Date: 20020528
Docket: IMM-834-01
Neutral Citation: 2002 FCT 611
Ottawa, Ontario, May 28, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
GUOMING HU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is an application under section 18.1 of the Federal Court Act for judicial review of the decision of visa officer Alain Gingras [hereinafter referred to as "visa officer"] of the Canadian Embassy in Manila, Phillippines, dated January 4, 2001 wherein the visa officer refused the applicant's application for permanent residence in Canada.
FACTS
[2] The applicant is a citizen of China born on February 19, 1975.
[3] From September 1993 to July 1997, the applicant studied at the English Department of the Tianjin Normal University and specialized in English for Business and Trade earning herself a Bachelor of Arts degree.
[4] Since her graduation, the applicant has been employed as an Interpreter and Translator for the General manager's Office of the joint venture Tianjin Jin Tak Garments Company.
[5] In addition, since December 1997, the applicant has been employed on a part-time basis as an interpreter and translator with the Yacht and Secretaries Company which is a certified interpreting and translation firm.
[6] The applicant submitted her application for permanent residence in Canada in the independent category, under the National Occupational Classification of an Interpreter [NOC 5125.3] and Translator [NOC 5125.1].
[7] The application was received at the Canadian Embassy in Manila on February 23, 2000.
[8] The visa officer refused the application for permanent residence by way of letter. There was no interview conducted in this matter since the applicant fell short of the minimum of 60 units of assessment.
ISSUES
[9] The issues of the case are:
(a) Did the visa officer err in assessing the applicant's Bachelor of Arts degree in English for Business and Trade?
(b) Did the visa officer violate the principles of natural justice and procedural fairness by not indicating in his refusal letter that he assessed the applicant as a Translator [NOC 5125.1]?
STANDARD OF REVIEW
[10] This Court has held that the decision of the visa officer is discretionary in nature. The question of whether the applicant has the qualifications or experience in the occupation under which the applicant has applied is a factual one. The fact that the Court may have reached a different conclusion on the evidence does not permit the Court to
intervene in a discretionary decision lightly. Therefore, it would seem that the standard of review for a visa officer's decision is that of patently unreasonable.
(a) Did the visa officer err in assessing the applicant's Bachelor of Arts degree in English for Business and Trade?
[11] No, the visa officer did not err in assessing the applicant's Bachelor of Arts degree in English for Business and Trade.
[12] The Employment Requirements listed under the NOC 5125 occupational descriptions read as follows: "a bachelor's degree in translation or a related discipline is required, and specialization in interpretation, translation and terminology at the graduate level is usually required." The applicant holds a Bachelor of Arts degree and majored in English for Business and Trade. This is not a Bachelor's degree in translation.
Related discipline
[13] Unlike the visa officer in Woo v. MCI, [2000] F.C.J. No. 2085 (F.C.T.D.), the visa officer in the present matter turned his mind in order to determine whether the applicant's degree was to be considered "a bachelor's degree in a related discipline".
[14] The case of Chen v. MCI [2000] F.C.J. No. 613 (F.C.T.D.) is instructive. In Chen, supra, I was faced with an applicant who held a Bachelor's degree in English and had applied for permanent residence in the independent category under the occupation of Interpreter, claiming to have worked in that field for seven years. In regards to the applicant's Bachelor's degree, I held:
| [para 19] In the present case, since the applicant did not have a bachelor's degree in translation, the visa officer turned her mind to determine whether the applicant's English degree is a related discipline. In order to do so, she examined the courses taken. The visa officer noted that only two courses taken were related to the field of translation and in her opinion, they were not sufficient to make the English degree a related discipline to translation.
