Date: 20010112
Docket: IMM-3141-99
Ottawa, Ontario, this 12th day of January, 2001
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
GAO WEN JIE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of the visa officer, rendered May 11, 1999 wherein the application for an immigrant visa under the assisted relative category was denied.
BACKGROUND FACTS
[2] The applicant, Gao Wen Jie (the "applicant") applied for an immigrant visa and requested assessment in the occupation of Computer Programmer (NOC 2163). The applicant had completed a three year university program majoring in Physics. There were electrical and electronic components to this program. The applicant has been employed as a teacher of programming languages and is responsible for a computer lab consisting of 55 computers.
[3] The duties of a Computer Programmer under the NOC are as follows:
| Computer operators perform some or all of the following duties: |
| - Write computer programs or software packages by coding instructions and algorithms into machine readable form |
| - Test, debug, document and implement computer programs or software packages |
| - Maintain existing computer programs by making minor modifications |
| as required |
| - Act as a resource person, solving computer problems for users |
[4] The applicant attended at the Canadian Consulate in Hong Kong for a personal interview on May 11, 1999. At the interview, the visa officer assessed the applicant's language skills and questioned the applicant about his educational and employment background.
[5] The applicant indicated that he had taken some computer courses at university. However, the visa officer was of the view that the applicant did not meet the educational requirements for assessment as a computer programmer, as the applicant did not complete a degree in computer science, nor did he appear to have completed a university program "with a significant programming component"--as is "usually required" under the NOC classification:
| Employment requirements |
| A bachelors degree in computer science or in another discipline with a significant programming component, such as mathematics, commerce or business administration or completion of a college program in computer science is usually required. |
[6] As a result of the visa officer's finding, the applicant was instead assessed under NOC 1421, Computer Operators. Under this occupation, the applicant received four points for experience, but did not achieve sufficient units of assessment in total:
| Age 10 |
| Occupational Demand 01 |
| Education/Training Factor 05 |
| Experience 04 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 13 |
| English 02 |
| French 00 |
| Personal Suitability 04 |
| TOTAL 47 |
[7] The visa officer informed the applicant by letter dated May 11, 1999 that as a result of receiving insufficient units of assessment, the applicant was a member of an inadmissible class of persons and the application for an immigrant visa was therefore refused.
[8] The applicant subsequently commenced this action for judicial review, seeking an order of certiorari and writ of mandamus, directing that the application be reassessed according to law by a different visa officer.
APPLICANT'S ARGUMENTS
[9] The applicant argues that the visa officer erred in law by misapprehending the requirements for assessment as a Computer Programmer. Specifically, since the educational requirements are stated to be "usually required" there may be circumstances in the particular case of the applicant which could enable him to be assessed without meeting these requirements--and according to the applicant, this was not considered by the visa officer. Additionally, the applicant argues that his educational program did in fact have a significant programming component.
[10] The applicant further argues that the visa officer did not transfer and consider the applicant's experience as a computer teacher and lab manager in order to assess points of experience in NOC 2163 as a Computer Programmer. A visa officer who ignores relevant experience commits an error of law according to the applicant.
RESPONDENT'S ARGUMENTS
[11] The respondent argues that the visa officer committed no error in concluding that
the applicant did not meet the educational requirements for assessment as a Computer Programmer. Whether an applicant is qualified for a particular occupation is a pure question of fact.
[12] The respondent argues that the "usual [educational] requirements" are in fact always required unless there is something in the circumstances of the particular candidate (ie considerable experience or background) which would necessitate displacement of the usual requirement. The respondent submits that there is nothing in the record to suggest that there is anything in the applicant's circumstances or background which would displace the usual requirement for a post-secondary program with a significant programming component. The respondent submits that the applicant does not possess such qualifications.
[13] According to the respondent, the second issue, that of transferring experience in the applicant's present occupation to his intended occupation (computer programmer) is irrelevant as he does not qualify for assessment as a computer programmer in light of his deficient educational background. There is no evidence that the applicant has a post-secondary degree with a significant programming component.
ISSUES
| [14] 1. Did the visa officer commit an error of law by misinterpreting the |
employment requirements and make an unreasonable finding of fact in regard to the applicant's education?
| 2. Did the visa officer commit an error of law, having ascertained that the |
applicant had computer experience, by then failing to ascertain what amount of these duties could be credited to the intended occupation of Computer Programmer NOC 2163?
ANALYSIS AND DECISION
[15] Issue 1
Did the visa officer commit an error of law by misinterpreting the
employment requirements and make an unreasonable finding of fact in regard to the applicant's education?
The usual educational requirements for a Computer Programmer (NOC 2163) are:
| College, technical school (certificate, diploma) |
| Completion of a program at a college or technical school is required. A program could lead to a certificate or a diploma. |
| Undergraduate degree |
| Completion of a university degree at the bachelor's level is required. |
[16] The applicant is correct that the visa officer cannot simply state that because the applicant does not have the specified degrees required for a Computer Programmer that therefore the applicant does not meet the educational requirements of the intended occupation. The visa officer must go further and determine whether or not the applicant's work experience makes up for the lack of the required degree. In Magdalini Karathanos v. Canada (Minister of Citizenship and Immigration) (1999), 176 F.T.R. 296 (F.C.T.D.). Sharlow J. (as she then was) stated at pages 5 to 6:
| The NOC uses qualifiers with respect to educational requirements. Their use for immigration purposes is the following: |
| When the NOC says an educational level IS REQUIRED, the individual MUST have this level to be considered qualified for the occupation in Canada. |
| When the NOC lists an Educational level as USUALLY REQUIRED, it means that the applicant MUST MEET this requirement, unless there are significant and substantial factors that would, in the judgement of the visa officer, make it likely that the applicant will be able to overcome this typical requirement. |
| When the NOC says an educational level is SOMETIMES required, for immigration purposes, this means that an applicant is generally not required to have this level. |
| For each occupation, it is expected that entrants to that occupation from abroad should have the entry standard of education indicated by the Education and Training indicator AND the employment requirements. |
| [23] This memorandum was also referred to in Hara v. Minister of Citizenship and Immigration (26 August 1999), IMM-6307-98. I respectfully adopt the comments of Reed J. from paragraph 6 of the decision in that case: |
| . . . it may be an error to state that "is usually required" means that the educational requirement must be met, except where there are significant and substantial factors that persuade the visa officer that the occupational requirements can be overcome. That may be too rigid an interpretation. Nevertheless, there must be some persuasive reason for thinking that the applicant will be able to hold employment in the intended occupation despite the fact that the "usual" educational qualifications are not present. |
| . . . |
| [25] In this case, the visa officer was faced with an applicant who did not have the educational requirements that are "usually required" for her chosen occupation. He should have considered her education, training and experience in its entirety with a view to determining whether it was the approximate equivalent of a master's degree in archival studies, library science or history. After reviewing the record, I am far from satisfied that the visa officer made a reasonable assessment of Ms. Karathanos' work experience with that question in mind. |
[17] The issue now becomes whether the visa officer took into account the applicant's work experience to see if it helped the applicant clear the hurdle of not having met the degree requirements. The degree requirements were clearly addressed by the visa officer in the CAIPS notes. The visa officer in his CAIPS notes stated:
| PI has a diploma only in physics earned from 1991 to 1994. 13 points for education. PI confirmed that he had not taken any additional or subsequent courses nor upgraded his initial education. As such PI does not have the basic training and entry requirements for assessment or consideration as a programmer. While PI refers to self as a programmer and teacher, he is not a programmer per NoC (notwithstanding not having basic training and entry reqts). PI's experience and responsibilities discussed at length to ensure PI was given the best opportunity to explain himself. PI works at Xinhui middle school and teaches students basic computer operation. PI teaches Foxpro (database access language), C language (basic programming language) and Windows (operating systems). PI is also responsible for school's personnel database. Based on foregoing, PI is not a programmer but experience has a degree of complementarity with computer operator and school teacher. However, in former PI obtains 70 units and in latter, PI does not have training and entry reqts (and occ'n has 0 demand). |
[18] I have reviewed these notes and I am satisfied that the visa officer did take into consideration the applicant's work experience before deciding that the applicant did not meet the educational requirements for a Computer Programmer. The visa officer, after discussing the applicant's work experience, stated, "Based on foregoing, the PI is not a programmer . . .!" This says to me that the visa officer did take into consideration both the applicant's schooling and work experience when finding that the applicant did not meet the education requirements for the intended occupation. The visa officer did not commit a reviewable error of law. I reviewed this decision on the basis of a standard of review of reasonableness simpliciter.
[19] Issue 2
Did the visa officer commit an error of law, having ascertained that the
applicant had computer experience, by then failing to ascertain what amount of these duties could be credited to the intended occupation of Computer Programmer NOC 2163?
A review of the quoted CAIPS notes satisfies me that the visa officer came to the conclusion that the applicant's computer experience was not experience that qualified as experience for the intended occupation of Computer Programmer. Having come to this conclusion, there would be no components of experience that could be credited to the intended occupation of Computer Programmer.
[20] The visa officer found that the applicant's experience had "a degree of complementarity [sic] with computer operator and school teacher". Based on a standard of review of reasonableness simpliciter, I find that the visa officer's decision in this respect is a reasonable decision. It is not the function of this Court to substitute its opinion for that of the visa officer as long as the visa officer's decision is reasonable and as was stated by the Supreme Court of Canada in Maple Leaf Farms v. Government of Canada [1982] 2 S.C.R. 2 at pages 7 to 8:
| . . . It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsbiility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
[21] The applicant requested that I certify the following serious question of general importance:
| Where the National Occupational Classification specifies that certain employment requirement is "usually required", is it an error for a visa officer to treat the requirement "always required" in deciding whether to award an applicant points for experience under Schedule I of the Immigration Regulations? |
I am not prepared to certify this question as I am of the view that the question is answered by this decision.
[22] The application for judicial review is dismissed.
ORDER
[23] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
January 12, 2001