Date: 20001006
Docket: IMM-2488-99
BETWEEN:
CHENG GAO LIAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review a decison of a visa officer with the Canadian Consulate General's office in Hong Kong made April 26, 1999 and communicated to the applicant April 28, 1999, which decision refused the applicant's application for permanent residence in Canada.
[2] The applicant, an interpreter, is a citizen of the People's Republic of China.
[3] This matter was first scheduled for hearing on July 6, 2000.. A few days prior to the hearing a Notice of Motion was filed on behalf of the applicant seeking leave of the Court to file additional affidavit material which consisted of a translation of the transcript of university marks obtained by the applicant from his university studies; the transcript was initially filed in the Chines language before the visa officer during his interview in Hong Kong. In the presence of counsel for the respondent the presiding Justice granted the Motion and the affidavit of one Joe Kenney dated June 29, 2000 was filed.
[4] The respondent was granted 30 days to file other material including affidavits by way of evidence in response.
[5] The matter came before me at Vancouver on October 4, 2000. At the opening counsel for the respondent submitted that the affidavit material allowed by the presiding Justice on July 6, 2000 should be set aside and not considered in my deliberation. I noted that the previous order had not been appealed nor was any material or affidavit evidence filed in reply nor was cross-examination requested.
[6] I am hereby dismissing this Motion since it is material and essential to the determination of the issues before the Court.
[7] This applicant sought to come to Canada as a permanent resident of the Independent Category as an interpreter.
[8] Counsel for the applicant submits two principle reasons why this decision of the visa officer should be set aside. He argues that the educational background of this applicant included a number of courses in interpretation and translation which were not properly evaluated or assessed by the visa officer; the title 5125-3 Translaters, Terminologists and Interpreters of the Career Handbook Component of the NOC provides that the employment requirements of this occupation include "a bachelors degree in translation or a related discipline is required, and a specialization in interpretation of the graduate level is usually required". The uncontradicted evidence of the applicant establishes that the visa officer told him during the interview that his application was being refused:
| "on the grounds that I required a degree in translation and interpretation in order to be considered to be qualified to immigrate to Canada as an interpreter that the visa officer erred in failing to give any meaning to the expression "or a related discipline" and failed to apply the correct standard of assessment." |
[9] The CAIPS notes reveal the following comments from the visa officer "reviewed NOC employment requirements for 5125-3 requires degree in translation and usually requires grad study in specialization. PI does not hold degree in translation or a related field. With degree in the English language and literature not providing sufficient education in the field: degree mainly in the English as a second language. No grad study for future professional training.".
[10] It should be noted that counsel for the respondent did not file any affidavit evidence on behalf of this visa officer either in reply to the original application record nor did the Minister file any in response to the affidavit subsequently submitted as a result of the order issued on July 6, 2000.
[11] It is evident from a review of the decision and CAIPS notes that the visa officer was not satisfied that this applicant had little background or studies in the interpretation or translation field. It is obvious to me that his work related experience was directly related to the area and the transcript of University marks support his contention that he had taken at least six semester course in the field in order to specialize or qualify as an interpreter or translator.
[12] The most recent jurisprudence in this Court suggests that under the employment requirements the visa officer was first to determine whether the applicant had a bachelor's degree in translation. If he did not, whether he had a bachelor's degree in a related discipline. Not only did the visa officer fail to look at the aspect of qualifications in the related field, he completely discounted the fact that the applicant had in fact successfully completed studies in the field while attending University.
[13] The visa officer erred in interpreting the requirement suggested a graduate degree; the NOC guideline is not as stringent as that suggested by the visa officer.
[14] For the above reasons, this application for judicial review is granted and the matter should be referred back for a redetermination by a different visa officer.
[15] Both counsel were satisfied that this is not a case for certification.
(Sgd.) "P. Rouleau"
Judge
Vancouver, British Columbia
October 6, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: IMM-2488-99 |
| STYLE OF CAUSE: Cheng Gao Liao |
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
| DATE OF HEARING: October 4, 2000 |
| REASONS FOR ORDER OF ROULEAU, J. |
| DATED: October 6, 2000 |
APPEARANCES:
| Mr. Dennis Tanack For the Applicant |
| Ms. Helen Park For the Respondent |
SOLICITORS OF RECORD:
Dennis Tanack
Barrister and Solicitor
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |