Date: 20020409
Docket: IMM-2948-01
Neutral citation: 2002 FCT 396
BETWEEN:
ZHI HUANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
INTRODUCTION
[1] Mr. Zhi Huang (the "Applicant") seeks judicial review pursuant to section 18.1(2) of the Federal Court Act, R.S.C. 1985, c.F-7, as amended, of a decision of visa officer Ayesha Rekhi (the "Visa Officer") of the Canadian Consulate General of Canada in Hong Kong. In her decision, dated May 15, 2001, the Visa Officer refused the Applicant's application for permanent residence in Canada.
FACTS
[2] The Applicant is a citizen of China. He applied for permanent residence in Canada in the "independent" category as a computer programmer. On July 8, 1999, he submitted his application to the Consulate in Hong Kong.
[3] On May 15, 2001, the Applicant was interviewed by the Visa Officer. The interview was conducted in English without an interpreter, and the Applicant was accompanied by his wife.
[4] According to the affidavit of the Visa Officer filed in the present proceeding, she reviewed the education documents of the Applicant and expressed concern as to their bona fides. Following enquiries, she was satisfied that these education documents were legitimate.
[5] In the course of assessing the Applicant's educational background, the Visa Officer questioned him about the courses he had taken and about his employment, duties and responsibilities. She was not satisfied that the Applicant understood the concepts he described and advised him that she had concern about his education and experience.
[6] The Visa Officer determined, on the basis of the Applicant's responses to her questions and her opinion that he lacked understanding of the technical language he was using, that he had insufficient experience in his intended occupation. She awarded him 0 units of assessment under the experience factor.
[7] She also concluded that the Applicant did not perform a substantial number of the main duties set out in the National Occupational Classification ("NOC") 2163 ("NOC 2163"). Accordingly, she awarded 0 units of assessment under occupational experience.
[8] The Visa Officer advised the Applicant at the conclusion of his interview that his application would be refused. She explained the refusal was based on her assessment of the information he provided at the interview and advised that she was not satisfied that he was experienced in his intended occupation of computer programmer.
[9] This negative decision was confirmed in a letter sent out by the Visa Officer on May 15, 2001.
APPLICANT'S SUBMISSIONS
[10] The Applicant submits that none of the main duties described for computer programmer in the NOC are mandatory or essential. He argues that he provided evidence to the Visa Officer that he performed a substantial number of the described duties including writing programmes, debugging computers and implementing software.
[11] The Applicant argues that the Visa Officer did not use a substantive test to determine his suitability as a computer programmer and says that in the absence of such test and in the absence of any indication that his answers to her were clearly wrong, it was unreasonable for her to conclude that he was inexperienced as a computer programmer.
[12] The Applicant further argues that the Visa Officer failed to advise him of her concern in such a way that would have provided him a reasonable opportunity to respond. He claims that this is a breach of procedural fairness.
RESPONDENT'S SUBMISSIONS
[13] The Respondent initially argues that the decision of the Visa Officer is entitled to high degree deference since it involves the exercise of discretion by a statutory authority. The decision should stand unless there is an error of law apparent on the face of the record or a breach of the duty of fairness appropriate to the exercise of that discretion. In this regard, the Respondent relies on Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at pages 7 - 8.
[14] The Respondent then submits that the question of whether or not the Applicant has qualifications or experience in the occupation for which he has applied, is a matter of fact. Again, deference should be given to the Visa Officer in this regard.
[15] Next, the Respondent submits that the burden of establishing eligibility to immigrate to Canada rests with the Applicant and refers to the Immigration Act, R.S.C. 1985, c. I-2, as amended, section 8. The Applicant failed to meet that burden.
[16] The Respondent then argues that the Visa Officer's assessment was reasonable in light of her evaluation of the Applicant's answers. The Respondent further submits there was no duty on the Visa Officer to advise the Applicant of concern which she might have in assessing his application.
[17] In any event, the Respondent says the Visa Officer advised the Applicant of her concern and gave him the opportunity to respond on two occasions.
ISSUES
[18] Two issues arise from this application:
(i) Did the Visa Officer properly assess the Applicant's experience?
(ii) Did the Visa Officer fail to advise the Applicant of her concern about his experience?
ANALYSIS
[19] The standard of review for discretionary decision of a visa officer remains one of deference. The test stated in Maple Lodge Farms Ltd., supra, is as follows:
|
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the 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. |
[20] This test has not been displaced by Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, in the absence of consideration of humanitarian and compassionate grounds; see Liu v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 251.
[21] It is established that whether or not an applicant has the experience or qualifications in the occupation for which he seeks admission to Canada is a matter for fact to be determined by the visa officer. In this regard, I refer to Lim v. Minister of Employment and Immigration (1991), 121 N.R. 241 (F.C.T.D.).
[22] It is equally well-established that the Applicant bears the onus of proving that he meets the selection criteria for entering into Canada; see Xin v. Canada (Minister of Citizenship and Immigration), [2001] FCT 362, [2001] F.C.J. No. 587 (F.C.T.D.) (QL).
[23] The Visa Officer, on the basis of her interview with the Applicant, was not satisfied with the answers he provided to her enquiries about his work, experience and understanding of technical language. Despite the able submissions of counsel for the Applicant, I am bound to follow that line of authority which recognises that deference is due to findings made by a visa officer following an interview with a prospective immigrant.
[24] There is nothing on the record to show that the Visa Officer erred in her assessment of the Applicant's understanding of the technical language involved in his intended occupation, nor is there anything to show that she was wrong in her assessment of his experience.
[25] This is not a question of assessing the Applicant's proficiency in his intended occupation, as discussed in Chen v. Canada (Minister of Citizenship and Immigration) (2000), 190 F.T.R. 260.
[26] As for the alleged lack of procedural fairness resulting from the failure of the Visa Officer to give the Applicant an opportunity to answer her concern, the affidavit of the Visa Officer states that she did ask the Applicant, on two occasions, if he could provide further information to answer her concerns. This response, although minimal, was appropriate.
[27] In the circumstances, there is no basis upon which this Court can intervene in the decision under review. The application for judicial review is dismissed.
[28] Counsel advised there is no question for certification.
ORDER
[29] The application for judicial review is dismissed.
"E. Heneghan"
____________________________
J.F.C.C.
Ottawa, Ontario
April 9, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2948-01
STYLE OF CAUSE: Zhi Huang v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 3, 2002
REASONS FOR ORDER AND ORDER OF THE COURT BY: Heneghan J.
DATED: April 9, 2002
APPEARANCES:
Dennis Tanack FOR APPLICANT
Emilia Pech FOR RESPONDENT
SOLICITORS OF RECORD:
Dennis Tanack FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia