Date: 19991006
Docket No.: IMM- 5537-98
Ottawa, Ontario, this 6th day of October, 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
LIYAN XU, QING CHANG AND GONGXIN XU
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
[1] Mr. Xu is an engineer from the People"s Republic of China who wishes to emigrate to Canada. He applied for a visa on the basis of his intended occupation in Canada as a civil engineer. He was paper-screened on that basis and was awarded 77 points (before consideration of personal suitability) on the grid provided for in Schedule I to the Immigration Regulations, 1978. He was interviewed to assess his employment experience and skills as he did not appear to have significant employment experience in an "English/French" environment, as well as to assess his proficiency in English. The Visa Officer found that, on a generous assessment, the applicant could read and write English with difficulty and that his ability to speak and understand English was "seriously limited".
[2] The Visa Officer noted that in order to practice engineering in Canada, the applicant would have to pass written examinations set by the governing body of the engineering profession in the province in which he settled. She believed that he did not have a sufficient command of English to be able to pass those exams. After reviewing his situation as an engineer, she assessed him as civil engineering technician. In that occupation, he scored only 66 points and was therefore not eligible for a visa since 70 points are required before a candidate is eligible to have a visa issued1. The applicant seeks judicial review of the Visa Officer"s decision on the ground that he was not assessed in his chosen profession and that the Visa Officer double-counted English as a factor by including it in her consideration of his intended occupation.
[3] It is not entirely clear whether the applicant was in fact assessed in the occupation of civil engineer. The refusal letter says:
| According to your request, I considered you as a civil engineer. An engineer in Canada must write and pass technical, law and ethics examinations in English or French and must obtain a licence. Without a licence, you could work in a technical area, but you could not call yourself and engineer, and you could not perform the full scope of engineering work or take responsibility for it; a licensed engineer would have to take the responsibility. Your language skills are inadequate for you to write and pass the required examinations. Therefore, you are not able to work in Canada as an engineer. I also considered your application with the intended occupation of civil engineering technician as you may be qualified and experience in that work. The assessment is as follows: |
| Specific Vocational Preparation 15 |
[4] The computer notes made by the Visa Officer show her reasoning process:
| SUBJ"S CASUAL EMP OFFER, PRODUCRED [sic] BY LAWYER, IS FOR A PERSON W CIVIL ENG"G BACKGROUND AND SALES/MARKETING EXPERIENCE. SUBJ HAS NO SALES/MARKETING EXP, SO HE WD NOT BE ABLE TO FULFILL ALL OF THE DUTIES REQUIRED BY THE JOB. |
| HE SAYS HE WOULD WORK WITH ASIAN PEOPLE, BUT IN AN ENGINEERING-RELATED CAPACITY, HE MUST EXPECT THAT AT SOME TIME HE WD HAVE TO WORK WITH DOCUMENTS WRITTEN IN ENGLISH AND PEOPLE WHO CANNOT ACCOMMODATE HIM IN HIS NATIVE LANGUAGE. I DID NOT TEST MR. XU"S ABILITY TO WRITE ENGLISH; HOWEVER, I TESTED HIS ABILITY TO READ. AN ASSESSMENT OF "WITH DIFFICULTY" WOULD BE VERY GENEROUS. I CONCLUDED THAT HIS ABILITY TO WRITE ENGLISH CD BE NO BETTER. HIS ABILITY TO SPEAK AND UNDERSTAND ENGLISH IS SERIOUSLY LIMITED. |
| MR. XU IS NOT ABLE TO WORK IN CANADA AS AN ENGINEER. THE PROFESSION REQUIRES THAT A PERSON BE LICENSED, AND LICENSURE REQUIRES WRITING AND PASSING EXAMS WHICH MR. XU WD BE UNABLE TO DO. HE WOULD NOT BE ABLE TO UNDERSTAND TECHNICAL DOCUMENTS WHICH WOULD BE A LARGE COMPONENT OF BEING ABLE TO WORK AS AN ENGINEER. WHILE A PERSON IS NOT REQUIRED TO WORK IN CANADA IN HIS/HER INTENDED OCCUPATION, A PERSON MUST BE ABLE TO DO SO. MR. XU IS CLEARLY UNABLE TO WORK IN CANADA IN HIS INTENDED OCCUPATION AND I BELIEVE THAT HIS PROSPECTS FOR ECONOMIC ESTABLISHMENT IN CANADA ARE UNFAVOURABLE. |
| IN MY OPINION, NO FACTORS EXIST BEYOND THE REGULAR SELECTION CRITERIA, AND NO SUCH FACTORS ARE PRESENTED ON FILE OR WERE MENTIONED BY MR. XU AT INTERVIEW. |
RECOMMEND NEGATIVE DISCRETION REFUSAL.
