Date : 19990525
Docket: IMM-1599-98
BETWEEN:
XIAO GUANG WU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
[1] The applicant seeks judicial review of the decision of a visa officer refusing his application for permanent residence in Canada.
[2] On January 13, 1997, the applicant applied for permanent residence in the independent category as a systems-software programmer under the Canadian Classification and Dictionary of
Occupations ("CCDO").
[3] In her letter of refusal, the visa officer indicated that she had determined, on the basis of the applicant's experience, that he was not qualified in the occupation of a systems-software
programmer. She also assessed the applicant in an occupation in the CCDO in which he had
experience, namely a computer consultant. The applicant was awarded 63 units of assessment.
Given his failure to meet the minimum required 70 units of assessment under a CCDO category,
the visa officer assessed the application under the new NOC system, and determined that the
applicant did not meet the necessary requirements.
[4] In her affidavit, the visa officer explained in greater detail her assessment of the application under the NOC system. In assessing the application under that system, the visa officer determined that the applicant qualified for selection in the alternate occupation of "technical sales specialists, wholesale trade (software sales representative)". However, when assessed in that occupation, he earned 63 units of assessment. As a result, he did not meet the selection criteria for the issuance of a visa.
[5] The visa officer further indicated in her affidavit that she did not assess the applicant in the occupation of "computer systems analysts" under the NOC system. Her rationale for not assessing the applicant in that category was as follows:
| I did not assess the applicant in this occupation because, as I had determined that the applicant did not qualify as a Systems-Software Programmer, I also did not believe that he qualified for selection as a Systems Analyst, under either the CCDO or the NOC definitions, as these occupations require experience as a programmer or experience in designing computer systems. The NOC occupation code number 2162 (computer systems analyst) also includes job duties such as writing requirement specifications for computer programs and testing and implementing computer systems, which are job duties I found the applicant had not performed. |
[6] In the NOC system, code number 2162 "computer systems analysts" contains "various titles classified in this unit group", including the occupation of computer consultant. The description of the occupation of "computer systems analysts" and the main duties are as follows:
| 2162 Computer Systems Analysts |
| Computer Systems Analysts analyze information processing or computation needs; design computer systems which provide solutions to these problems or perform the needed computations; analyze databases; and supervise computer programmers. Computer Systems Analysts are employed in computer consulting firms and in computer systems units throughout the private and public sectors. |
| Examples of titles classified in this unit group ....Computer consultant... |
| Main duties |
| Computer Systems Analysts perform some or all of the following duties: |
| . Confer with clients regarding the nature of the information processing or computation needs a computer program is to address |
| . Analyze these needs into related components which can be solved through the application of computer technology |
| . Write requirement specifications for computer programs, identifying the steps in the program and the algorithms to be employed |
| . Communicate program specifications to computer programmers |
| . Test and implement computer programs and provide user training |
| . Plan and implement computer security systems for database access control |
| . Analyze and develop database directories and generate and maintain databases |
| . Analyze databases |
| . May supervise computer programmers or other systems analysts or serve as project leaders for particular systems projects. |
[7] Counsel for the applicant submitted, among other things, that the visa officer erred by refusing to assess the applicant in the category "computer systems analysts" under the NOC system. I agree with that submission. In my opinion, the visa officer was required by the duty of fairness to assess the applicant not only in his intended occupation, but also in "...alternate occupations for which the applicant is qualified and to which [his] experience may apply" [See Man v. M.E.I. (1993), 59 F.T.R. 282 at 289; Nicolae v. Canada (Secretary of State) (1995), 29 Imm. L.R. (2d) 148 at 153 (F.C.T.D.); Gaffney v. M.E.I. (1991), 12 Imm.L.R. (2d) 185 at 189 (F.C.A.)]. The evidence before the visa officer indicated that the applicant had extensive education and experience in the computer field, despite his lack of experience in programming and in designing software and systems. A review of the description of "computer systems analysts" in the NOC system reveals that the applicant appears to meet many of the requirements and has experience in performing many of the duties. However, the visa officer did not assess him in that alternate occupation on the basis that it required "experience as a programmer or experience in designing computer systems". Nothing in the description of "computer systems analysts" in the NOC system requires "experience as a programmer", as indicated by the visa officer. Furthermore, the description of that occupation indicates that not all specified duties are mandatory, but rather that "some or all" of the duties are required. The evidence before the visa officer arguably indicates that the applicant meets all of the specified requirements, save and except that pertaining to the design of software. He also appears to have performed many of the duties outlined in the description. As a matter of fairness, the visa officer therefore ought to have conducted an assessment to determine whether the applicant qualified in that alternate occupation. In the circumstances, I have concluded that the visa officer's refusal to assess the applicant in the alternate occupation of "computer systems analysts" under the NOC system constitutes a breach of the duty of fairness.
[8] The application for judicial review is allowed. The decision of the visa officer is quashed and the matter is remitted to a different visa officer for redetermination.
| D. McGillis |
| _________________________ |
| Judge |
OTTAWA
May 25, 1999