Date: 19991213 Docket: IMM-1845-99
BETWEEN:
BONG XIAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[11 This is an application for judicial review of a decision dated March 10, 1999, of visa officer C. Cheng, Canadian Consulate General in Hong Kong, China, wherein the applicant's application for permanent residence in Canada was refused.
Page: 2
FACTS
[21 The applicant is a citizen of the People's Republic of China. She submitted her application for permanent residency on December 14, 1998. She graduated from the Sichuan Institute of Foreign Languages with a bachelor of arts degree, English major, in 1989. She had worked as an interpreter since 1991.
DECISION OF THE VISA OFFICER
[31 The visa officer after completing the assessment refused the application since the applicant did not meet the requirements for immigration to Canada in the Independent Category.
[41 The applicant was assessed in the occupation of Interpreter, NOC; 5125.3 where she earned 58 points. She was found not to meet the entry requirements as provided by the National Occupational Classification (NOC) and therefore her work experience under the occupation of Interpreter could not be considered. She was assessed again in the occupation of Administrative Officer, and Executive Assistant, and earned only 50 points.
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[51 The applicant was determined to be a member of the class of persons, who are inadmissible to Canada as described in paragraph 19(2)d) of the Immigration Act, 1976, and her application was therefore refused.
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UNITS OF ASSESSMENT
Occupation : Interpreter
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Your Score
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Maximum
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| Age
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10
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10
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| Occupational Demand
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1
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10
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| E. T. F.
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15
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18
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| Experience
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0
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8
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| Arranged employment
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0
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10
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| Demographic Factor
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8
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10
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| Education
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15
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16
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| English/French
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09
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15
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| Relatives
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0
|
05
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| Total
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58
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APPLICANT'S POSITION
[61 The applicant submits that there is nothing in the Tribunal record to demonstrate that either the person who recommended the refusal or the visa officer turned their minds to the issue of what would constitute "a related discipline" as set out in the NOC requirements. The CAIPS notes lead to the conclusion the visa officer ignored those words.
[71 It is further submitted that the definition of "is usually required" demonstrates that the requirement for graduate studies is not a definite or
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mandatory requirements and thus the visa officer erred in law in concluding that the requirements was definite or mandatory.
RESPONDENT'S POSITION
[81 The respondent submits that the visa officer did not ignore the possibility that the applicant could have a degree in a related discipline. The CAIPS notes reflect that the visa officer found that the applicant's undergraduate degree in English did not qualify to be a "related discipline" to translation.
[91 There was no evidence before the visa officer that the applicant had any training in translation and the visa officer determined that the English degree did not qualify. The evidence presented by the applicant in her affidavit with respect to the nature of the course work was not before the visa officer, and therefore should not be given any weight at the present proceeding.
[101 Pursuant to page 22 of the NOC Career Handbook, if the NOC describes the education or training as "usually" required, then it had been rated as if it is required.
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ANALYSIS
Did the visa officer err in failing to take into consideration the words "or a related discipline" as found in the employment requirements under the NOC?
[1 1 ] Under the employment requirements, the visa officer was to determine
whether the applicant had a bachelor's degree in translation. If she did not, whether she had a bachelor's degree in a related discipline.
[12] The visa officer concluded that the applicant did not have a bachelor's degree in translation. Instead of determining whether she had a bachelor's degree in a related field, the visa officer went on to conclude that she did not have a graduate degree in a related discipline. In my view, the visa officer misinterpreted this requirement. It is not necessary for the purpose of this requirement to have a graduate degree in a related discipline, a bachelor's degree in a related discipline will suffice.
[13] The applicant submitted an affidavit listing some of the courses she took, including translation and simultaneous translation. These evidence were not before the visa officer and cannot be taken into consideration in a judicial review.
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Did the visa officer err in finding a requirement of graduate work as an employment requirement?
[141 The NOC employment requirements provide that a specialization in
interpretation, translation and terminology at the graduate level is usually required.
[151 In Karathanos v. M.C.l., [19991 F.C.J. No. 1528, Sharlow J. held
The National Occupational Classification indicates that for an archivist, "a master's degree in archival studies, library science or history is usually required" (emphasis added). The visa officer concluded that because Ms. Karathanos had only a bachelor's degree in history, she did not have the necessary qualifications for an archivist. In other words, the visa officer interpreted the words "usually required" as though they read "always required." The visa officer erred in this respect.
...] It can be said that in awarding points of assessment for the "education and training" category in Schedule I, an occupational category that usually requires a master's degree is treated as though it always requires a master's degree. However, it does not follow that the words "usually requires" must be read the same way in assessing the number of points in the "occupational factor" category. In assessing the applicant under that category, the words mean just what they say.
[161 Furthermore, in the introductory section of the NOC Handbook, it is
explained that:
Some occupations have very definite employment requirements while for others, there is no consensus or there may exist a range of acceptable requirements. To reflect this variation in the labour market, this section describes employment requirements using the following terminology:
... is required" (to indicate a definite requirement)
... is usually required" (to indicate something that is usually, but not always, required by employers)
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... may be required" (to indicate something that may be required by some employers, but on a less frequent basis).
[17] In the present case, the applicant lost points on the occupational factor and experience and not the educational requirement. Although it is true that "is usually required" under the education requirements is mandatory, it is not the case in the employment requirements as described in the jurisprudence and the NOC Handbook.
[181 The visa officer interpreted "is usually required" as mandatory and concluded that the applicant did not have any graduate studies in a related discipline. The visa officer erred in this regard.
[19) Furthermore, the visa officer further erred in interpreting this requirement by including a graduate degree in a related discipline, whereas, the NOC requirements state specifically that a specialization in interpretation, translation and terminology at the graduate level is usually required, there is no mention of a related discipline at the graduate level.
[20] The application should be granted and the matter ought to be referred back for determination by a different visa officer.
Pierre Blais
OTTAWA, ONTARIO December 13, 1999
Judge
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1845-99
STYLE OF CAUSE: Rong Xiao v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, B. C.
DATE OF HEARING: December 2, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE BLAIS DATED: December 13, 1999
APPEARANCES
Mr. Dennis Tanack FOR THE APPLICANT
Ms. Kim Shane FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Dennis Tanack FOR THE APPLICANT Vancouver, B. C.
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada
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