Date: 19990827
Docket: IMM-512-99
BETWEEN:
JIAN CHUO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDERS
MULDOON, J.
[1] The applicant seeks judicial review of the decision of Donald Barr, Vice Consul at the Canadian Consulate General's office, Hong Kong, of December 18, 1998, wherein he refused the applicant's application for permanent residence in Canada. The applicant seeks an order quashing that decision and asks that the matter be sent back to a different visa officer for redetermination.
Background
[2] The applicant, Jian Chuo, is a 36 year old citizen of China. She submitted an application for permanent residence under the Independent category as a computer programmer on February 16, 1998.
[3] The applicant graduated from Beijing Chong Wen District Workers' University with a diploma in computer software in 1990. She has worked at Beijing Praxair, an oxygen plant where she managed cylinders of gas, since 1992, and she describes that job as being that of computer programmer on her application for permanent residence.
[4] She was interviewed in Hong Kong on November 23, 1998. The applicant's counsel characterized it orally as "a perfunctory interview". The visa officer assessed the applicant in the occupation of computer programmer, which carries the classification number 2163 under the National Occupational Classification ("NOC") system. Based on what transpired at the interview, the visa officer concluded that the applicant had no experience in this occupation, and he assessed her under NOC 1421, computer operator. She earned only 49 units of assessment and failed to attain the required minimum 70 units. Accordingly, the visa officer denied the applicant's application.
[5] During the interview, the visa officer raised concerns about the applicant's experience as a computer programmer. The visa officer noted that while the applicant had studied C language at school, she had no practical experience with it despite the fact that it has, as the visa officer put it in his CAIPS notes, "developed into being an industry standard and the foundation language of many modern computer programming languages and applications" (certified tribunal record, p. 48). The visa officer went on to note:
| I have asked the applicant why she believes she has the experience of a programmer if she has never programmed using this foundation language. The applicant replies that her sole and exclusive experience as a programmer is in the use of Fox-Base. The applicant is unable to explain object oriented programming and she is unfamiliar with Boolean logic. Both of these terms relate to fundamental programming concepts and the fact that the applicant is unable to explain them is indicative of a lack of knowledge and experience as a programmer. The NOC states that programmers are employed in computer software and consulting firms and in programming units throughout the private and public sectors. I have asked the applicant why an oxygen plant, not being a company active in the computer field, but rather in the business of selling gases, would have need of a full time computer programmer. The applicant has responded, to manage the cylinders of gas. I have determined that the applicant's experience with computers has not been in a computer programming unit of a software or consulting firm, but in an administration office of an industrial gas plant. I have considered this employment setting in relation to the probable need for a full time computer programmer at a level of sophistication contemplate [sic] by the NOC definition of computer programmer, and determined that the programming demands of managing the gas cylinders would not be commensurate with the work performed by a computer programmer. This conclusion is consistent with the applicant's statement that she has no experience with programming with C language, neither has she experience with sybase, Unix, Powerbuilder, or Visual basic. All programming tools typical of computer programming. |
Applicant's Position
[6] In her affidavit, the applicant states that the visa officer failed to ask her any questions regarding her level of knowledge of C language, nor did he question her about her other duties as a computer programmer. The applicant submits that the visa officer did not question her with regard to three of the four main duties set out in NOC 2163. She contends that he questioned her only insofar as the first main duty is concerned.
[7] The applicant submits that the visa officer fettered his discretion by restricting the places where a computer programmer can be employed so as to exclude administrative offices of commercial enterprises. The applicant argues that what the visa officer did was analogous to determining that a commercial enterprise not active in the computer field can never have any need for a full time computer programmer, a conclusion that is simply "absurd".
Respondent's Position
[8] The respondent submits that the visa officer's conclusion that the applicant had no experience as a computer programmer was based on information provided by the applicant during the interview. The respondent contends that the visa officer provided the applicant with the opportunity to elaborate on her experience as a computer programmer when he asked her, why does a company that sells gas need a full time programmer on staff?
[9] The respondent argues that the applicant is improperly attempting to clarify or supplement the evidence she gave the visa officer through her affidavit, and as such she cannot rely on it in her application for judicial review.
[10] Finally, the respondent maintains that when a person seeks to come into Canada, the burden of establishing eligibility to do so rests with that person.
Issues
[11] The visa officer's assessment of the applicant as a computer operator is not at issue in this judicial review application. Rather, it is the manner in which the visa officer assessed the applicant as a computer programmer which is being challenged. The issue to be decided is whether the visa officer erred in concluding that the applicant did not have the requisite experience to work as a computer programmer.
Analysis
[12] In Prasad v. Canada (MCI), (1995) 34 Imm.L.R. (2d) 91 (F.C.T.D.), this Court is reported as having stated, at p. 98, in paragraph 10:
| The onus is on the applicant to satisfy the visa officer fully of all of the positive ingredients in the applicant's application. It is not for the visa officer to wait and offer the applicant a second, or several opportunities to satisfy the visa officer of the necessary points which the applicant may have overlooked. The visa officer exhibited no error of law, egregious error of fact, nor yet any unfairness on this record. One must remind oneself that even if the Court might have come to a different conclusion, the purpose of these proceedings is to determine whether the visa officer went off the rails according to the classical criteria for successful judicial review. |
[13] Thus, it is well establish in the jurisprudence that the onus rests on the applicant to fully satisfy the visa officer of the existence of all of the positive elements in her application. The ensuing decision by the visa officer is accorded considerable curial deference: Hajaraiwala v. Canada (MEI), [1989] 2 F.C. 79 (T.D.). A reviewing court cannot interfere with the visa officer's exercise of statutory discretion when it was so exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance was not placed on irrelevant or extraneous considerations: Maple Lodge Farms Ltd., [1982] 2 S.C.R. 2.
[14] The visa officer must, however, raise any concerns he may have regarding the applicant's application and provide the applicant with the opportunity to respond to and address those concerns. The visa officer is not required to go any further than that and essentially make the applicant's presentation for her.
[15] In the case at bar, the applicant contends that the visa officer did not question her in regard to certain duties relating to computer programmers. However, it does not appear that the applicant presented any evidence at the interview to show that she meets the definition of computer programmer. As well, the visa officer did give the applicant the opportunity to elaborate on her work experience, when he asked her why Praxair required a full-time computer programmer.
[16] Determining the qualification of an applicant is a matter of fact, and unless it is patently unreasonable, should not be interfered with or disturbed by the reviewing court. The applicant did not present any evidence to the visa officer to the effect that she satisfied the occupational requirements, so how can the visa officer's subsequent finding be termed patently unreasonable?
[17] The visa officer's conclusion was reasonable and open to him based on the evidence before him. His conclusion that the applicant's experience is more in line with that of an administrative officer in a commercial gas company was also open to him based on the record. The visa officer does not appear to have erred so as to warrant this Court's intervention. This application is dismissed. There is no question to be certified.
Judge
Ottawa, Ontario
August 27, 1999