Date: 20000406
Docket: IMM-1015-99
BETWEEN:
XIAO QIANG CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| Respondent |
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review of, and for an order setting aside, a decision of a designated immigration officer at the Canadian Consulate General's office in Hong Kong, made February 4, 1999, whereby the applicant's application for permanent residence in Canada was refused.
[2] The application was heard in Vancouver on March 17, 2000 when counsel for the applicant and for the respondent Minister appeared. Decision was then reserved and after consideration of the submissions then made an order now goes allowing the application and referring the applicant's application for permanent residence back for reconsideration by a different visa officer.
[3] The applicant, a native of the People's Republic of China, made application with the assistance of an immigration consultant for permanent residence in Canada. The application was submitted to the Canadian Consulate General in Hong Kong where the applicant was subsequently interviewed. Following the interview the visa officer advised that the application was refused since he did not meet requirements for immigration to Canada in the independent category.
[4] The visa officer assigned some 59 units of assessment in relation to the various factors considered for prospective immigrants. The visa officer's letter does indicate that she assessed the applicant in relation to the occupation "mechanical engineer" NOC2132.0 which was stated in his application form as his intended occupation in Canada. The visa officer's advice was that based on his description of his experience she determined he was not qualified to undertake that occupation in Canada. She did then assess the applicant in relation to the occupation "mechanical engineering technologist", NOC2232.1 and he was assessed as having one unit for occupational demand and six units for experience.
[5] While there may have been other difficulties in the assessment of the applicant's application, only two issues were raised about the officer's decision. The first was that the officer ought to have assessed the applicant as a "biomedical engineer". By his affidavit the applicant states that he applied to come to Canada in his occupation as a bio-medical engineer, the field in which he had attained a master's degree in engineering, majoring in biomedical instrumentation and engineering, in 1990. The Canadian immigration consulting agency upon whom he relied for assistance in filing his application, completed the application form by typing the entries, including his intended occupation in Canada as a mechanical engineer. The applicant also states that when he learned at the interview that he had been put forward as a mechanical engineer he advised the visa officer he was a biomedical engineer. Some questions were asked about the nature of his employment and the visa officer concluded, according to her affidavit that the applicant confirmed that his duties included "installing, repairing and maintaining computer tomographic machines; providing training and support to technicians and customers; and testing and adjusting the calibration of the machines. The applicant confirmed that he does not need to design any parts of the machines."
[6] In her affidavit the visa officer states that she recalls the applicant confirming he wished to be assessed as a mechanical engineer, that she did not recall him objecting to such an assessment and that he did not ask to be assessed as a biomedical engineer. Nevertheless, in cross-examination on her affidavit she did acknowledge that at some point in the course of the interview it was clear to her that the applicant claimed to be a biomedical engineer. There was evidence of this in his application which noted his master's degree in engineering, and some of the questions asked in the course of the interview obviously related to his work as a biomedical engineer.
[7] It is true that the applicant did not request in his application form to be assessed as a prospective biomedical engineer in Canada. It is also clear that he did affirm that this was his occupation in the course of the interview and there was some evidence of his experience in this field and evidence of the specialization in his master's degree. In my view, in the circumstances, the visa officer had a responsibility to assess the applicant as a biomedical engineer on the basis of his training and experience. He was not so assessed.
[8] The second ground raised is that the visa officer construed the description of the main characteristics listed for a mechanical engineer strictly and literally, and implicitly so that all of the main criteria, not merely some of them, had to be encompassed in the experience of the applicant before he could meet the qualifications there set out. The visa officer, in cross-examination on her affidavit, does acknowledge that she considered all of the main duties set out in the NOC descriptions of mechanical engineers and of mechanical engineering technologists and technicians, to be essential to qualify as experienced in the occupation for which he was being assessed. Jurisprudence makes clear that it is an error for the visa officer to consider that all of the duties listed in job classifications have to be performed by applicants for immigration. The descriptions themselves say that the job performance "includes 3 some or all3 of the following duties". In Paracha v. Canada (Minister of Citizenship and Immigration) , [1999] F.C.J. No. 1282 (T.D.) Mr. Justice Pelletier, and in Bhutto v. Canada (Minister of Citizenship and Immigration, [1999] F.C.J. No. 1411 (T.D.), Madam Justice Sharlow both held that it was an error to insist that all of the duties described must be performed before one could be qualified as meeting the description for the NOC classification.
[9] In the circumstances, particularly since the applicant's principal occupation which he claims was his intended occupation to be followed in Canada, was known to the visa officer in the course of the interview and there was some evidence of his experience in relation to that occupation, in my opinion he ought to have been assessed in relation to that NOC occupation before his application was refused.
[10] For these reasons an order goes allowing the application for judicial review, setting aside the decision of the visa officer, and referring the applicant's application for permanent residence in Canada under the independent category for reconsideration, including consideration of his prospects to an intended occupation as a "biomedical engineer".
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
April 6, 2000.