Date: 19991210
Docket No.: IMM- 414-99
BETWEEN:
HUI LU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MULDOON J.:
[1] This is an application, pursuant to section 18.1 of the Federal Court Act, S.C. 1990, c.8, s.5, for judicial review of a decision by a visa officer, made December 3, 1998, rejecting the applicant as a biologist, microbiologist, bacteriologist and immunologist in the independent category. The applicant seeks a writ of certiorari quashing the decision of the visa officer and asks that the matter be sent back to a different visa officer for redetermination.
Facts
[2] The applicant is a citizen of the People"s Republic of China. She filed an application for permanent residence with the Canadian embassy in Manila in April of 1997. She applied in the independent category as an immunologist and medical bacteriologist. The applicant was accepted for an interview which she attended in Makati City on September 9, 1998.
[3] The applicant brought with her to the interview, among other documents, a resumé. This was not, however, kept by the visa office after the refusal letter was sent to the applicant and is, therefore, missing from the certified record. Both parties agreed at the hearing, however, to rely on a copy of the resumé attached as an exhibit to the applicant"s affidavit. The resumé continues for three pages laying out in great detail the duties which she performed, over the previous ten years, while at the Liaoning Health and Anti-Epidemic Station in Shenyang City. The transcript of marks received by the applicant while at China Medical University is likewise missing from the certified record. Counsel for the respondent did not object, however, to a certain transcript entered into the record by the applicant pursuant to an order of Prothonotary Hargrave dated September 2, 1999.
[4] The applicant asserts that, during the interview, she described her training and work as a doctor specializing in preventive medicine, for instance her examination of patients and supervision of the lab assistants who analysed their blood samples. The visa officer"s CAIPS (Computer Assisted Information Processing System) notes, however, are cursory in their description of the applicant"s work experience (certified record at 3):
| -GOES OUT AND COLLECTS SAMPLES TO TEST FOR RICKETTSIA |
| -HAS THREE ASSISTANTS WORKING IN LABORATORY WITH HER ... |
[5] The visa officer also briefly described his impressions of her experience while she was cross-examined (applicant"s record at 40):
| 41 Q Yes. But her -- but she described her duties as being more in the lines of research into epidemics and illnesses, correct? |
| A On a day to day basis I would say she was at the station dealing with -- yes, not dealing with people, but dealing with the actual virus, they are looking at the virus or looking at the -- |
| 42 Q Bacteria or whatever? |
[6] The visa officer, Mr. John Acheson, assessed the applicant as a bacteriologist, immunologist, biologist and microbiologist all of which can be found in the National Occupational Classification, Ottawa: Human Resources Development Canada, 1993, (hereinafter NOC) under NOC chapter 2121 - Biologists and Related Scientists. These occupations are also found in the Canadian Classification and Dictionary of Occupations, Ottawa: Employment and Immigration Canada, 1977, (hereinafter CCDO).
[7] The visa officer avers that he did not think that the applicant was performing the majority of the duties enumerated in NOC chapter 2121. His CAIPS notes, written after the interview, however, are equivocal (certified record at 3):
| EXPLAINED TO PI THAT THO SHE MAY BE DOING THE WORK [...] |
[8] The visa officer"s draft refusal letter contained in his CAIPS notes of January 9, 1998 implies that the applicant"s education was the reason for her being refused and not her work experience (certified record at 4):
| -BP PLS NOTE IN REFUSAL "No units were awarded for experience as you do not possess a Master"s degree in immunology. You were also assessed as a microbiologist and bacteriologist, but once again you lack the required Master"s degree." |
[9] The visa officer explained, during his cross-examination, that he merely assumed, for the purposes of the interview, that the applicant had the requisite experience.
[10] The educational background required for the occupations in which the applicant was assessed can be found listed in NOC chapter 2121, under the heading of employment requirements. It includes, as a minimum, a bachelor"s degree in biology or a degree in a related discipline. The related disciplines selected by visa officer included bacteriology, immunology and microbiology. The CAIPS notes written after the interview contain his impressions in respect of her education (certified record at 3, 4):
| [...] I DID NOT CONSIDER THE 5 YR BACHELOR IN MEDICINE AS EQUATING A 4 YR BSC FOLLOWED BY A MASTERS AS REQUIRED BY CDN STANDARDS (CCDO AND NOC) |
[11] The applicant"s consultant, having been apprised of the visa officer"s conclusions, contacted the officer on September 15, 1998, to inform him that no Master"s degree was required under the NOC . He pointed out that only a bachelor"s degree in biology or a related discipline was required. The visa officer considered, however, that the applicant"s degree in medicine did not qualify as a bachelor"s degree in biology or in a discipline related to biology (certified record at 4):
| - IN COURSES TAKEN FOR UNDERGRAD PI HAS ONLY ONE COURSE IN BIOLOGY AND A SECOND COURSE IN MICROBIOLOGY |
| - I DO NOT CONSIDER THIS TO BE SUFFICIENT TO QUALIFY AS A DEGREE IN A "RELATED DISCIPLINE" |
[12] The visa officer also began to consider that the applicant"s work experience was not really that of a biologist (certified record at 4):
| - FURTHERMORE PI"S JOB IS THAT OF "DOCTOR-IN-CHARGE" NOT BIOLOGIST |
| - PI IS A DOCTOR IN THE PRC, NOT A BIOLOGIST [...] |
[13] In a letter dated December 3, 1998, the applicant"s application for permanent residence was refused. The visa officer gave his final reasons for refusing the application as follows (applicant"s record at 17):
| Your application has been refused because you have failed to demonstrate that you are qualified for your intended occupation in Canada, as it is defined in its CCDO and NOC descriptions [...] Accordingly, you cannot be awarded any units under the Experience factor for two reasons: your undergraduate degree is in medicine not biology or a related discipline and you are working as a doctor. |
Legal Issues
[14] The applicant raises three issues. First, she submits that her refusal of December 3, 1998 was merely a justification of an earlier, draft refusal in which the visa officer made an error. Second, she submits that the visa officer erred in determining that she did not have, under the NOC, the appropriate educational background for any of the occupations for which she was assessed. Third, the applicant submits that the visa officer erred in determining that she had no experience relevant to the occupations for which she was assessed.
[15] The first of the applicant"s submissions is grounded on her assertion that the visa officer amended his reasons for refusing her after being apprised of an error in his original decision. She submits that this change in reasons has the appearance of a justification of an earlier erroneous decision. The respondent submits that the visa officer never changed his reasons for refusing the applicant.
[16] The respondent is correct to note that it cannot be stated with certainty that the applicant"s work experience was ever considered as adequate. In this regard, the visa officer provided a reasonable explanation for the equivocal wording in his CAIPS notes. In addition, it cannot be ascertained that the visa officer ever considered the medicine degree to amount to a biology degree. In the absence of stronger evidence of mala fides motivating the visa officer"s second refusal, this Court is reluctant to impugn his motivation in this respect.
[17] The applicant"s submission that the visa officer erred in finding that she did not have an appropriate educational background is based on two assertions. The first assertion is that the courses taken by the applicant amount to a degree in biology or, in the alternative, a degree in a discipline related to biology, such as bacteriology, immunology or microbiology. The second assertion is that medicine itself is a discipline related to biology. Counsel for the respondent allowed that a number of courses taken by the applicant are related to biology. She submitted, however, that there are not enough of these to amount to a degree in biology or a related discipline. The respondent further submits that medicine is not a discipline related to biology.
[18] Both the applicant and respondent submit that the decision in question constitutes a finding of fact. The applicant submits that the review of the decision is, therefore, governed by Re Rohm and Haas, A-568-77, June 30, 1978 (F.C.A.) (hereinafter Re Rohm). The respondent submits that this Court is to be guided by Lim v. Canada (Minister of Employment and Immigration), A-351-89, January 8, 1991 (F.C.A.) (hereinafter Lim) and, as such, that the standard of review applicable to the finding in question is patent unreasonableness. Were the dispute over a finding of fact, this Court is satisfied that it would be bound by Lim, supra. This Court is not convinced, however, that the question under review is one of fact.
[19] In Lim, supra a visa officer made a finding that the applicant had not performed any of the duties listed under the relevant CCDO chapter. The decision was based strictly on a comparison of the employment history provided by the applicant and the enumerated duties found in the CCDO chapter. The decision under review, however, concerns first, whether her courses amount to a degree in biology or one in a discipline related to biology. What amounts to a degree in biology or a degree in a related discipline depends on what definition is given to these terms by the NOC or the Immigration Act, R.S.C. 1985, Chap. I-2. The second aspect of the decision - whether a degree in medicine is a degree in a discipline related to biology, also hinges on how a related discipline is defined.
[20] The need to use a definition or meaning signals that the decision no longer concerns merely a question of fact but concerns the application of facts to statutory law. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, Iacobucci J. wrote:
| Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. |
[21] The applicant has asked the Court to review whether the visa officer erred in finding first, that her courses fail the educational standard set out under NOC chapter 2121 and second, that the degree in medicine is not included in the definition of the phrase "related discipline". The findings in respect of these issues are, therefore, ones of mixed fact and law.
[22] The standard of review in Lim, supra was adopted solely in the context of a finding of fact and does not bind this Court when dealing with questions of mixed fact and law. The appropriate standard may be determined, however, using the pragmatic and functional test; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (hereinafter Pushpanathan). Pursuant to this test, the Court notes that the question is one of mixed fact and law and notes that there is no privative clause relevant to visa officer decisions. These facts militate against the Court showing deference to the visa officer"s decision. Subsection 9(2) of the Immigration Act shows clearly that the expertise of a visa officer lies in determining whether an applicant for permanent residence has satisfied the criteria set out in the NOC , and suggests that this Court should show deference to the visa officer"s finding. That the visa officer is determining the rights of the applicant as opposed to dealing with a polycentric issue also favours deference being shown by this Court. On carefully balancing these factors this Court considers that the proper standard of review is that of unreasonableness.
[23] The visa officer determined that, of all the courses listed on the applicant"s transcript, only the courses in biology and microbiology had anything to do with a degree in biology, bacteriology, immunology or microbiology. No other courses were alluded to by the visa officer. The applicant"s transcript contains many courses, however, which would be found in either a biology, bacteriology, immunology or microbiology program taught at any Canadian university. This Court notes, for instance, that the applicant took organic chemistry, biochemistry and health microbiology, all of which are courses that an undergraduate student of biology might take. Epidemiology and a course entitled infectious disease are clearly relevant to a degree in immunology. Counsel for the respondent concedes that the number of courses relevant to a degree in one of the four areas in question might be as high as six. The applicant alleges that the number is much higher.
[24] This Court does not need to make a determination on the exact number of courses which are relevant to the degrees in question. It needs only to establish whether the reasons of the visa officer can stand up to a somewhat probing examination; Southam, supra. They cannot. The visa officer"s finding is, however, not only unreasonable. As the error appears on the face of his finding, it must be considered patently unreasonable. If this Court is wrong in characterising the question as one of mixed fact and law, therefore, the finding is nevertheless impugnable as one of fact.
[25] The second submission by the applicant is that medicine is a discipline related to biology. Counsel for the applicant referred to NOC chapter 3111 which describes the educational requirements and duties of specialist physicians. Counsel identifies specialists in laboratory medicine, which are one of the enumerated specialist physicians, as having some of the same duties as biologists, microbiologists, immunologists and bacteriologists. For instance, one of the duties listed in NOC chapter 3111 provides:
| " Study the nature, cause and development of diseases in humans and the structural and functional changes caused by diseases |
This is similar to the first of the relevant enumerated duties in NOC chapter 2121:
| " Conduct research into the structure, function, ecology, biotechnology and genetics of micro-organisms, including bacteria, fungi, protozoans, and algae |
The second allegation is also premised on the argument that a person with a medical degree is qualified to do some of the microbiologist"s duties listed under NOC chapter 2121.
[26] The respondent asserted in written submissions that one must look to the knowledge gained in a degree rather than rely on degree titles to determine whether one degree is equivalent to another degree. In oral representations, the respondent submitted that those studying medicine do not gain as detailed a knowledge of biology as those studying biology do but, rather, focus on learning subjects such as surgery and anatomy. As a result, those with a degree in medicine cannot perform a biologist"s duties. This is corroborated, the respondent submits, by the fact that, whereas a biologist needs only to obtain a bachelor"s degree, a specialist in laboratory medicine requires a bachelor"s degree, a medical degree, one year"s internship and four years" residency.
[27] There is no definition of a degree in biology or a related discipline. The respondent has shown the Court, however, that it is unlikely that a degree in medicine equates to a degree in biology or a related discipline. The relatively high educational requirements of a specialist in laboratory medicine imply that, whatever superficial similarities between the duties found in NOC chapter 3111 and those found in NOC chapter 2121, the content of those duties will differ somewhat. The educational backgrounds of both will lead to a career focussed on the research and study of living organisms. These careers will, truly, focus on certain different details of those living organisms. In the result, the visa officer"s finding that a degree in medicine is not a degree in a related discipline can not be considered as wholly reasonable.
[28] The applicant"s second main submission is that the visa officer erred in determining that the applicant had no experience relevant to the occupations of bacteriologist, immunologist, biologist or microbiologist. The submission is based on the assertion that the visa officer did not delve deeply enough into the applicant"s work history but, rather, gained only a superficial understanding of it. It is also based on the assertion that the visa officer was under a misapprehension that NOC chapter 2121 requirements include the need to perform more than one of the enumerated duties.
[29] Both parties submitted that the relevant question is one of fact. The applicant"s claim, however, is based on the assertion by counsel that the visa officer did not consider all of the information in the applicant"s resumé. That a visa officer must have regard to all the relevant evidence put before him is an issue going to jurisdiction. This Court cannot agree with the parties, therefore, that the issue concerns only a question of fact.
[30] The lack of any detailed description by the visa officer of the applicant"s experience and his repeated references to her title as doctor cast a shadow over the finding in question. Seen as a whole, the evidence does not, however, imply that the officer disregarded portions of the applicant"s resumé. It is one thing for an officer to be casual, perhaps even cavalier, in the manner in which he records his impressions. It is something entirely different, however, for an officer to fail to draw his mind to certain relevant material. Though the evidence shows that the first situation may characterize the actions of the visa officer, it does not necessarily characterize the second circumstance. The evidence does not establish, therefore, that the visa officer committed a jurisdictional error.
[31] The second part of the applicant"s main submission is that the visa officer was under a misapprehension that NOC chapter 2121 requirements include the need to perform more than one of the enumerated duties. The respondent did not address this issue directly. Counsel for the applicant characterized the visa officer"s error as one of law. The applicable standard of review in the circumstances, therefore, is one of correctness.
[32] The introductory paragraph under NOC chapter 2121 describes the duties of immunologists, bacteriologists and all other listed scientists as including basic and applied research within the context of the study of living organisms. Immunologists and bacteriologists are described under this heading as biologists specializing at the cellular or molecular level. Their main duties and those of microbiologists are described as including some or all of the following (respondent"s record at tab 1):
| " Conduct research into the structure, function, ecology, biotechnology and genetics of micro-organisms, including bacteria, fungi, protozoans, and algae |
| " Conduct research into the structure and functioning of human, animal and plant tissues and cells |
| " Conduct studies into the identification, effects and control of human, plant and animal pathogens and toxins |
| " Conduct clinical or laboratory studies to test, evaluate and screen drugs and pharmaceuticals |
| " Conduct molecular or biochemical studies and experiments into genetic expression, gene manipulation and recombinant DNA technology |
| " May supervise biological technologists and technicians and other scientists. |
[33] The visa officer also states that the applicant was not performing a majority of the duties described in any of the relevant NOC or CCDO chapters. This suggests that the visa officer read into the qualifications of NOC chapter 2121 a requirement for applicant to have performed a majority of the enumerated duties. This is not, however, what the chapter requires. It simply requires that an applicant perform some of the duties listed.
[34] It is unrealistic for a biologist, microbiologist, immunologist or bacteriologist to be expected to perform a majority of the enumerated duties. It is also unrealistic to expect every scientist to perform more than a small portion of the duties that which are listed in any of the chapters. The nature of specialisation which comes with a scientist"s work precludes this. For all these reasons, the visa officer"s error in interpreting the requirements set out in NOC chapter 2121 is fatal to his decision.
Conclusion
[35] The Court, having found that the visa officer erred in making two of his findings, must allow the application and refer the matter back to a different visa officer for redetermination.
[36] The parties made submissions as to costs, agreeing that these should follow the cause and be fixed by this Court pursuant to column 3 of tariff B. As a result, this Court fixes costs against the respondent in the amount of $1,300.00 and the applicant"s necessary disbursements.
"F. C.Muldoon"
Judge
Ottawa, Ontario
December 10, 1999
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