Date: 20000821
Docket: IMM-2569-99
Halifax, Nova Scotia, this 21st day of August, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
JIN ZU MING
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
Factual Background
[1] This is an application for judicial review of a decision of the visa officer rendered April 20, 1999, wherein the applicant was denied an immigrant visa as a member of the independent class.
[2] The applicant, Mr. Ming, applied for an immigrant visa at the Canadian Embassy in Hong Kong in May, 1998 and requested assessment in the occupation of Financial Investment Analyst (NOC 1112). The applicant"s wife and son were listed as accompanying dependants.
[3] The applicant was subsequently invited to attend a personal interview which was conducted on April 20, 1999. At the interview, the visa officer questioned the applicant about his education and about his job duties and the various pieces of documentation that the applicant had submitted with his application.
[4] The applicant indicated that he had completed both a Bachelors and Masters degree in economics. He had studied international finance, monetary theory, international trade as well as finance, accounting and statistics.
[5] The applicant"s work experience included work at a bank, where he analyzed financial data and prepared feasibility reports related to real estate investments. During the most recent seven year period, he worked at a state owned travel agency where he developed investment plans and made recommendations for investment in real estate projects and occasionally in the stock market. For the most part, the duties related to real estate investment in the travel and tourism industry, with the applicant making investment recommendations. The applicant had completed no on the job training or any industry courses.
[6] The visa officer determined that the applicant did not meet the requirements for employment as an Investment Analyst. She, however, felt that the applicant was qualified as a Financial Planner and assessed him in this occupation, giving him full points for experience. But as the applicant did not receive sufficient units of assessment, the visa officer refused the issuance of a visa.
[7] The refusal letter stated, in relevant part, as follows:
| I have assessed you in the occupation Financial Investment Analyst. However, based on your limited training and working experience, you were determined not to qualify to undertake that occupation. |
| I have assessed you in the occupation Financial Planner, for which you earned the following units of assessment: |
| Age 10 |
| Occupational Demand 03 |
| Education/Training Factor 07 |
| Experience 04 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 16 |
| English 08 |
| French 00 |
| Personal Suitability 06 |
| TOTAL 62 |
[8] The record does not contain an assessment of the applicant in the occupation of a Financial Investment Analyst, his intended occupation in Canada.
Issue
[9] Did the visa officer make a reviewable error in dealing with the applicant"s application?
Applicant"s Argument
[10] As a preliminary issue, the applicant argues that the CAIPS notes and handwritten notes cannot be considered as they were not submitted with an affidavit sworn by the visa officer.
[11] The applicant further argues that the visa officer imported requirements into the occupation of Financial Analyst that are not in fact in the NOC for that occupation. Specifically, the visa officer is alleged to have erred in law and fettered her discretion by finding that the NOC for Investment Analysts requires applications to have had on the job training and requires an analyst to advise clients with stock market portfolios.
[12] The applicant finally argues that the visa officer breached the duty of fairness by failing to allow the applicant the opportunity to respond to the concerns the visa officer had with respect to the applicant"s application.
Respondent"s Argument
[13] The respondent argues that the CAIPS notes can be relied upon and that there is no requirement on the respondent to file any affidavit of any kind in these proceedings.
[14] The respondent argues that the applicant was not in fact qualified as a Financial Analyst, in that he did not have the education that was "usually required" and there were no significant factors in the applicant"s file to indicate that the normal requirement should be displaced. The respondent argues that the material does not evidence that the visa officer imported job requirements which are not in the NOC classification.
[15] The respondent believes that the applicant had an opportunity to respond to the concerns of the visa officer.
Analysis and Decision
[16] The decisions of this Court state that a visa officer must carry out an assessment in an intended occupation unless the applicant clearly does not meet one of the requirements. In this case, the visa officer states that she assessed the applicant in his intended occupation, but because of his limited training and experience, he was not qualified for that position. In fact, the "assessment" was not completed, but was stopped when the visa officer made this determination.
[17] The visa officer does not show the summary of the units of assessment for the occupation of Financial Investment Analyst, but only gives such summary for the position of Financial Planner.
[18] According to NOC 1112, Financial and Investment Analysts perform some or all of the following duties:
| ["] collect financial and investment information about companies, stocks, bonds and other investments using daily stock and bond reports, economic forecasts, trading reports, economic forecasts, trading volumes, financial periodicals, securities manuals, company financial statements and other financial reports and publications |
| ["] examine and analyze financial and investment information collected, including profiles of companies, stock and bond prices, yields and future trends |
| ["] provide investment advice and recommendations to clients, senior company officials, pension fund managers, securities agents and associates |
| ["] prepare company, industry and economic outlooks, analytical reports, briefing notes and correspondence. |
The employment requirements for this position are:
A bachelor"s degree in commerce, business administration or economics AND on-the-job training and industry courses and programs are usually required.
[1] I have reviewed the requirements of NOC 1112 and I have determined that the Financial and Investment Analyst can:
. . . collect and analyze financial marketplace information such as economic forecasts, trading volumes, financial backgrounds of companies, historical performances and future trends of stocks, bonds and other investment instruments to provide financial and investment advice for their companies or their companies" clients.
As well, Financial and Investment Analysts can work for banks, as did the applicant.
[2] The applicant gave an affidavit upon which he was not cross-examined and no contradicting affidavits were filed. His affidavit shows he worked as a Financial Investment Analyst for a bank. As well, he stated in his affidavit that his employer was an investor in the Chinese stock market and he gave investment advice to his employer.
[3] The applicant also stated in his affidavit that the following questions were asked by the visa officer:
| Q. Do you have any clients in stock investment? |
| A. Our corporation is the investor in Chinese stock market. |
| Q. Do you give your advice to other clients in stock market? |
| A. No. I just gave investment advice to my employer. |
| Q. To my wife. Are you a financial investment analyst? |
| A. Yes. |
| Q. Do you speak English? |
| A. Yes. I do. |
| Q. You did not have clients in the stock market and you have no clients to give your investment advice. You are just a financial planner and not an investment analyst. You speak English well. I trust your reading and writing is fluent. I need not spend your time to test your reading and writing because even if your reading and writing is fluent you cannot meet the requirement to immigrate to Canada. This is the end of the interview. |
| [22] I am of the opinion that the visa officer made a reviewable error of law by: |
| 1. Finding that the applicant did not meet the employment requirements for the occupation of Financial Investment Analyst. This is not a case where the visa officer found that the applicant did not have any training and work experience, but that he had "limited training and working experience". I believe the applicant was entitled to be assessed in this occupation. |
| 2. Operating under the belief that the applicant needed to give advice to clients in the stock market. This is not an occupational requirement specified in the NOC. |
| [23] I would therefore grant the application of the applicant for judicial review and |
direct that the matter be remitted to a different visa officer for determination.
| [24] Based on this finding, I need not rule on the other issue raised by the applicant. |
| [25] Neither party wished to certify a question pursuant to subsection 83(1) of the |
Immigration Act, R.S.C. 1985, c. I-2.
ORDER
| [26] IT IS ORDERED that the application of the applicant for judicial review is |
allowed and the matter is remitted to a different visa officer for determination.
"John A. O"Keefe"
J.F.C.C.
Halifax, Nova Scotia
August 21, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2569-99
STYLE OF CAUSE: JIN ZU MING
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, AUGUST 10, 2000
REASONS FOR ORDER AND ORDER OF O"KEEFE J.
DATED: MONDAY, AUGUST 21, 2000
APPEARANCES:
Mr. Cecil L. Rotenberg, Q.C.
FOR APPLICANT
Mr. Ian Hicks
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Cecil L. Rotenberg, Q.C.
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
FOR APPLICANT
Deputy Attorney General of Canada
Department of Justice
Ontario Regional Office
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20000821
Docket: IMM-2569-99
BETWEEN:
JIN ZU MING
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER