deposes as follows:
| I interviewed the applicant on March 23, 1999. At the interview the applicant claimed that he has been employed as a telephone technician providing troubleshooting skills for clients of his company experiencing computer problems. He claimed he had been doing this work in Houston since November 1996. He also claimed that prior to November 1996 he was employed as a computer programmer in China. I was unable to verify the applicant's claims with respect to his employment experience in China. During the interview I asked the applicant to write a short computer program for me but he declined to do so indicating that his skills were not current and he would need some time to "brush up". I was not prepared to assess the applicant as a computer programmer as I felt that it was unlikely that a Canadian employer would be prepared to employ him as a programmer in light of his limited demonstrated programming skills. Accordingly, I only awarded the applicant 6 units of assessment for experience. |
[8] The applicant, however, deposes as follows regarding the March 23, 1999 interview:
| Apesland asked me to explain my work experience. |
| I told him that I had been working in the United States since 1996 solving computer software problems for clients. |
| I also told him that in China I had worked for 9 years as a Computer Programmer. |
| He asked me no further questions about work experience at my present of former employers. |
| He did not express to me any concern that he could not verify what I had told him about my experience as a Computer programmer of as a Software Engineer. |
I assumed that he had accepted as true what I told him about my work experience.
[9] The only reference to computer programmer in the CAIPS notes made at the time of the interview states "... Prior to this he was a programmer in China and I am unable to verify this experience. The applicant seems to have the technical knowledge to do the job ..."
[10] The respondent relies on the reasons in Chavda v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1190 for the proposition that where there are significant differences in the affidavit evidence of a visa officer and an applicant, and the applicant does not cross-examine the visa officer on his affidavit, the applicant has failed to meet his burden of proof. I do not agree that Chavda, supra stands for this proposition. The Court did not conclude that because the applicant did not cross-examine on the affidavit he had not discharged his burden of proof. Rather, the Court found after reviewing all of the evidence including the CAIPS notes, letters of reference, two affidavits from the visa officer and three affidavits from the applicant, that the applicant had not discharged the burden on him to establish that the visa officer's decision and his credibility finding were unreasonable.
[11] In the present case, there are inconsistencies in the visa officer's affidavit which leads me to prefer the applicant's evidence over that of the visa officer. On the one hand the visa officer states in his affidavit that he did not assess the applicant as a computer programmer because of his limited demonstrated programming skills yet goes on to say that he awarded him 6 units of assessment for experience. He also states that neither he nor the receiving officer at the paper screening stage were able to verify his employment in the United States or China, however, the CAIPS notes do not indicate that at the paper screening stage any attempt was made to verify the applicant's employment in China. The CAIPS notes do not reflect any attempt on the part of the visa officer to verify the applicant's employment in China nor is there any explanation as to why the employment could not be verified.
[12] Furthermore, in the visa officer's affidavit there is a statement concerning the applicant that appears completely unrelated to the facts of this case. I also find it troubling that such a critical aspect of the assessment, that is, his unwillingness to write a short computer program is not reflected in the CAIPS notes made at the time of the interview.
[13] The respondent further submits that there is no requirement to continue an assessment in a given occupational category after it becomes clear that the applicant cannot meet the basic requirements. However in this case, the visa officer states that he did not assess the applicant as a computer programmer because it was unlikely a Canadian employer would be prepared to hire the applicant and not because he did not meet the employment requirements in the NOC system. In his CAIPS notes the visa officer acknowledges that the applicant seems to have the technical knowledge to do the work of a computer programmer.
[14] On these facts, I am not persuaded that the visa officer did assess the applicant as a computer programmer. Given that the applicant appeared to meet the basic requirements for a computer programmer, the failure to do so constitutes reviewable error.
[15] The application for judicial review is allowed, the decision dated March 19, 1999 is set aside, and the matter is remitted back for reconsideration by a different visa officer.
[16] Neither party submitted a question for certification.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
October 27, 2000
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