Date: 19981218
Docket: IMM-120-98
BETWEEN:
SHENG-LAN LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
WETSTON J.
[1] This is an application to set aside the negative decision of a visa officer, Mr. Donald Barr, in Hong Kong. The decision was rendered on December 16, 1997. The applicant's application for permanent residence in Canada was under the independent category of executive secretary, pursuant to CCDO 4111-111. The applicant is an executive secretary employed by Minquing Electrical Porcelain General Factory at the company branch office in Hong Kong. She has been employed by this company since September, 1989.
[2] Applicant's counsel thoroughly submitted four grounds on the basis of which she argued the decision of the visa officer should be set aside. In the first place the applicant contended that the applicant received 0 units for English and that the applicant was denied fairness due to the visa officer's problems in being able to understand the applicant's submissions with respect to whether or not she met the requirements for permanent residence in Canada. In essence, the applicant contended that the visa officer had difficulty in being able to understand the applicant and should have, as a matter of procedural fairness, delayed the interview and requested the assistance of a translator. Counsel suggested that the practice in the Hong Kong office was to have employees assist in the event that a visa officer does not understand the applicant sufficiently. No evidence, however, was presented regarding this practice and the respondent noted that it should not be considered, and moreover, the onus to provide translation was on the applicant. By way of example, applicant's counsel contended that a question had to be repeated four times given the applicant's inability to understand English.
[3] Mr. Barr, the visa officer, was cross-examined on his affidavit. In his affidavit he indicated that in his assessment the applicant understood him, but that questions were often repeated several times and rephrasing was required. He concluded that the applicant spoke, read, and wrote English with difficulty and therefore was awarded 0 points for language. As I indicated during the hearing, the question was not simply a function of the number of points awarded but whether the applicant was denied fairness due to problems with a lack of understanding of her submissions. My review of the evidence suggests that while Mr. Barr had some difficulty understanding the applicant, he did appear, with some effort, to have understood her. While it may have been with difficulty, there is no suggestion that Mr. Barr was not able to consider fairly her evidence with respect to whether or not she met the requirements for landing.
[4] Secondly, the applicant contended that the visa officer erred in law in his assessment of the CCDO standard with respect to whether or not the applicant meets the training and entry requirements for the position of executive secretary. It was further submitted that the visa officer placed undue emphasis on shorthand and operating a stenotype machine. A visa officer must apply the occupational descriptions contained in the CCDO. Whether or not an applicant meets the requirements contained therein obviously requires a weighing of the evidence with respect to the applicant's experience and training.
[5] In Hussain v. Canada [1998] F.C.J. 1570 (T.D.), Evans J. notes that there are at least three differences between the occupation of an executive secretary and a secretary. Whether or not an applicant qualified under the category of executive secretary is obviously fact specific. What is clear to me is that being a secretary is invariably a condition precedent to being an executive secretary. This is because under this category, an executive secretary performs secretarial and administrative duties for office executives.
[6] The applicant suggests that Mr. Barr did not understand that her education included courses in the management of commercial enterprises. It is also argued that the visa officer did not evaluate and understand her duties as an executive/administrative secretary in China and Hong Kong.
[7] I am not satisfied that the visa officer did not properly assess the applicant in the executive secretary category. He focused on her education, her ability to do secretarial work, and her proficiency in typing. In my opinion, these are not irrelevant considerations in assessing whether or not she could fulfil the requirements of executive secretary. He did ask her questions about her secretarial training and he was not satisfied that this training met the requirements for a secretary let alone that for an executive secretary.
[8] It is clear to me that the applicant indeed may perform a number of duties of an executive secretary. However, the visa officer was not satisfied that she met the CCDO requirements applicable to a secretary nor did she have the training and entry requirements necessary to become an executive secretary. Schedule I of the Immigration Regulations specifies that the factor of Specific Vocational Preparation is:
| To be measured by the amount of formal professional, vocational, apprenticeship, in-plant, or on-the-job training specified in the Canadian Classification and Dictionary of Occupations, printed under the authority of the Minister, as necessary to acquire the information, techniques and skills required for average performance in the occupation in which the applicant is assessed under item 4. (my emphasis) |
[9] The applicant has not gained the formal vocational training required by the CCDO. As such, while the applicant is well educated and may perform at a high level, the Court has no basis to interfere with the visa officer's decision that the applicant was not an executive secretary within the meaning of the CCDO because she did not have the required formal training and could not perform certain secretarial tasks.
[10] Thirdly, the applicant argues that the visa officer erred with respect to the personal suitability of the applicant. Ms. Lam contended that Mr. Barr held certain views with respect to whether or not the business environment and work environment in publicly owned companies in the West were different from that of China. This led him to find that the applicant had little experience in job searches and would be less self-reliant in the West and thus would not easily adapt to a different environment in Canada. Counsel contends that this issue of adaptability should have been put to the applicant and to not do so was unfair. This is particularly so since her passport indicated that she did travel for what would appear to be business in Pakistan and Bangladesh, for example. The applicant relies on the decision of Hussain, supra, for the proposition that the visa officer relied on an extraneous factor [para. 29]. This case is different from Hussain, supra. In that case fairness required that the visa officer disclose information to the applicant. In my opinion, the views of the visa officer in this case simply flowed from his experience and knowledge of the business environment in China as compared to that in Canada. Accordingly, I see no basis to interfere with the visa officer's findings regarding personal suitability.
[11] Finally, counsel for the applicant took issue with respect to certain notes which were taken on WordPerfect by the visa officer and which were not part of the record. I have considered her submissions and I find that there is no merit to her contentions in this regard.
[12] The application for judicial review is dismissed. There is no question for certification.
"Howard I. Wetston"
Judge
Toronto, Ontario
December 18, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-120-98
| STYLE OF CAUSE: SHENG-LAN LIN |
and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: TUESDAY, DECEMBER 8, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: WETSTON, J.
DATED: FRIDAY, DECEMBER 18, 1998
APPEARANCES: Ms. Lam
For the Applicant
Ms. Sally Thomas
For the Respondent
SOLICITORS OF RECORD: Yeoman, Ament
Barristers & Solicitors
6549 Mississauga Road, Suite B
Mississauga, Ontario
L5N 1A6
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981218
Docket: IMM-120-98
Between:
SHENG-LAN LIN
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER