Date: 20020129
Docket: IMM-2171-00
Neutral Citation: 2002 FCT 104
BETWEEN:
XINCHEN KE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] This is an application for judicial review of the decision of Daniel Vaughan (the "visa officer") dated March 21, 2000 refusing the application of Xinchen Ke (the "applicant") for permanent residence in Canada under the independent category.
[2] This is the second time Ms. Ke's application for permanent residence has come to the Federal Court of Canada for judicial review. Visa officer Gregory Chubak refused her application in his decision dated January 28, 1999 on the ground the applicant did not meet the National Occupational Classification ("NOC") requirements for Microbiologist and Cell and Molecular Biologist. The applicant applied on March 4, 1999 for judicial review of Mr. Chubak's decision but before the matter was heard, the respondent consented to an order remitting the matter for redetermination by a different visa officer. Daniel Vaughan received the file on March 17, 2000 and rendered his negative assessment the same day. This redetermination is the decision presently under review.
Background
[3] The applicant is a citizen of China who is married with one dependant child. She has a brother living in Calgary, Alberta who is a landed immigrant and who is willing to assist the applicant on her arrival in Canada.
[4] The applicant graduated in 1991 with a five-year Bachelor of Medicine degree from the Shanghai University of Traditional Chinese Medicine ("SUTCM"). From her graduation until April of 1997, the applicant worked as a pharmacologist at Shanghai University. In April 1997, she undertook PhD studies in medical biochemistry at Shinnane Medical University in Japan. The applicant is currently completing her research requirements for that degree. Her field of research focusses on the biochemical mechanism for the formulation of cell signalling passageways.
[5] The visa officer determined the applicant did not meet the requirements for immigration to Canada upon his assessment of her in the following NOC categories: Microbiologists, NOC 2121.2, Chemists, NOC 2112, and Chinese Medical Practitioners, NOC 3232.3. The officer determined the applicant, based on her education and training, did not meet the employment requirements to undertake the occupation of Microbiologist or Cell and Molecular Biologist.
[6] The NOC states the minimum employment requirements for the occupation of Microbiologists and Cell and Molecular Biologists include a bachelor's degree in biology or a related field. The visa officer determined that the applicant's degree in medicine did not contain sufficient biology study, but focussed instead on diagnosis and treatment of illness using traditional methods, such as acupuncture, traditional herbalism, and qi gong.
[7] While the visa officer also assessed the applicant under the occupation of Chinese Medical Practitioner, NOC 3232.3, he advised her that this occupation does not appear on the General Occupations list, so she could be awarded no points under the occupation factor. Because the applicant had not completed her PhD, her post-graduate studies could not be taken into account in the assessment of points. As a consequence, the applicant was refused without an interview, pursuant to section 11(2) of the Immigration Regulations, SOR/78-172.
[8] The CAIPS notes entered by the officer on March 17, 2000 indicate as follows:
FILE REVIEWED: CONSENT AS PI WAS REFUSED FOR 0 EXP, BUT FOR REASON NOT OF EXP BUT OF FAILURE TO MEET NOC ENTRY REQTS. CONCERNS RE NOC REQUIREMENTS ALSO ARISE FROM MY REVIEW OF APPN: PI HAS COMPLETED A B.MED IN TRADITIONAL CHINESE MEDICINE. SHE DOES NOT HOLD A DEGREE IN CHEMISTRY, BIOCHEMISTRY OR A RELATED DISCIPLINE AS STATED AS REQUIRED FOR 2112 OR 2121.2, SHE DOES NOT HOLD A DEGREE IN BIOLOGY OR A RELATED DISCIPLINE STATED AS REQUIRED FOR THIS OCCN. THERE IS NO DEMAND FOR PRACTITIONERS OF TCM 3232.3. I AM NOT SATISFIED PI MEETS NOC REQUIREMENTS FOR HER INTENDED OCCUPATIONS. APPLICATION REFUSED, 0 FOR OCCUPATION FACTOR.
