Date: 19990526
Docket: IMM-3095-98
BETWEEN:
XIAO LIAN HE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a decision of a visa officer at the Canadian Consulate General in Hong Kong in which the visa officer determined that the applicant did not meet the requirements for immigration to Canada in the independent category. The decision of the visa officer is dated the 18th of May, 1998.
[2] The decision under review reads in part as follows:
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Pursuant to subsections 8(1) and 10(1) of the Immigration Regulations, 1978 as amended, immigrants in the Independent category shall be assessed on the basis of each of the factors listed in column I of Schedule I of the Regulations. These factors are: education, specific vocational preparation, experience, occupational demand, arranged employment or designated occupation, demographic factor, age, knowledge of English and French languages and, on the basis of an interview, personal suitability. |
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I have assessed you in the occupation of Biological Engineering Technologist NOC 2211-1, for which you earned the following units of assessment: |
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Specific Vocational Preparation 15 |
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You have failed to earn the minimum required units of assessment required to pass in the Independent category (70). I consider the units of assessment which you have been awarded to be an accurate reflection of your ability to successfully establish in Canada. |
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I considered your application in the occupation of Chemist NOC 2112, but I am not satisfied that you have work experience in this occupation. |
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There are no other occupations in which you or your spouse are qualified and experienced and in which your application would succeed. |
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[3] The applicant is a citizen of the People's Republic of China. On the 4th of August, 1997 she, together with her husband and son, submitted an application for permanent residence which resulted in the decision here under review. The applicant identified herself as an independent immigrant with both a present and intended occupation of "Chemist". Along with her application, the applicant provided a copy of her resumé, a reference letter from her employer confirming that she had been employed from July, 1988 as a chemist (biochemist) with Xiaman Taohua Datong Enterprise Co. in Xiaman, Fujian. The applicant also enclosed copies of her degree certificates confirming that she had a bachelor of science degree and a master of science degree, each from Xiaman University, P.R.C.
[4] The applicant was interviewed in connection with her application on the 18th of May 1998. The interview was conducted in english, without the presence of an interpreter. Apparently there were no language difficulties. The applicant was accompanied at the interview by her husband.
[5] Counsel for the applicant urges that the visa officer erred in a reviewable matter in assessing the experience of the applicant and in failing to assess her in her preferred occupation, chemist, and further in the manner in which he assessed the applicant's personal suitability by concluding that she demonstrated a lack of adaptability and flexibility through her one-employer, one-employment career and her failure to more aggressively prepare herself for her immigration to Canada.
[6] In his affidavit filed on the application for judicial review, the visa officer attests in part:
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5. I asked the applicant [at the interview] to describe her work experience. Her responses to questions directed at the application of knowledge of chemistry were vague, and did not suggest substantive experience as a chemist. She stated that her work involved the preparation of enzymes, bacteria and amino acids used in the production of food sauces and spices, by culturing bacteria and extracting the required bacteria and enzymes. |
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12. The description of her work experience contained in the affidavit [filed by the applicant on this application] is much fuller and much more detailed than I obtained at interview, and is more indicative of experience as a Chemist. At the interview, however, the information regarding her work experience was far less indicative of such experience. Therefore, if I had assessed her as a Chemist, I would not have given her any points for experience. |
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13. The applicant failed to satisfy me at the interview that she had work experience as a Chemist, as defined in the NOC. Based on what she told me at the interview, the applicant only had experience as a technologist, performing routine biochemical procedures. She had no direct or substantive experience in research and experimentation, leading to the creation of new compounds, synthesis of compounds or involving biochemical research, which duties which [sic] are described in NOC as those of a Chemist. |
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14. The description of the applicant's work was indicative of that of NOC occupation 2221.1 Biological Technologist, that is conducting biological, microbiological and biochemical tests in support of quality control in food production. . . . |
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15. In assessing the applicant's personal suitability for immigration to Canada, I considered that she had been assigned to her job in China, a job which she has held without change for over nine years. Such a career does not suggest flexibility or adaptability. Adaptability to an open job market such as Canada's was also a concern. The applicant had no [sic] made notable efforts to prepare for immigration to Canada such as lessons to improve her English or research on job opportunities in Canada. This did not suggest strong motivation or initiative. In her personal and work history, I saw no notable demonstration of personal characteristics, such as resourcefulness, flexibility or adaptability, which could help her settle successfully in Canada. I therefore found her personal suitability to be bellow average and awarded four points under the suitability factor. I advised the applicant of my concerns and gave her the opportunity to disabuse me of them. Her response was that she would look for job opportunities once in Canada and would keep moving if necessary, until she found work. |
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[7] As indicated earlier in these reasons, the applicant's application was accompanied by a letter of reference from her employer. That letter of reference set out five areas of responsibility of the applicant. Those areas of responsibility reflect reasonably closely the duties of a chemist described in the NOC. There is no indication before the Court that the visa officer took this statement of responsibilities into account. Rather, it would appear that he relied entirely upon the interview. In the portions of the visa officer's affidavit quoted above, the visa officer acknowledges that he did not assess the applicant as a Chemist. He was under an obligation to do so1. If he had done so, he would have been obliged to take into account the letter of reference.
