Date: 19990604
Docket: IMM-3264-98
IMM-3266-98
BETWEEN:
LI YUE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
- and -
BETWEEN:
DE HE CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDERS
GIBSON J.:
[1] These reasons arise out of two applications for judicial review of decisions of a visa officer made at the Canadian Consulate General in Hong Kong wherein the visa officer rejected the applications of the two applicants for permanent residence in Canada. The decision in respect of Li Yue (sometimes identified in the documents before the Court as Yue Li and referred in these reasons as "Mr. Yue") is dated the 29th of May, 1998. The decision in respect De He Chen (in these reasons, "Mr. Chen") is dated the 3rd of June, 1998.
[2] These two applications, with very similar facts, were heard together. These reasons reflect my description of the relevant background facts, and my analysis and decision with respect to each of the applicants.
[3] Both applicants are citizens of the People"s Republic of China. Both applied for immigration to Canada in the independent category indicating their intended occupation in Canada to be "mechanical engineer". Both are qualified as mechanical engineers in China and both have reasonably extensive employment experience in that profession in China. Each engaged the assistance of the same immigration consultant to assist them in their applications. Each provided a favourable assessment of his qualifications from the Canadian Council of Professional Engineers ("CCPE") confirming that their engineering qualifications appeared acceptable for immigration purposes and each filed favourable reference letters from two employers.
[4] Each of the applicants was interviewed by the same visa officer on the 26th of May, 1998 in "back-to-back" interviews. Both applications were rejected. The decision letter in each case contained the following brief paragraph:
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I have assessed you in the occupation of Mechanical Engineer NOC 2132.0. Based on your description of your skills, experience and training, you were determined not to qualify to undertake that occupation in Canada. |
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Each was also assessed in the occupation Mechanical Engineering Technologist NOC 2232.1. Mr. Yue received a total of sixty-seven (67) units of assessment. Mr. Chen received a total of sixty-six (66) units of assessment.
[5] In the visa officer"s affidavit filed in response to Mr. Yue"s application, the visa officer attests in part as follows:
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... 11. The applicant has received a positive CCPE assessment for his training as an engineer. However, I was waiting for an answer to a general query from the CCPE which would have an application to many cases, including his own. I advised the applicant that the general query I had made was "Had the CCPE assessed the "total of 16 years education" requirement in each and every case?". This was because I had noted that many of the applicants from China I would be interviewing who had a positive informal assessment from the CCPE had completed only 14 or 15 years of total education, despite the fact that it is mandatory requirement for positive CCPE assessment that graduates shall have attended no less than 16 years of schooling of which at least 3 years are at the university level. This applicant had acquired a total of only 14 years of education. |
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12. Deborah Wolfe, an employee of the CCPE had advised me that the CCPE"s informal assessment of the applicants from China up until June, 1998 had consisted of reviewing only the applicants university transcripts to determine if the Engineering degree was comparable to a Canadian one. The "total of 16 years education" requirement had not been verified. Therefore, the CCPE assessment was only an assessment of the applicant"s post secondary education. |
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13. Representatives from the CCPE visited the Hong Kong office in June, 1998 and admitted that, following their tour of China, they would have to review a number of cases which had previously been given positive assessments. This was due to the fact that they had discovered that many of the engineering training institutions and the general education available in China prior to entering these post secondary institutions to be of a much lower standard than assumed. I did not seek a reassessment of this particular case, because the opinion of the CCPE is in no way binding on my assessment of the applicant with respect to skills and actual work experience. |
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14. It was apparent from an early point in the interview that the applicant had been extensively prepared for my line of questions. This was made all the more obvious because the applicant"s answers to many of my questions regarding his work experience and the steps he would take to obtain employment in Canada were identical, almost word-for-word, to those given by the applicant interviewed immediately before him. When asked, the applicant grinned but did not admit nor deny his consultant had had him memorize set responses for the purpose of passing the interview. |
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17. The applicant produced two employer reference letters. I accepted that the one from Alcoa was genuine, however, it did not describe the duties of an engineer as envisaged in the NOC. The second employer reference letter, from the Gear Cutting Machine Research Institute where the applicant had been employed for almost twelve years, lacked credibility in that it parroted specific phrases or concepts lifted directly from the NOC. It is not possible that there could be such a strong coincidence between the wording contained in the NOC and a letter written by an employer from China. |
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19. Contrary to the applicant"s allegation in paragraph 9 of his affidavit, I never told the applicant that mechanical engineers whose consultant is Stanley Wong give all the same answers. I never told him that his materials were "too complicated" or that I "had no time to look at it". I told him that I had made a general query to CCPE which would apply to many cases, including his own, therefore I would review his application and all his materials later in the day, but that the interview would be ending shortly, as I had other applicants to interview. At all times, I was courteous, and I did in fact review all his materials later that afternoon as well as on May 28, 1998. |
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21. During my three years in China as a visa officer, I interviewed hundreds of engineers. I never saw a case such as this and that of the previously interviewed applicant where the applications seem to have been "tailor-made" to fit the NOC description for mechanical engineers so precisely, in fact, too precisely. However, I refused the applicant"s application on its merits, and not simply because the applicant"s responses were so similar to the previous applicant. |
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The equivalent affidavit of the same visa officer in response to Mr. Chen"s application provides in part as follows:
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... 8. It was apparent from the outset of the interview that the applicant had been fully rehearsed to answer my particular set of questions. ... |
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10. The applicant"s answers with respect to his skills as an engineer appeared memorized and rehearsed in that he used virtually the identical terminology found in the NOC for Mechanical Engineers. Because the applicant"s answers seemed so rehearsed, I asked the applicant to describe a typical working day, so I could hear the applicant describe what he does on the job in his own words. The applicant did not provide any specifics as to any practical work he performed, he only stated that he attended a lot of meetings. |
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13. I reviewed the applicant"s employer reference letter with the applicant. The letter parroted specific phrases or concepts found in the NOC. I asked the applicant whether his employer had written the reference letter on his own, or whether the applicant"s consultant had prepared the letter for the employer"s signature. The applicant stated that his employer had written the letter without any assistance. I told the applicant that it struck me as very unusual that there could be such a strong coincidence between the wording of the NOC and a letter written by a Chinese employer who has supposedly never seen the NOC. I told the applicant that I therefore had difficulty believing his statement that the employer did not receive any assistance in preparing the reference letter. The applicant insisted that his employer had written the letter without any assistance. |
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15. In response, the applicant said he had performed a feasibility study. I asked him what a feasibility study was and he began to recite the text from the NOC relating to performing a feasibility study. This response reinforced my opinion that the applicant had been coached and had simply memorized the NOC description for a Mechanical Engineer. |
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24. In paragraphs 7 and 8 of the applicant"s affidavit, the applicant indicates what answers he gave when asked how he intended to settle in Canada and what savings he had. The applicant"s response again seemed rehearsed, as evidenced in his affidavit. It was so systematic and detailed, including his assertions that he would first "obtain a Social Insurance number at the nearest local Employment and Immigration Centre", "do volunteer work in the local community for getting work experience", and "go to night school" for "English as a second language" training. It was hard to believe that the applicant would have used these words and thought of all these things on his own. The "friends" he refers to are in fact the "Kuma International Movers Inc.", a settlement consulting firm. I again asked the applicant if his consultant had assisted him in preparing for the interview, but he denied it. |
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31. Immediately following this applicant"s interview, I conducted an interview with another independent immigrant applicant whose intended occupation was also that of a mechanical engineer. In many cases the second applicant had the identical answers as those of this applicant. The second applicant also had the same type of employer reference letters with many phrases or concepts lifted directly from the NOC description for mechanical engineers. I flipped through this second applicant"s file during his interview and I noted he was represented by the same consultant as the applicant. I asked this second applicant if his consultant had helped him prepare his responses prior to the interview. The second applicant did not deny it. |
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Paragraph 33 of the visa officer"s affidavit on the Chen file is essentially identical is substance to paragraph 21 of the officer"s affidavit on Mr. Yue"s file.
[6] Despite the able argument of counsel for the respondent, I am satisfied that both of these applications should be allowed. The foregoing extracts from the visa officer"s two affidavits demonstrate a denial of fairness amounting to a breach of natural justice in each case.
[7] The visa officer relied on extrinsic evidence provided by the Canadian Council of Professional Engineers without providing the applicants a reasonable opportunity to respond to that extrinsic evidence. In the event, the visa officer rejected the two applications without waiting for a definitive response from the CCPE. When a definitive response was received, and this evidence was before me, the earlier concern expressed by the visa officer to the CCPE, and tentatively confirmed by the CCPE, was withdrawn.
[8] The visa officer relied on the fact that the two applicants took the initiative to receive counselling and advice in support of their applications for landing in Canada to make findings against them. Clearly the visa officer was dissatisfied with reference letters that the officer felt too closely parallelled terminology of the National Occupational Classification. She had the same reaction to responses by the applicants that also reflected the language of the same document. I find the attestations of the visa officer to the effect that she provided the applicants reasonable opportunities to meet her concerns in words of their own choice to be substantially less than convincing. Clearly, no opportunity was provided to employers who had provided letters of reference to rephrase those letters in words that they might have otherwise used.
[9] I conclude that the visa officer demonstrated a bias against employment experience on the part of the two applicants with state run enterprises without adequate explanation to support her concern in that regard.
[10] Finally, and perhaps most importantly, the visa officer"s affidavits make it clear that each applicant was prejudiced by the juxtaposition of the two interviews so closely to one another. Neither applicant had anything approaching a reasonable opportunity to respond to concerns that the visa officer obviously had flowing from parallel responses of the other applicant at a different interview.
[11] In summary, each applicant was prejudiced by his initiative and enthusiasm resulting in what the visa officer perceived to be over-preparation of the applicants and those who provided reference letters on behalf of each of them. They further suffered prejudice through the reliance by the visa officer on extrinsic evidence to which they were provided no reasonable opportunity to respond and to which they would not have had to respond at all if the visa officer had awaited a final response from the CCPE.
[12] Finally, the manner in which the visa officer interrelated her observations from the two consecutive interviews to the prejudice of the applicants in attendance at each was clearly unfair.
[13] In Yassine v. Minister of Employment and Immigration1, Mr. Justice Stone wrote at page 312:
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... I do not suggest that a breach of natural justice does not normally require a new hearing. The right to a fair hearing is an independent right. Ordinarily the denial of that right will void the hearing and the resulting decision... . An exception to this strict rule was recognized in Mobile Oil Ltd. et al v. Canada-Newfoundland Offshore Petroleum Board, ... where, at page 228, the Supreme Court of Canada quoted the following views of Professor Wade: |
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"A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claims are such that it would in any case be hopeless." |
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While recognizing that natural justice or procedural fairness had been denied, the Supreme Court gave effect to Professor Wade"s distinction by withholding a remedy because the outcome was "inevitable", in that the decision-maker "would be bound in law to reject the application" of the appellant therein. [citations omitted] |
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[14] I find that the foregoing applies equally to the effect that a breach of natural justice or procedural fairness in the consideration of an application for immigration to Canada normally requires a full reconsideration of that application. I find no basis on which to conclude that the exception to that general rule enunciated in Mobile Oil applies on the facts of these two applications. I find no basis on which to conclude that an outcome against the applicants on reconsideration would be "inevitable" or that a visa officer would be bound in law on such reconsiderations to reject the two applications.
[15] For the foregoing reasons, these applications for judicial review will be allowed and the applicants" applications will be referred back to the respondent for redetermination by a different officer. The applicants will be entitled to their costs which I fix at the amount of $1,000, inclusive of the disbursements, on each application.
[16] Neither counsel recommended certification of a question. No question will be certified.
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Judge
Ottawa, Ontario
June 04, 1999
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1 (1994), 172 N.R. 308 (F.C.A.), (not cited before me).
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