Date: 19990224
Docket: IMM-3349-98
BETWEEN:
KAM POR PETER LOUIE LUI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN J.:
FACTS:
[1] The applicant seeks judicial review of a decision of a visa officer employed by the respondent (the "officer") dated June 3, 1998, wherein the applicant"s application for landing in Canada was refused.
VISA OFFICER"S DECISION:
[2] The officer assessed the application, made in the Independent category, in the occupation of Supervisor, Electronic Technicians, NOC 2242. The application failed to earn the minimum 70 units of assessment required. The officer stated that she was not satisfied that the applicant meets the employment requirements in his intended occupation of Contractors and Supervisors, Mechanic Trades (NOC 7216) per the NOC and as such, she was not able to assess him as such. She stated that there was no other occupation apparent in his application in which he or his spouse are qualified or experienced, and under which his application would be successful.
ISSUES:
[3] 1. Did the visa officer err by awarding only 10 units of assessment for education?
[4] 2. Did the visa officer err in finding that NOC 7261 did not include foremen of office machine repairers when the NOC conversion table converts the former CCDO 8580-126 Foreman of Office Machine Repairer to NOC 7216 - Contractors and Supervisors, Mechanic Trades?
[5] 3. Did the visa officer err by stating that the applicant did not meet the training requirements for foreman of office machine repairs in that he did not have a provincial trade certification?
ARGUMENT:
Applicant
[6] The applicant submits that the officer erred in failing to award him 13 units of education as opposed to 10 units under Factor 1(1)(c)(ii) of Schedule I of the Immigration Regulations. The applicant submitted that he had received a Diploma in Business Management from the Hong Kong Polytechnic University, admission to which program required standard university entry qualification, this being Form 6 or 7.
[7] The applicant submits that he should have been assessed under CCDO 8580-126, Foreman/woman, Office-Machine Repairers, as the NOC Conversion Tables show that NOC 7216 converts into that CCDO category. The applicant relies on: Chan v. Minister (1997), IMM-506-97, as support for the proposition that the visa officer, in fairness, must assess an applicant for any alternate occupation for which the applicant is qualified.
[8] The applicant submits that the officer erred in finding that the applicant was not qualified under NOC 7216, as he had at least 10 years of full time work experience as supervisor for office machine repairmen at the time of the interview. Further, it is submitted that some of his job duties as a supervisor and manager included but were not limited to: supervising, co-ordinating and scheduling the activities of workers who repair and maintain printing machines; requisitioning materials and supplies; training or arranging for training of workers and preparing production and other reports.
[9] The applicant submits that the visa officer stated that he did not meet the training requirements for foreman of office-machine repairers in that he did not have a provincial trade certification. The applicant submits that there is no authority in the NOC to indicate that a provincial trade certificate exists for the position of foreman of office-machine repairers. The applicant submits that he has two years trainee technician apprenticeship with Jardine Office Systems, numerous related educational certificates and 8 years of technical work experience to meet the entry or training requirements for the occupation of foreman of office machine repairs.
Respondent
[10] The respondent submits that where the officer"s statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere: To v. M.E.I. (F.C.A., May 22, 1996, A-172-93).
[11] It is submitted that there is no evidence on the record that the applicant has a diploma that may lead to entrance to university in the country of study. It is submitted that the visa officer did not commit a reviewable error in failing to award the applicant thirteen points in the education category.
[12] The respondent submits that there is no evidence to suggest that the officer refused the application on the basis that the applicant did not have provincial certification in his intended occupation. It is submitted that this issue is not mentioned in the officer"s refusal letter and that in her notes, the officer comments that "provincial trade certification in a relevant trade is required" in the description of the employment category of Contractors and Supervisors, Mechanics Trades, in the NOC classification.
[13] The respondent submits that the officer assessed the applicant in the alternate occupation of Supervisor, Electronic Service Technicians, which the officer determined that the applicant was qualified to perform. It is submitted that the applicant was not awarded sufficient points to be granted landing when assessed in this alternate occupation.
ANALYSIS:
[14] Counsel for the applicant noted that there was no affidavit filed by the respondent in this matter. He presents a line of case law in which the evidentiary value of visa officer"s interview notes put into evidence in such a fashion has been discounted: Wang v. Canada (1991), 2 F.C. 165 (C.A.); Fung v. Canada (1991) 121 N.R. 263 (F.C.A.); Gaffney v. Canada (1991), 12 Imm. L.R. (2d) 185 (F.C.A.). These notes aside, I have determined that the visa officer made erroneous findings of fact without regard for the material before her in her determination of the points to be awarded the applicant in the category of education and in her determination that the applicant did not meet the employment requirements in his intended occupation of Contractors and Supervisors, Mechanic Trades (NOC 7216). As such, her decision must be set aside.
[15] The officer erred in granting the applicant only 10 points for education. The translation of the entry requirements for the diploma program which he completed (Exhibit C to the applicant"s affidavit) shows that entry may be gained with secondary school graduation and three years" employment OR university entrance qualifications or passing of the Hong Kong Advanced Level Exam with two or more years employment. Though a secondary school diploma is not obligatory as an entrance requirement, it provides one route into the program when coupled with work experience. This evidence thus suggests that the diploma completed by the applicant should be considered a "diploma ... that requires completion of a secondary school diploma referred to in subparagraph (b )(ii) as a condition of admission" and the applicant thus should have been awarded 13 points under Schedule I, Column I (1)(c )(ii).
[16] The respondent argues that the applicant"s submission with respect to the CCDO-NOC conversion tables means that in future, long after the CCDO has become a distant memory, officers will be required in considering applications for landing to have regard to this index which is simply meant as an aide during the transition period to the NOC. The conversion table is not the sole basis upon which I have determined that this officer erred. However, it is one factor which I have considered in reaching the conclusion that the officer erred in determining that the applicant did not meet the employment requirements of NOC 7216.
[17] The officer may not have viewed the applicant"s status as a foreman of office-machine repairers as constituting a "relevant trade" within the unit group of NOC 7216. However, as noted by the applicant, the CCDO to NOC Conversion Table indicates that CCDO category 858-126 (Foreman, Office-Machine Repairer), into which the applicant falls, translates into NOC 7216.
[18] The employment requirements of NOC 7216 are set out at page 29 of the Applicant"s Application Record. As noted above, the applicant had completed a program for which completion of secondary school was a pre-requisite. There was evidence before the officer with respect to the applicant"s work as a technician from 1979-88 with Jardine Office Systems which was sufficient to satisfy the employment requirement described as: "several years of experience as a qualified trades person in a relevant trade." Further, there was no evidence before the officer to suggest that provincial certification is required for office-machine repairers.
[19] Taken together, these errors establish that the officer based her decision on erroneous findings of fact that she made without regard for the material before her.
CONCLUSION:
[20] The application for judicial review is allowed, the decision of the visa officer refusing the applicant"s application for landing in Canada is quashed and the matter is referred back to another visa officer for determination. I am satisfied that this is not a case for costs to be awarded.
OTTAWA, ONTARIO
February 24, 1999. J.F.C.C.