Date: 19990416
Docket: IMM-643-98
BETWEEN:
MINZHONG LU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 [as amended] by Minzhong Lu ("the applicant"). The applicant requests the Court to review and, among other things, to set aside a decision dated January 19, 1998 in which a Foreign Service Officer ("the visa officer") rejected his application for a visa to come to Canada.
[2] The applicant is a citizen of the People"s Republic of China. He obtained a secondary school diploma in 1975, and in 1977 completed a one year vocational training program at the Fuzhou Civic Cook General School after passing the senior cook examination. He stated in his affidavit that after graduating from this program he was employed until 1992 as head chef in a restaurant in Fuzhou. Since then he has been employed in a similar capacity at a Chinese restaurant in the United States.
[3] In April 1997 Mr. Lu submitted a visa application for permanent residence status in Canada as an independent applicant in the category of skilled worker. He designated head chef as the occupation that he intended to pursue in Canada. In the relevant space on the application form he expressed a preference that his visa application be processed at the Canadian Consulate in Detroit.
[4] The visa application, together with supporting documentation, was received by the Regional Program Centre ("the RPC") at the Canadian Consulate General in Buffalo. In its standard-form acknowledgement of receipt, the RPC advised the applicant that it would process his application within the next twelve weeks. That is, within this period his application would be rejected or granted on the basis of the material submitted, or the applicant would be referred for an interview with a visa officer who would then make a decision on the application.
[5] Mr. Lu was first assessed under the Canadian Classification and Dictionary of Occupations ("the CCDO"). However, since he would not be awarded sufficient units of assessment under the CCDO, his application was also assessed under the National Occupational Classification ("the NOC") which was replacing the CCDO as the prescribed tool of evaluation for independent applicants.
[6] On the basis of the evaluation factors listed in Schedule I of the Immigration Regulations, 1978, SOR/78-172 [as amended] ("the Regulations") by which visa officers are required to assess applicants" ability to become successfully established in Canada (paragraph 8(1)(a )), the applicant was awarded 49 units of assessment. This is 11 units short of the 60 units required before an applicant is referred for an interview (paragraph 11.1(a)(i)), and 21 short of the 70 units of assessment normally required before an officer may issue a visa to an applicant in the category in which Mr. Lu had applied (subparagraph 9(1)(b)(i)).
[7] The applicant"s counsel, Mr. Leahy, canvassed a wide range of issues in his written and oral submissions. Some I shall deal with quite briefly by reference to my reasons on the identical issues that he raised before me in two other similar cases concerning Chinese cooks who are currently employed in the United States and are seeking visas to come to Canada to pursue similar intended occupations. The decisions in question are Chen v. Minister of Citizenship and Immigration (F.C.T.D.; IMM-2225-98; April 16, 1999) and Wang v. Minister of Citizenship and Immigration (F.C.T.D.; IMM-1024-98; April 16, 1999).
| ISSUE 1: Did the visa officer have jurisdiction to determine the applicant"s visa application? |
[8] Mr. Leahy"s submission on this issue was that the visa officer had no jurisdiction to determine Mr. Lu"s application because there was no statutory authorization for the creation of the RPC, which enabled officers to refer an application for processing at any Canadian consulate that they chose, and to ignore applicants" expressed preferences for processing at particular posts. Moreover, he argued, if the visa officer had jurisdiction to process the applicant"s file, she lost it by failing to make a decision after twelve weeks, the period within which the RPC had advised the applicant that his application would be processed.
[9] For the reasons that I gave in Chen, supra, I find these arguments to be without merit.
| ISSUE 2: Did the visa officer err in her assessment of the applicant"s Specific Vocational Preparation ("SVP"), and in her refusal to assess the applicant"s experience in his intended occupation of head chef because he did not satisfy the SVP factor? |
[10] The visa officer took the view that, before she evaluated the applicant"s experience in his intended occupation under the Experience Factor in Schedule I of the Regulations, she had to determine first whether his education and training satisfied the SVP prescribed for the occupation of head chef. The visa officer decided that the material submitted with the application by the applicant showed only the one year of formal training that he had received at the Fuzhou Civic Cook General School. At least four years of training are required in order to obtain the 18 units of SVP designated for the occupation of head chef.
[11] Counsel for the Minister acknowledged that the training required for this occupation could include on-the-job training: Nakamine v. Canada (Minister of Citizenship and Immigration) (1998), 41 Imm. L.R. (2d) 255 (F.C.T.D.). However, the applicant produced no evidence that he had received any training of this kind: years of working in a restaurant are not an adequate substitute, counsel argued, for structured and supervised on-the-job training. Given that the visa officer was prepared to consider evidence of such training, if it had been produced, I do not find that she committed an error of law in this aspect of her assessment of the applicant"s SVP.
[12] The more radical proposition advanced by Mr. Leahy was that the visa officer erred in principle when she assessed the SVP of the applicant himself. Counsel"s contention was that the officer should have assessed the applicant"s experience as head chef, and if she found that he had experience in his intended occupation, she should have automatically assigned the 18 units of assessment for SVP that are attached to this occupation. In other words, he argued, the SVP is simply a function of the occupation, and not an assessment of the education and training that an individual actually possesses.
[13] For the reasons that I gave in Chen, supra, I do not accept that the approach propounded by Mr. Leahy is the one required by Schedule I: see also Hanif v. Minister of Citizenship and Immigration (F.C.T.D.; IMM-3744-97; Jan. 29, 1998). Indeed, it seems to me that the visa officer"s analysis is more closely related than that of Mr. Leahy to the ultimate question, namely, the likelihood of an applicant"s becoming successfully established in Canada.
[14] Moreover, in the absence of any evidence that an applicant is qualified to pursue alternative occupations, a visa officer is under no obligation to conduct an assessment in an occupation that was neither designated as the intended occupation, nor included in it: Manji v. Minister of Employment and Immigration (F.C.T.D.; T-1267-92; April 21, 1993). Accordingly, the visa officer did not err in failing to consider Mr. Lu in the occupation of chef, foreign foods.
| ISSUE 3: Did the visa officer err in law in evaluating the units of assessment to be awarded to the applicant under the Education and Training Factor ("ETF") specified in the NOC? |
[15] In calculating the ETF units of assessment, the visa officer used the computer generated data that all officers use, without making a personal evaluation of the education and training actually received by Mr. Lu. The methodology involved the officer"s finding in the Education and Training Index ("ETI") the numerical value assigned to the applicant"s occupation in the NOC: it was "4+". Using computer generated data, she then converted this into 7 units of assessment under the ETF.
[16] Mr. Leahy"s argument was that, since an ETI value of "4+" is obviously greater than one of "4", for which 7 ETF units are assigned, but less than an ETI value of "5", for which 15 ETF units of assessment are assigned, the visa officer ought to have made an individual assessment of the applicant"s education and training. On the basis of that personal assessment, she should have decided where the applicant ought to be placed on a spectrum ranging from 8 to 14 units of assessment.
[17] I do not accept this argument. The visa officer is not required to speculate on how ETI values are translated into ETF units of assessment. Indeed, as counsel for the Minister pointed out, there is no evidence in the record before me as to what an ETI value of "4+" actually means. Since the NOC is incorporated into the Regulations, any suggestion that the officer fettered her discretion by applying its prescriptions is misconceived. I am not satisfied that the technical exercise that visa officers are required to perform to calculate the ETF units of assessment is the result of either a misinterpretation of the law or an unlawful fettering of discretion, or is patently unreasonable.
[18] I do recognize, however, that it is somewhat paradoxical that the Minister has argued that for the purpose of determining an applicant"s SVP units of assessment under the CCDO it is necessary to assess that person"s actual training, while ETF units of assessment are calculated under the NOC on the basis of generic data, not individual evaluation. Nonetheless, the existence of a paradox does not mean that it is an error of law for the respondent to conclude that different methods of evaluation are called for by the CCDO and NOC respectively.
| ISSUE 4: Did the visa officer err in assessing the applicant"s Education Factor at ten units of assessment, rather than thirteen? |
[19] This seems to me to be the applicant"s best point. Mr. Leahy argued that it was procedurally unfair for the visa officer to have concluded on the basis of the documents supplied by the applicant, which were identified in the application form as documents that applicants should submit, that he was not entitled to 13 units of assessment, as his counsel had estimated. If the officer thought that the applicant"s secondary school diploma was not of the kind that might have led to university entrance, or that admission to the one year vocational training program at the Fuzhou cooking school did not require this kind of secondary school diploma, she should have alerted the applicant to her concerns and given him an opportunity to respond.
[20] I considered very similar issues in Chen, supra, and Wang, supra, and concluded that the problem was not attributable to the applicant"s failure to produce sufficient evidence to satisfy the visa officer that he should be assessed at the higher number of units under the Education Factor in Schedule I of the Regulations. Since Mr. Lu had provided the very documents identified in the checklist, the officer should not have reached a conclusion adverse to him because other information about Mr. Lu"s educational qualifications was missing, at least not without first alerting Mr. Lu to her concerns, and giving him an opportunity to provide an explanation or to submit additional evidence.
[21] However, given my conclusions on the other issues raised by the applicant, even if the applicant had been given an additional three points under the Education Factor, it could have made no difference to the ultimate result. Accordingly, in the exercise of my discretion I am not prepared to set aside the visa officer"s decision in this case on the ground of procedural impropriety.
| ISSUE 5: Did the visa officer err in failing to consider the exercise of positive discretion pursuant to subsection 11(3) of the Regulations? |
[22] Mr. Leahy argued that visa officers must always consider whether to exercise their statutory discretion under subsection 11(3) of the Regulations. This provision enables them to issue a visa to a person who has not obtained the normally required number of units of assessment as a result of an evaluation of the factors listed in Schedule I if, in the officer"s opinion, the units of assessment do not reflect the applicant"s ability to become successfully established in Canada.
[23] Mr. Lu did not request the visa officer to consider the exercise of this discretion. In Lam v. Minister of Citizenship and Immigration (F.C.T.D.; IMM-4458-97; August 31, 1998) Rothstein J. (as he then was) held that a visa officer may exercise of his or her own volition the discretion conferred by subsection 11(3). He also said:
However, if an applicant wishes the visa officer to exercise discretion under subsection 11(3), it would seem that some form of application would be required. While there is no prescribed wording to which an applicant must adhere, I would think the application would at least have to indicate some good reason why a units of assessment determination would not reflect the chances of successful establishment in Canada by the applicant. There was no such application here.
[24] Given the residual nature of subsection 11(3) in the overall statutory scheme for the selection of immigrants, which is designed in part to reduce the potentially arbitrary or inconsistent exercise of discretion by visa officers on a case by case basis, I agree with the position adopted in Lam.
[25] Accordingly, since Mr. Lu did not make an application for the exercise of discretion, the visa officer did not err in law in failing to consider whether she should exercise it. Nor do I think that the officer erred in not regarding as a request for the exercise of discretion under subsection 11(3) a letter from Mr. Leahy asking that Mr. Lu"s application be considered on humanitarian and compassionate grounds.
[26] For these reasons the application for judicial review is dismissed. In view of my conclusion on the issues raised, and the other factors prescribed in Rule 400(3) of the Federal Court Rules, 1998, SOR/98-106, I make no award of costs in this matter.
TORONTO, ONTARIO "John M. Evans"
April 16, 1999 J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-643-98
| STYLE OF CAUSE: MINZHONG LU |
Applicant
and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
DATE OF HEARING: TUESDAY, JANUARY 26, 1999
PLACE OF HEARING: TORONTO, ONTARIO
DRAFT REASONS FOR ORDER BY: EVANS J.
DATED: FRIDAY, APRIL 16, 1999
APPEARANCES: Mr. Timothy Leahy
For the Applicant
Ms. Andrea Horton
For the Respondent
SOLICITORS OF RECORD: Timothy Leahy
Barrister & Solicitor
408-5075 Yonge Street
Toronto, Ontario
M2N 6C6
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990416
Docket: IMM-643-98
Between:
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
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