Issues
[9] This application raises the following two issues:
1) Was the visa officer's decision that the applicant did not have a degree in biology or a related discipline unreasonable? and;
2) Did the visa officer reach his decision in a manner that breached the duty of procedural fairness?
Was the visa officer's decision that the applicant did not have a degree in biology or a related discipline unreasonable?
[10] The applicant submitted her application for permanent residence under the NOC #2121 for Microbiologists and Cell and Molecular Biologists. She did this because the list of job titles under NOC #2121 includes Pharmacologist. The applicant believed that her training and qualifications would allow her to obtain the required number of points under the selection criteria associated with this classification to succeed in her application.
[11] The NOC Career Handbook under section 2121.2, Microbiologists and Cell and Molecular Biologists, states:
Microbiologists conduct basic and applied research to extend knowledge of living micro-organisms and to develop new practices and products related to medicine and agriculture.
[12] Under the heading "Examples of Job Titles", Pharmacologist appears among 11 others. Under "Employment Requirements" it states:
A bachelor's degree in biology or a related discipline is required for biologists.
A master's or doctoral degree in biology or a related discipline is required for employment as a research scientist in biology.
Post-doctoral research experience is usually required before employment in academic departments or research institutions.
[13] The occupational description for NOC #2121 states that microbiologists and cell and molecular biologists perform some or all of the following duties:
Conduct research into the structure, function, ecology, biotechnology and genetics of micro-organisms, including bacteria, fungi, protozoans, and algae;
Conduct research into the structure and functioning of human, animal, and plant tissues and cells;
Conduct studies into the identification, effects and control of human, plant and animal pathogens and toxins;
Conduct clinical or laboratory studies to test, evaluate and screen drugs and pharmaceuticals.
[14] The applicant acknowledges the NOC requires that Microbiologists and Cell and Molecular Biologists have a degree in biology or a related field, but takes exception to the visa officer's decision that her education does not meet this requirement.
[15] She argues the visa officer failed to give proper weight to the courses she took during her five year medical program, her many years experience as a pharmacologist, and the courses she has undertaken as part of her PhD studies. The applicant states the visa officer unfairly focussed on the course content of her last years of undergraduate work, when she was working towards her specialization in Traditional Chinese Medicine.
[16] The respondent counters that it is the applicant's burden to prove to the visa officer's satisfaction that she meets the requirements set out in the NOC. In both his affidavit and on cross-examination, the visa officer swears that he considered the applicant's transcripts and turned his mind to the biological components of her course of study with a view to determining if her medical degree was a degree in a field related to biology.
[17] The respondent argues the visa officer's decision was reasonably open to him and relies on Yuan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 252, where Reed J. states:
The visa officer assessed the applicant's qualifications on the basis of the documentation that the applicant presented to her, and on the basis of the visa officer's knowledge of the status of certificates and degrees given by Chinese educational institutions. I am not persuaded that the visa officer is required to accept an applicant's assertion that her qualifications are the equivalent of those required, merely because the applicant says it is. If an applicant wishes to rely on equivalency, I think it is incumbent on that person to bring objective evidence to the interview to establish the equivalency, or to ask for time in order to obtain it. On the basis of the record as it exists, I could not conclude that the visa officer made an unreasonable decision.
[18] With respect to the applicant's degree, the officer states that he examined the transcript and concluded that the applicant had not completed enough biology courses in the "higher years" for the degree to count as a degree in biology or a related field.
[19] Throughout his affidavit and the cross-examination, the officer refers to the applicant's education as a degree in Traditional Chinese Medicine. This characterization is critical to the resolution of the issues on this application.
[20] Therefore, because an accurate characterization of the applicant's degree is central to this application, I will describe the evidence presented to the officer regarding the applicant's education. The applicant's transcript from the Shanghai University of Traditional Chinese Medicine was before the officer. The transcript clearly indicates that the applicant was enrolled in the Faculty of Medicine and the period of study was five years.
[21] In her first and second years, the applicant took the following courses which, in my opinion, would be typical general science courses offered in science faculties in this country:
Human Anatomy
Biology
Histology and Embryology
Physiology
Medical Chemistry
Biochemistry
Pharmacology
Pathology
Microbiology
Parasitology
Physics
[22] Schedule I of the Immigration Act, R.S.C. 1985, c. I-2 only requires a three-year degree for an applicant to receive full credits for a university education. Further, the applicant points out that a bachelor's degree in biology or a related field in Canada can be completed in three years of full-time study. A student need only complete a core requirement of mandatory science courses and is permitted to enrol in courses in other disciplines in fulfilment of the degree requirements. The fact that the applicant pursued courses in Traditional Chinese Medicine cannot be taken as evidence that her degree is not in biology or a field related to biology.
[23] In addition to the transcript, the officer also had before him the applicant's affidavit sworn April 21, 1998. She states:
I am a qualified and experienced pharmacologist. I have several years work experience as a pharmacologist in the area of heavy metal poisoning at the Shanghai University of Traditional Medicine in Shanghai, China
...
Graduates from the Bachelors Degree in Medicine program from SUTCM are qualified to become doctors. The fact that a student majored in Traditional Chinese Medicine or attended a University of Traditional Chinese Medicine does not restrict the student in her potential medical practice.
...
I consider my Bachelor's Degree of Medicine to be a degree related to biology.
It is my opinion that medicine is a related field to biology. Medicine is defined as the science of treating disease, w[h]ere biology is the science of life in all its manifestations. The study of medicine therefore requires a firm grasp of biology and is related to it because medicine concerns the science of prolonging [or] improving the quality of life.
At no time was I contacted by any visa officer or any representative of the Ministry of Immigration and Citizenship Canada to further elaborate on the nature of my Bachelor of Medicine degree, my employment at SUCTM or my current graduate studies.
[24] In his affidavit, the officer notes that the degree in biology or a related field is a requirement under NOC #2121. He states:
... In comparing Ms. Ke's education and training to these employment requirements, I noted that she had completed a bachelor's degree in traditional Chinese medicine (TCM). Since 1997, she has been studying toward a PhD in the Department of Biochemistry at Shimane University, in Izumo, Japan. I also examined information that had been provided in her affidavit for the previous application for judicial review, including the transcripts of her bachelors and graduate studies. After reviewing this information, I concluded that Ms. Ke did not meet the employment requirements specified as required in the NOC. Her studies in TCM were not in biology or a related field, given their focus on diagnosis and treatment of illness using traditional methods, such as acupuncture, traditional herbalism, and qi gong. While her studies included foundation courses in biology and related fields, the courses taken were insufficient for the degree to be considered a degree in biology or a related discipline as referred to in the NOC. Given Ms. Ke's PhD studies are not completed, these studies were not considered in assessing her ability to meet NOC employment requirements.
... With respect to whether or not a degree in medicine is a degree in a discipline related to biology, such assessments must be done on a case-by-case basis, as programs of study may vary. My assessment of the applicant's studies took into consideration the transcripts submitted, as well as other information pertaining to her studies, training and employment. That there is some connection between medicine and biology, in so much as a basic knowledge of biology is necessary for further study in medicine, is granted. However, I found insufficient advanced biological science content in her studies for me to be satisfied that her degree in TCM could be considered a degree in a related discipline to biology.
[25] The repeated references to the applicant's degree as one in TCM underline my concern that the officer's characterization of the applicant's education has tainted his application of the NOC requirements to the assessment of her application.
[26] In the case of Zheng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 484, Lemieux J. faced the following issue: Did the visa officer commit a reviewable error by interpreting the phrase "related discipline" as meaning the "equivalent or substitute" of a bachelor's degree in translation. Lemieux J.held that the visa officer did commit a reviewable error. His analysis, beginning at paragraph 26, follows:
The word "related" is defined in the Shorter Oxford Dictionary as "connected" or "associated" and the word "connexe" is defined in the Robert dictionary as "qui a des rapports étroits".
"Equivalent" in the same dictionaries means "equal in value or corresponds with" and "qui peut la remplacer et chose qui a la même fonction que l'autre".
In the Shorter Oxford Dictionary "substitute" means replace.
Clearly, the word "related" does not have the same meaning as "equivalent" or "substitute". These words have different degrees of similarity or shades associated with them. "Equivalent" or "substitute" conveys the notion sameness, of being identical. Being related is more flexible in terms of linkages -- association or connection is required.
These distinctions make sense if the context of the provision is taken into account. The stated words in the NOC are "a bachelor degree in translation or a related discipline" and are found in an NOC item which covers translators, interpreters and terminologists which have different duties attached to them. Requiring a bachelor's degree in a related discipline was intended to provide flexibility in the assessment of the employment requirements enabling the visa officer a degree of latitude in order to take into account a person whose intended occupation was that of an interpreter or terminologist.
By applying the requirement of a degree equivalent to or substituted for a translation degree, the visa officer confined the scope of employment requirements too narrowly and foreclosed a proper examination on whether the applicant's degree in English language and literature and the courses she followed at the graduate level were connected to her employment as an interpreter. By doing so, the visa officer committed a reviewable error.
[27] This holding was followed by Pinard J. in Qi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 721 in the context of the NOC requirement for a degree in biology or a related discipline under NOC 2121.2. The applicant in Qi, supra, had a bachelor's degree in medicine and was employed as a molecular biologist. His application for permanent residence was refused on the same basis as the one before me. Pinard J. adopted the analysis from Zheng, supra, and allowed the application, stating at paragraph 7:
In the case at bar, I am of the opinion that by applying the requirement of "education equivalent" to a bachelor's degree in biology, the visa officer confined the scope of employment requirements too narrowly and foreclosed a proper examination as to whether the applicant's degree in medicine was connected to biology under NOC 2121. By doing so, the visa officer, like the visa officer in Zheng, supra, committed a reviewable error.
[28] In my opinion, these cases underline the need for a contextual analysis that considers the nature of an applicant's degree on a case-by-case basis. An assessment of the degree according to its title will not be sufficient. It is clear from Lemieux J.'s analysis that "equivalence" is not required. A degree of connection or association will suffice. In the present case, then, the question is simply whether the applicant's program of study was connected or associated in some way with biology.
[29] In my view, there were indications in the evidence before the officer that Ms. Ke's degree, despite being a bachelor degree in medicine, should be scrutinized closely for a connection with biology. These indications included: her work as a pharmacologist at the University after graduation and her doctoral study in medical biochemistry.
[30] I am of the view that a flexible assessment of the applicant's transcript, in light of these indications, would reveal a strong connection to, or association with, the field of biology. The officer's analysis of the applicant's transcripts was misguided for several reasons. First, he was wrong in requiring that the applicant have "enough courses in biology in the higher years". That the applicant completed an undergraduate degree in a field related to biology can be evidenced by the fact that her foundation courses, those more general courses taken early in her program, included biology courses. Subsequently, the applicant specialized, taking courses in a field "related to biology".
[31] Second, while I agree that, independently of her work experience, the applicant must satisfy the educational requirements under the NOC in order to qualify for permanent residence in this class, I take the language in Zheng, and Qi, supra to indicate that the experience of the applicant can provide a context for the officer in his determination of whether the applicant's degree is in a "related field" to the one required. For example, Pinard J. noted in Qi, supra, that the officer defined the scope of the employment requirements too narrowly because he did not explore whether the applicant's degree in medicine was "connected to biology under NOC 2121".
[32] In my view, these cases underline the need for the visa officer to approach the question of "related disciplines" in a contextual manner. The NOC requirements cannot be permitted to be applied so strictly as to effect an absurd result. I find that in the present case, the visa officer based his decision on an erroneous finding of fact made without regard to the material before him.
[33] Accordingly, the application is allowed and the matter is remitted for reconsideration by a different visa officer. There will be no order as to costs.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
January 29, 2002