[para 20] In my view, the visa officer correctly interpreted the employment requirement. |
[15] From his CAIPS (Computer Assisted Immigration Program System) notes it is evident that the visa officer turned his mind to contemplate the nature of the applicant's Bachelor's degree. To do so, he examined the courses the applicant had taken at Tianjin Normal University. At page 3 of the certified record, it can be read:
|
HER DEGREE IS ENGLISH FOR BUSINESS AND TRADE. IT DOES INCLUDE A FEW TRANSLATION AND INTERPRETER COURSES BUT IS NOT A DEGREE IN TRANSLATION AS REQUIRED (NOT USUALLY) BY THE NOC. HER DEGREE IS A VARIANT OF THE ENGLIS _[SIC] AS A SECOND LANGUAGE TYPE. TOO FAR REMOVED FROM A TRANSLATION DEGREE TO MEET THE EMPLOYMENT REQUIREMENTS. |
[16] It is clear from the except above that the visa officer reviewed the courses listed in the Student's Work Record provided to him by the applicant in order to determine whether her degree was in a "related discipline". Of the twenty-nine (29) courses that were listed, only four (4) courses directly related to translation or interpretation. These were: Translation, Translation (English to Chinese), Translation (Chinese to English) and Oral Interpretation. The remainder of the courses in the applicant's curriculum included such courses as Physical Education, Grammar, Introduction to Chinese Culture, Contemporary Politics to name a few. The applicant however argues that there were thirteen (13) other courses that she studied which were directly related to translation and interpretation. The thirteen (13) courses identified as in a "related discipline" are: Intensive Reading, Extensive Reading, Oral English, Practical Writing, Listening Comprehension, English Writing, General Training Visual, Audio and Oral English, Oral English, The Second Foreign Language, Newspapers and Periodicals of Britain and USA, International Trade and Finance, English for Business and Trade, Correspondence for International Business and Trade. The applicant however, has failed to demonstrate to this Court how these thirteen (13) courses were related to the occupation of interpreter or translator.
[17] In Chen, supra I was faced with the meaning of "related discipline":
| [para 16] A translation degree holds many courses of translation ranging from the basic to the advanced level, as well as specialized translation, in sign language or in the field of business, politics, or law. Also, there are different methods of interpretation: simultaneous, consecutive, whispering. A translation degree requires knowledge of different languages as well.
[para 17] The Webster dictionary defines "related" as "connected by reason of an established or discoverable relation"; discipline is defined as "a field of study".
[para 18] In determining if the English degree is connected by reason of an established or discoverable relationship to a translation degree, the visa officer must necessarily determine if the courses taken are somehow connected to the occupation of interpreter or translator. This is not to say that the related discipline must be the equivalent of the translation field, or that the courses taken must all be the same. There must be however, a nexus between the translation degree and the applicant's degree sufficient enough to satisfy the employment requirements in Canada. |
[18] There, the visa officer determined that the applicant's Bachelor's degree was not in a "related discipline" to the occupation of interpreter or translator, but instead was more comparable to English as a second language.
[19] Consequently, the visa officer found that the applicant did not meet the Employment Requirements in the NOC because she did not have a Bachelor's degree in translation or in a related discipline and thus, was correctly awarded zero units of assessment for Occupation Factor. I subscribe to the same finding.
(b) Did the visa officer violate the principles of natural justice and procedural fairness by not indicating in his refusal letter that he assessed the applicant as a Translator [NOC 5125.1]?
[20] No, the visa officer did not violate the principles of natural justice and procedural fairness by not indicating in his refusal letter that he assessed the applicant as a Translator [NOC 5125.1].
[21] The applicant in her application had requested to be assessed for both Interpreter [NOC 5125.3] and Translator [NOC 5125.1]_occupations. However, the visa officer's refusal letter only made mention of the occupation of Interpreter [NOC 5125.3].
[22] In Zhou v. MCI, [1998] F.C.J. No. 271 (F.C.T.D.), Joyal J. held:
|
[para 23] [...] That is to say that whatever errors may be attributable to the Officer's disposition of the case, these do not carry enough weight to undermine the essential validity of the decision. |
[23] I am of the opinion that the applicant did not suffer any prejudice from the lack of mention of the occupation of Translator [NOC 5125.1] in the visa officer's refusal letter because, as mentioned above, the Employment Requirements are identical for all the NOC 5125 occupational descriptions, namely the requirement of a Bachelor's degree in translation or in a related discipline.
[24] Since the applicant did not satisfy the Employment Requirements for the occupation of Interpreter [NOC 5125.3], she could therefore not have satisfied it for the occupation of Translator [NOC 5125.1] either.
[25] I do not find that the visa officer violated the principles of natural justice and procedural fairness by his not mentioning the occupation of Translator [NOC 5125.1] in his refusal letter to the applicant. This error does not carry enough weight to undermine the essential validity of the decision as the outcome of the assessment of the applicant's application would be no different whether it be as an Interpreter [NOC 5125.3] or a Translator [NOC 5125.1] and so, the visa officer's assessment would not have changed.
[26] Therefore, this application for judicial review is dismissed.
[27] Neither counsel suggested question for certification.
Pierre Blais Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-834-01
STYLE OF CAUSE: GUOMING HU v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 14, 2002
REASONS FOR ORDER OF the Honourable Mr. Justice Blais :
DATED: May 28, 2002
APPEARANCES:
Mr. Rudolf Kischer FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Rudolf Kischer FOR APPLICANT
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada