Date: 19991115 Docket: IMM-5860-98
BETWEEN:
HONG UNG CHAE,
Applicant,
-and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
NADON, J.
[1] The Applicant, a citizen of Korea, seeks to set aside a decision of visa officer Julie Stock dated October 14, 1998 pursuant to which the Applicant's application for permanent residence in Canada was refused.
[2] As the Respondent states in her Memorandum of Fact and Law, the only issue raised in these proceedings is whether the visa officer erred in law in not considering experience
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gained by the Applicant prior to his obtaining the necessary entry level education as a personnel officer according to the National Occupational Classification (N.O.C.).
[3] The Applicant applied for permanent residence in Canada under the independent
skilled worker category of the Immigration Act and Regulations as a personnel and
recruitment officer (NOC 1223). The main duties of a Personnel and Recruitment Officer
and the employment requirements for this occupation are explained as follows in the NOC:
Main duties
Employment requirements
Personnel and Recruitment Officers perform some or all of the following duties:
Identify current and prospective vacancies, post notices and advertisements, and collect and screen applications
Advise job applicants on employment requirements
Review candidate inventories and contact potential applicants to arrange interviews
- A university degree or college diploma in a field related to personnel management such as business administration, industrial relations, commerce or psychology
or
Completion of a professional development program in personnel administration is usually required.
- Some experience in a clerical or administrative position related to personnel administration may be required.
Recruit graduates of colleges, universities and other educational institutions
- Co-ordinate and participate in selection and examination boards to evaluate candidates
- Notify applicants of results of competitions
- Advise mangers and employees on staffing policies and procedures
- May supervise personnel clerks performing fling, typing and record-keeping duties.
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[4] The Applicant obtained a degree in public administration from the Korea National Open University in February 1998. As a result, he meets the educational requirements for the occupation that he intends to follow in Canada. Hence, the only issue for determination is whether the visa officer ought to have considered the experience gained by the Applicant prior to the obtention of his degree.
[5] In the present instance, the visa officer was of the view that any experience obtained
by the Applicant prior to the obtention of his degree did not count. At paragraph 7 of her
affidavit she states:
"As indicated in the CAMS notes at page 3 of the Tribunal Record, I noted that in the Application, the Applicant stated that he obtained a university degree in February 1998, which meant he had been working less than one year with the university degree in his intended occupation. I award zero units of assessment under the experience factor".
[6] In my view, the visa officer committed an error in concluding as she did. In
paragraph 15 and 16 of his Memorandum of Fact and Law counsel for the Applicant put
forward the following submissions:
The visa officer mistakenly assumed that the only work experience relevant to the applicant is that acquired afterthe educational requirements of the NOC had been met. There is no basis for this assumption either in law or in principle. The NOC educational requirement for a personnel officer reflects the fact that most people in the Canadian work force in this occupation have a particular educational requirement (a Bachelor's degree). Even in Canada, all personnel officers may not have this level of education. This reflects the fact that there are a mix of people in the Canadian labour force, some of whom have recently entered and some of whom have been working for 20 or 30 years when educational requirements may have been lower. The Immigration Department has determined that new entrants need this qualification as a minimum standard to enter Canada.
This NOC says nothing about the educational levels needed to work in other countries in a particular occupation. That can only be determined with reference to local conditions. Whether or not a particular applicant's work experience in his or her own country meets the NOC requirements must be done by comparing the claimed work
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experience with the "main duties" as set out in the NOC. There is no evidence that the visa officer made either of these assessments. This is an error.
[7] I agree with counsel's submissions that there is no basis for the position taken by the visa officer. Having determined that the Applicant met the employment requirements, the visa officer ought to have then examined the Applicant's experience. As she did not do so, her decision must be set aside. The matter will therefore be referred back to a different visa officer for redetermination in accordance with these reasons.
[8] In closing, I should add that I have carefully reviewed the visa officer's affidavit
dated February 17, 1999 and particularly paragraph 5 thereof where she states the following:
I reviewed the application for permanent residence and noted that Mr. Chae's intended occupation is a Personnel and Recruitment Officer. I referred to the National Occupation Classification ("NOC") Manual and looked at "Main Duties and Employment Requirements". I noted that Mr. Chae had a letter of employment from the Jongro Fire Station, "a copy which is found at page I I of the Tribunal Record", that stated his position and level was "Local Fire Fighting Section (Employee)" with an employment period from October 25, 1982 - up to present, 15 years and 1 I months. His occupation was not specified in the employment certificate. On his Application it indicates he began working in 1982 for the fire station. There was no way of verifying if he had performed the main duties in his intended occupation since there was no resume or list of responsibilities accompanying the application.
As it appears clearly from the above, the visa officer was of the view that she could not verify whether the Applicant had performed the main duties of his intended occupation. Counsel for the Respondent attempted to raise this issue before me but I did not allow him to do so as the matter had not been raised by the Respondent in her Memorandum of Fact and Law. Obviously, when the matter comes before a different visa officer, he will and should
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verify whether the experience which the Applicant submits he has gained is in fact experience relevant to his intended occupation in Canada.
[10] For these reasons, this application for judicial review is allowed.
(Sgd.) "M. Nadon" Judge
November 15, 1999 Vancouver, British Columbia
FEDERAL COURT OF CANADA IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5860-98
STYLE OF CAUSE: Hong Ung Chae v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 12, 1999
REASONS FOR ORDER OF Nadon, J.
DATED: November 15, 1999
APPEARANCES:
Mr. Alex Dantzer For the Applicant
Mr. Garth Smith For the Respondent
SOLICITORS OF RECORD:
H.A. Dantzer Barrister and Solicitor Vancouver, B.C. For the Applicant
Morris Rosenberg Deputy Attorney General of Canada For the Respondent