Date: 19990730
Docket: IMM-2000-98
BETWEEN:
XIAO MEI ZOU,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of the decision of a visa officer dated February 26, 1998, refusing the applicant's application for permanent residence in Canada.
[2] The applicant seeks an order setting aside the decision of the visa officer and an order directing the respondent to accept her application. In the alternative, she asks for an order referring the matter to a different visa officer for redetermination.
[3] The applicant is a citizen of China. She submitted an application for permanent residence in Canada in the independent category in February 1997. She asked to be assessed under the occupation of Petroleum Engineer, CCDO 2154-114. At the interview, she also asked to be evaluated as a Chemical Engineer, Production CCDO 2142-118.
[4] The applicant received a Bachelor's degree in Petroleum Processing from the Department of Petrochemical Engineering of the Fushun Petroleum Institute in 1992. On August 28, 1993, she received the professional title of Assistant Engineer. She has not yet obtained the professional title of Engineer. In China, the designation of "Engineer" requires at least five years' work experience, as well as nomination by the head of the work unit for the submission of one's work achievements to the National Conferring Unit, or a designated local Conferring Unit for assessment. Sometimes examinations are required. A Qualification Certificate is issued upon a positive assessment. The applicant did not have this certification, nor can she obtain it automatically upon completing the required number of years' work.
[5] Since 1992, the applicant has worked for the Fushun First Petroleum Refinery. After a first year of practical training in the Solvent Degreasing Workshop, she worked as an Assistant Engineer in the Business Management Department. (In China, "Assistant Engineer" refers to a Junior Engineer) Her work consisted in the following:
| 1. Designing, managing and overseeing the quality control of the production of petroleum products for the entire refinery; |
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| 2. Drafting and continually revising the refinery's quality standards; |
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| 3. Ensuring that the quality of production of petroleum products in the entire refinery is in accordance with ISO 9002 quality standards by: |
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| a. collecting quality control testing and inspection results from other engineers and technicians, analysing the results, identifying and classifying problems; and |
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| b. directing the appropriate departments, engineers and technicians regarding what actions must be taken and how production methods and equipment should be modified to eliminate problems, improve quality and be in accordance with ISO 9002 standards. |
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| 4. Conducting weekly quality control meetings for other engineers and technicians; and |
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| 5. Teaching course in quality control and mathematical statistical methods to other engineers and to technicians (four courses per year). |
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[6] The Canadian Council of Professional Engineers (CCPE) has favourably assessed the applicant's qualifications for immigration purposes. The applicant claims the CCPE has assessed both her education and her work experience. The visa officer affirms that the CCPE only evaluated the applicant's academic qualifications, but not her experience.
[7] It appears that only the applicant's academic qualifications were considered. It should be noted that the CCPE only performs informal assessments of engineering qualifications for immigration purposes. Once a person becomes a permanent resident of Canada, he or she must apply to be licensed at the engineering association in their province of residence.
[8] The applicant was interviewed on February 20, 1998 by Susanna Ching, a visa officer at the Canadian Consulate in Hong Kong. She determined that the applicant did not qualify as a Petroleum Engineer. She explains that the applicant had no experience in the drilling process or working on site at oil fields for the extraction of petroleum.
[9] The visa officer also evaluated the applicant as a Chemical Engineer, Production. However, she found the applicant did not meet the requirements, as she did not have any experience in supervising industrial processing, fabrication, maintenance and repair operations to ensure production of scheduled amounts of products undergoing physical and chemical changes.
[10] The applicant was familiar with the process of different technologies and controlling all kinds of production conditions. She knew about the process and technology of crystallization, filtration, reclamation and refrigeration, distillation of crude petroleum oil and re-separation of under-wax oil into wax products and lubrication oil. In the visa officer's opinion, the applicant's experience was similar to that of a Chemical Engineering Technologist CCDO 215-118. The duties of a Chemical Engineering Technologist include: testing equipment and apparatus for chemical engineering processes, evaluating technical and economical feasibility of modifying existing chemical-engineering equipment in plant or replacing it with new equipment, verifying instrument accuracy by calibrating instrument against known standard and supervising routine quality control operations. The applicant was assessed in that occupation.
| The applicant earned the following units of assessment: |
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Age 10
Occupational Demand 00
Specific Vocational Preparation 15
Experience 06
Arranged Employment 00
Education 15
English 06
French 00
Personal Suitability 05
Total 65
[11] Subsection 11(2) of the Immigration Regulations prohibits a visa officer from issuing a visa to an immigrant if that immigrant fails to earn at least one unit of assessment for occupational demand. At the time, there was no occupational demand for Chemical Engineering Technologists. Therefore, the visa officer refused the application.
[12] The applicant alleges that the visa officer decided that she did not qualify as an Engineer based upon the Chinese classification and designation system for Engineers, instead of relying on the CCDO or the NOC.
[13] This allegation is unfounded. It is clear from the visa officer's affidavit that she has assessed the applicant in light of her experience in her employment at the Fushun First Petroleum Refinery. There is no indication the visa officer denied to assess the applicant as an engineer, just because she did not earn the title yet in China. On the contrary: the visa officer first evaluated the applicant as a Petroleum Engineer, CCDO 2154-114. The profession requires on-site experience, which the applicant does not have. Ms. Ching also examined whether the applicant's qualifications were similar to the duties of a Chemical Engineer, CCDO 2142-118, but determined that her experience was too limited in scope and range to qualify.
[14] The applicant then argues that the visa officer ought to have assessed her under alternate occupations which were inherent to her experience. For instance, she should have assessed her in the following CCDO and NOC occupations:
| Quality Control Engineer - CCDO 2145-138 |
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| Industrial Engineer, General - CCDO 2145-110 |
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| Industrial and Manufacturing Engineer - NOC 2141 |
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| Chemical Engineer - NOC 2134 |
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[15] Counsel for the respondent argues that a visa officer does not have to assess an applicant in another occupation, even if it appears that applicant might have qualification for that occupation, unless the applicant states the occupation in the context of his or her application.
[16] In Man v. Canada (M.E.I.) (January 19, 1993) T-2351-91, Jerome A.C.J. was willing to take that extra step. He wrote:
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The visa officer must, pursuant to the law and to a duty of fairness, address not only the intended occupation indicated by the applicant, but also alternate occupations for which the applicant is qualified and to which the applicant's experience may apply. |
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[17] Several other cases hold that a visa officer is bound to consider the applicant under every occupation he or she designates in his or her application, but also to assess alternate occupations inherent in the applicant"s work experience1. In the present case, the visa officer assessed the applicant in her listed occupations. There remains to determine whether a particular occupation is inherent to her work experience. The work experience of the applicant was clearly related to quality control. The definition of Quality Control Engineer, CCDO 2145-138 reads as follows:
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Plans and recommends program for development, application and maintenance of quality-control standards for processing materials into finished materials products: |
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Devises quality-control methods for production line staff and other groups, and develops procedures for inspecting, testing and evaluating new materials and finished products to ensure adherence to engineering specifications. Assist engineering and sales staff in determining standards for new and existing products. Supervises technologists and technicians engaged in measuring and testing products and tabulating quality and reliability data. Compiles and writes training material and conducts training sessions on quality-control methods. |
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[18] I am of the view that the visa officer should have assessed the applicant also in this profession, and possibly other related professions.
[19] It appears the visa officer refused to assess the applicant in other occupations because she had not obtained her official title of Engineer in China at the time of the interview. Ms. Ching states in her affidavit:
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Rather, my comments were to the effect that she was an assistant engineer and that she had not yet obtained the qualification as an engineer in China. I mentioned that one needed a licence to practice as a professional engineer in Canada. I suggested that the applicant could apply again after she had gained more experience in other areas as an engineer. |
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[20] Whether the applicant had obtained the official title of engineer in China was not relevant. According to a CCPE document, no one can practice the profession of engineer in Canada without a license. Non-licensed engineers may work as engineers only if a licensed professional engineer takes responsibility for the work. To obtain a license, one must be a Canadian citizen or landed immigrant: it is not possible to become licensed before immigrating to Canada. The other requirements include a bachelor's degree in engineering and the completion of two to four years of engineering work experience, 12 months of which must be in Canada to ensure that the candidate is familiar with Canadian codes and standards.
[21] The Immigration Act and Regulations specifically state that it is the definition system contained in the CCDO and the NOC which shall be referred to in the assessment of applications for immigration to Canada. A visa officer is bound by the CCDO (or NOC) definitions2. Despite not having obtained the official title, the applicant could and should have been evaluated under other occupations related to engineering. The CCPE has already favourably assessed her academic qualifications. Even if the applicant possessed the title of Engineer in China, she would still not be eligible to obtain an engineering license in a Canadian province until she completed one year of work in Canada.
[22] The application is allowed and the matter remitted for redetermination by a different visa officer.
(Sgd.) "Paul Rouleau"
Judge
Vancouver, British Columbia
30 July 1999
[23] FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: July 29, 1999
COURT NO.: IMM-2000-98
STYLE OF CAUSE: Xiao Mei Zou
v.
| Minister of Citizenship and Immigration |
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF ROULEAU J.
dated July 30, 1999
APPEARANCES:
| Mr. Doug Page for the Applicant |
| Ms. Helen Park for the Respondent |
SOLICITORS OF RECORD:
| Mr. Doug Page for the Applicant |
Vancouver, BC
| Mr. Morris Rosenberg for the Respondent |
Deputy Attorney General
of Canada
__________________
1 See Cai v. Canada (M.E.I.) (January 17, 1997) IMM-883-96; Samolenko v. Canada (M.C.I.) (July 28, 1997) IMM-4141-96.
2 Haughton v. Canada (M.C.I.) (1996), 34 Imm.L.R. (2d) 284.
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