[5] The last line refers to the discretion conferred upon Visa Officers by Section 11 (3) of the Regulations, to refuse to issue a visa to a person "who is awarded the number of units of assessment required by section 9 or 10" when their score does not accurately reflect his/her chances "of becoming successfully established in Canada". The fact that the Visa Officer recommended the exercise of this discretion suggests that an assessment was done and at least 70 units of assessment were awarded to Mr. Xu. The fact that the Visa Officer then proceeded to have the exercise of this discretion confirmed by a senior immigration officer as is required by s. 11(3) is also significant. Neither of these steps is required unless an assessment has been completed. However, what appears from the refusal letter is that the Visa Officer declined to assess the applicant as a civil engineer on the basis of her belief that he could not pass the licensing examinations due to his poor English.
[6] There is authority in this court that an individual is entitled to be assessed on the basis of their chosen occupation even if the Visa Officer does not think they will embark upon their occupation:
| "In my opinion, s. 6 of the Immigration Act requires a visa officer to assess any immigrant who applies for landing in the manner prescribed by the Act and Regulations. Section 8(1) of the Regulations imposes, in mandatory terms, a duty to assess, and I find nothing in either the Act or the Regulations which would permit a visa officer to refuse to assess in respect of the occupation or alternative occupations which the immigrant (or his or her spouse) states it is intended be pursued in Canada. The Visa Officer erred in law and exceeded his jurisdiction by refusing to assess the appellant for admission to Canada as a Medical Technologist.2" |
[7] The same is true even if the Visa Officer does not believe that the immigrant has a command of the subject matter of the particular occupation. See Iasseva v. Canada, [1996] F.C.J. No. 1679. In Iasseva, Rothstein J. goes on to comment that an informal review does not constitute an assessment as required by the Act and Regulations.
| An assessment is not an informal or preliminary determination by a visa officer. The terms "assess" or "assessment" mean the process of applying to the prospective immigrant the factors listed in column I of Schedule I of the Regulations |
[8] There is however, a line of cases which suggests that if it is obvious that an immigrant is not qualified for a particular job, no useful purpose is served by doing an assessment. See Lim v. Canada (1991), 12 Imm. L.R. (2nd) 161 (F.C.A.) where the Federal Court of Appeal upheld the Visa Officer"s refusal to assess the immigrant as a personnel officer where the Visa Officer determined that the immigrant did not have the qualifications required by the Canadian Classification and Dictionary of Occupations (CCDO). The Court characterized the assessment of the immigrant"s qualifications as "a pure question of fact entirely within the mandate of a visa officer to resolve". In Cai v. Canada [1997], F.C.J. No. 55, Pinard J. held that:
| If, however, the visa officer ascertains that an applicant does not meet the criteria for the occupation under which he or she seeks to be assessed (in this case the formal training requirements for the occupation of executive secretary) as stipulated by the definition in the CCDO, it is not unreasonable, in my opinion, for the visa officer to hold that the applicant cannot be further assessed in that occupational category. |
[9] It would therefore seem that an applicant is entitled to be assessed in his/her chosen occupation, provided that he/she meets the occupational qualifications stipulated by the Regulations which, in this case, are defined in the National Occupational Classification (NOC). In the case of civil engineers, the NOC stipulates that the employment requirements for civil engineers are:
| - A bachelor"s degree in civil engineering or in an appropriate related engineering discipline is required. |
| - Registration as a Professional Engineer (P. Eng.) by a provincial or territorial association of professional engineers is often required for employment and to practice as a civil engineer. |
| - Engineers are eligible for registration following graduation from an accredited educational program and after at least two years of supervised work experience in engineering and, in some provinces, after passing a professional practice examination. |
| - In some provinces, those who are not graduates of an accredited educational program are eligible for registration after completing a six to eight year term of supervised employment and successfully passing examinations. |
| - In Quebec, membership in the professional corporation for engineers is mandatory. |
[10] The NOC requirements do not explicitly speak of proficiency in English or French. The requirement for licensing is to be taken as prospective, in the sense, that an immigrant will have to achieve registration after arriving in Canada, and not as a present requirement in the sense that an immigrant must be registered in order to qualify for a visa. To that extent, Mr. Xu is in the same position as all other applicants. All will have to pass the registration exams to become registered engineers.
[11] It is to be noted that Mr. Xu had submitted his academic qualifications to the Canadian Council of Professional Engineers who had informally assessed his academic credentials as being as suitable for application for registration. The Visa Officer"s notes show that Mr. Xu was able to satisfy her that he had the experience required by the NOC definition of civil engineer. He therefore met the requirement of the NOC except for the licensing requirements which, as noted, are prospective.
[12] Paragraphs 10 and 11 of the Affidavit of Sandra Kim Brady, the Visa Officer, provide some further insight into the refusal of Mr. Xu"s visa application;
| 10. According to the Canadian Council of Professional Engineers (CCPE), to work in Canada as an engineer, a person must be licensed. To become licensed, a person must pass professional examinations which are offered in English and French. If a person does not pass those examinations, he/she cannot use the title "engineer", cannot perform the full scope of duties required of an engineer and cannot take responsibility for engineering work. The work person would have to be supervised by an engineer who would take responsibility for that person"s work. Included in the materials provided to Mr. Xu by the CCPE was information which indicated that, normally, to be licensed as a professional engineer in Canada, a person must write and pass examinations and be proficient in English. A copy of the CCPE document is at pages 52-54 of the tribunal record. |
| 11. Following the interview, I contacted the CCPE and confirmed that Mr. Xu would have to pass examinations in English or French before he could be considered for licensing as an engineer. Mr. Xu had not satisfied me that he might reasonably be able to do this. I, therefore determined that he did not qualify as a civil engineer for purposes of immigration to Canada. |
[13] It would appear from this that the determining factor in Ms. Brady"s assessment of Mr. Xu"s application was her reliance upon information provided by the CCPE and her assessment that Mr. Xu did not have sufficient proficiency in English to pass the licensing examinations.
[14] There is, in my view, a distinction to be drawn between present occupational requirements, such as training and experience, and prospective occupational requirements, which will have to be satisfied after arrival in Canada. It is within the scope of the Visa Officer"s function to make judgments about present occupations requirements, as was confirmed by the Federal Court of Appeal in Lim, supra . Prospective occupational requirements are a different matter in that they will be assessed by a competent authority after a candidate has settled in Canada. A visa officer is not necessarily in a position to judge how an individual will succeed in that assessment. Would it be open to a visa officer to refuse a visa to an immigrant applying for admission as an engineer on the ground that she felt his grasp of mathematics was not sufficient? These are matters best left to the authorities whose function it is to assess the candidates.
[15] There is no doubt that, for various reasons, some of the candidates who are granted visas to come to Canada as engineers will not pass the licensing examinations. Short of requiring registration as a condition of granting a visa, that is simply a risk which is inherent in the system. On this issue, Mr. Xu, having otherwise satisfied the requirements of the NOC, should not be placed in a different position than other candidates for licensing. This is particularly so since the CCPE material referred to by the Visa Officer provides that a minimum of 12 months experience in Canada is required to be eligible for licensing. Mr. Xu would therefore have one year"s experience of working in Canada in which to improve his English prior to writing the examinations.
[16] I therefore find that the Visa Officer exceeded her jurisdiction in purporting to assess whether Mr. Xu could successfully pass the licensing examinations. He met the requirements of the NOC to the extent that any candidate can meet them prior to actually being settled in Canada. For purposes of assessment, he ought to have been treated as applying under the occupation of civil engineer. This would have increased his score with respect to Specific Vocational Factor by 2 points and his score for Occupational factor by 4 points for a total of 72 assessment units.
[17] However, that does not end the matter. Given the purported exercise by the Visa Officer of her discretion to deny Mr. Xu a visa, which was apparently concurred in by a senior immigration officer, is Mr. Xu caught by the exercise of negative discretion notwithstanding my findings? Ms. Brady"s affidavit says at paragraph 12:
| 12. Further, as the Applicant did not satisfy me that he would have been able to understand technical documents in English or French, which would likely be a large component of civil engineering work, I was of the view that, even if he had been able to obtain a licence notwithstanding whether he could undertake and pass the exams, he would not have been able to work in Canada in his intended occupation. Therefore, his prospects for economic establishment in Canada were not favourable. Consequently, even if I had found the Applicant to be qualified as a civil engineer and if he had obtained enough points to pass selection, his application would have been denied pursuant to the exercise of negative discretion. Indeed, as is reflected in my CAIPS notes, I had initially recommended the use of negative discretion on this basis and had obtained approval from a Senior Immigration Officer. However, as the Applicant did not obtain the required number of points to pass selection, his application was not denied on the basis of the exercise of negative discretion. |
[18] Since Mr. Xu"s visa application was not denied on the basis of the exercise of negative discretion, there is no reason why it cannot be sent back for reassessment by a different visa officer on the basis of his intended occupation as a civil engineer. However, there is nothing to prevent that officer from exercising his/her discretion as Ms. Brady had intended to exercise hers if Mr. Xu"s prospects of successfully establishing himself remain limited by reason of his poor grasp of English. This is something over which he has some control.
[19] Neither counsel suggested a question for certification. In view of the distinction I have drawn between present requirements and prospective requirements, I certify the following question as a serious question of law of general application:
| Is it within the jurisdiction of a visa officer to decline to assess a visa applicant with respect to the occupation designated by the applicant on the basis of the officer"s judgment that an applicant will probably be unable to satisfy Canadian licensing requirements in the applicant"s designated occupation on the basis of: |
| 1) factors taken into account elsewhere in Schedule I, for example, the applicant"s proficiency in English or French; or |
ORDER
The decision of Visa Officer Sandra Kim Brady dated September 18, 1998 is hereby set aside and the matter is remitted for reconsideration by a different Visa Officer.
"J.D. Denis Pelletier"
Judge
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1 Subsection 9 (1)(b)(i) of the Immigration Regulations, 1978.
2 Uy v.Canada (M.C.I.) (1991) 12 Imm L.R. (2nd) 172 (F.C.A.) per Mahoney J.
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