[8] Further, the visa officer's reliance upon the applicant's employment pattern to support the conclusion that her career did not suggest flexibility or adaptability has been negatively commented on by this Court in similar contexts. In Tam v. Canada (Minister of Citizenship & Immigration)2, Mr. Justice Rouleau wrote at page 209:
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First, it is clear that the visa officer drew a negative inference from the fact that the applicant had only worked in one job during his employment history. In my view, however, that fact does not support the visa officer's conclusion that the applicant had shown very little initiative, adaptability or motivation. |
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A similar conclusion is appropriate here, particularly on the basis of evidence that was before the visa officer that the applicant had, for a period of time, been a single mother and yet had continued to carry on the duties of her employment throughout that time, despite the difficulties that such a situation would obviously impose.
[9] Further, the visa officer's assurance in paragraph 15 of his affidavit quoted above that he ". . . advised the applicant of [his] concerns [regarding motivation, initiative, resourcefulness, flexibility and adaptability] and gave her the opportunity to disabuse me of them" has been held not to constitute sufficient assurance that the interview was conducted fairly. In Hussain v. Canada (Minister of Citizenship and Immigration)3, Mr. Justice Evans wrote at paragraph 42:
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I would also add that the visa officer's practice of asking an applicant at the close of an interview whether he or she wishes to add anything is not sufficient to satisfy the duty to make reasonable inquiries that is imposed by the duty of fairness. This practice fails to advise an applicant of the concerns that a visa officer may have in such a way as to provide the applicant with a reasonable opportunity to disabuse the visa officer of his or her particular concerns with an application. Rothstein J. in Chen v. Canada (Minister of Employment & Immigration) . . . wrote that: |
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. . . when the visa Officer becomes concerned that the applicant might not qualify. . . she should have questioned him specifically on each of the criteria separately. For her to have simply expressed concern in a general way and then expected a meaningful response is, in my opinion, not consistent with the requirements of procedural fairness. [citation omitted] |
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In this matter, the visa officer's affidavit provides no assurance that his provision to the applicant of an opportunity to respond to his concerns was of such a nature as to be consistent with the requirements of procedural fairness that applied to the interview in this matter.
[10] Based upon the foregoing considerations, and without reference to a number of other concerns of a more technical nature raised by counsel for the applicant before me and in written material filed on this application, this application for judicial review will be allowed.
[11] Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
Judge
Winnipeg, Manitoba
May 26, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3095-98
STYLE OF CAUSE: XIAO LIAN HE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: May 26, 1999
REASONS FOR ORDER
OF THE COURT: The Honourable Mr. Justice Gibson
DATED: May 26, 1999
APPEARANCES
Mira J. Thow
for the Applicant
Joel Katz
Dept. of Justice
Winnipeg, Manitoba
R3C 0S6
for the Respondent
SOLICITORS OF RECORD
Zaifman Associates
5th floor, 191 Lombard Ave
Winnipeg, Manitoba
R3B 0X1
for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent
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1see Issaeva v. Canada (Minister of Citizenship & Immigration), (1996), 37 Imm. L.R. (2d) 91 at pages 95 and 96 (F.C.T.D.) and Birioulin v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 222 at paragraphs 34 to 38 (F.C.T.D.) (Q.L.).
2(1996), 35 Imm. L.R. (2d) 207 (F.C.T.D.).
3[1998]F.C.J. No. 1538 (F.C.T.D.) (Q.L.).
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