Date: 20010420
Docket: IMM-2571-99
Neutral Citation: 2001 FCT 362
BETWEEN:
LI XIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
Introduction
[1] Li Xin seeks judicial review of the April 20, 1999 decision of a visa officer at the Canadian Consulate General, in Hong Kong, denying his application for permanent residence under the independent category.
[2] The applicant submitted an application for permanent residence to Canada in 1996 requesting assessment under the Canadian Classification and Dictionary of Occupations ("CCDO") as a Computer Hardware Specialist, code 2183 154.
[3] At his April 19, 1999 interview, the officer tested the applicant's oral written and reading skills in English, then asked the applicant a series of questions related to his work experience. The visa officer found his responses vague, the applicant having supplied no additional details beyond his initial responses. Although the visa officer questioned the applicant in search of greater detail, none was forthcoming, and the visa officer informed the applicant of his concerns about his claimed work experience, in particular, that his descriptions lacked detail and failed to demonstrate technical knowledge of the sort one would expect of an experienced Computer Hardware Specialist. The applicant countered these concerns by supplying photos of himself at work, performing what the visa officer found to be basic tasks, such as sitting at a keyboard: that photo is labelled "kill virus for customers"; another photo shows the applicant working on an open computer: the photo is labelled "fixing computer hardware"; yet another photo shows the applicant sitting at a table with three others with two computers, labelled "discussing projects".
[4] The visa officer was not satisfied the applicant had work experience in his requested occupation, so he considered the applicant under the following alternate occupations under the CCDO: Electronic Engineering Technologist CCDO 2165 130; Electronic Engineer CCDO 2144 122; and Programmer, Engineering and Scientific CCDO 2183 122.The applicant did not meet the selection criteria in these occupations.
[5] The visa officer then considered the applicant under the following National Occupation Classification ("NOC") occupations: Systems Analyst (NOC 2162); Computer Programmer (NOC 2163); Electronic Service Technician (NOC 2242), and Electronic Engineering Technologist (NOC 2241.1). Again, the applicant did not receive sufficient minimal units of assessment.
[6] At the interview, the visa officer advised the applicant of his assessment and explained his reasons for refusing the application. The refusal was confirmed by letter dated April 20, 1999.
[7] The visa officer's refusal letter states the applicant received 65 units of assessment under the occupation Electronic Engineering Technologist CCDO 2165 130, and as such he had failed to earn the minimum required 70 units of assessment. He advised the applicant he had also considered him in his intended occupation of Computer Hardware Specialist, CCDO 2183 154, but was not satisfied the applicant had the necessary experience to meet the requirements. The visa officer stated he had considered the applicant in alternative occupations as well, but in the end concluded "There is no other occupation apparent on your application in which you or your spouse are qualified and experienced, and under which your application would be successful."
[8] The applicant raised four issues in the application for judicial review.
Issue # 1
[9] The applicant asserts the visa officer erred in law and in fact in determining the applicant was not qualified to pursue the occupation of Computer Hardware Specialist CCDO 2183 154, then erred in law in failing to assess the applicant under alternative CCDO occupations for which he was qualified and experienced.
[10] The applicant submits the CCDO defines the major duties of a Computer Hardware Specialist as follows "Develops, implements, evaluates and maintains computer hardware to meet user requirements". In his work experience, the applicant claims he performed the following duties of a hardware specialist: planned projects, system analysis, developed computer hardware applications, designed application devices, installed computer network hardware, directed and trained customers on how to install and use microcomputers, and killed viruses for users. As such, the applicant claims the visa officer erred in law and fact in finding he did not meet the CCDO definition of a Computer Hardware Specialist.
[11] The respondent argues the visa officer reasonably assessed the principal applicant under the occupation of Computer Hardware Specialist since the fundamental issue in the visa officer's assessment was the applicant's inability to describe his work experience in sufficient detail to satisfy the visa officer that he had work experience in the occupation of Computer Hardware Specialist. The applicant's responses were vague and not indicative of the depth and breadth of knowledge expected of a hardware specialist. At paragraph 9 of his affidavit, the visa officer notes: "... I asked him to describe in detail how he designed this device, but again his responses were vague: he stated only that he designed a little device, using a paper and pen, without providing technical details or information on the factors considered in designing the device, the specifications of the device or procedures for its use."
[12] Further, the visa officer reviewed the applicant's affidavit and noted the applicant's account of the interview did not contain details of the subsidiary questions the visa officer had asked him in an effort to obtain detailed descriptions of the applicant's work experience. The visa officer, at paragraph 10 of his affidavit indicates: "I then advised Mr. Li of my concerns with his claimed work experience. I advised him that his descriptions of his work experience lacked detail and did not demonstrate the technical knowledge of an experienced Computer Hardware Specialist. He did not provide details on how performance specifications were determined, how systems were designed, planned and implemented, or how technical problems were solved, despite questions from me directed at obtaining such information. In response to my concerns, Mr. Li submitted some photos of him at work. These photos showed him repairing computer hardware, executing antivirus software, installing and testing computer peripherals. The photos suggested his duties were quite basic, involving simple repair and maintenance of desktop computers."
[13] In this instance, the visa officer repeatedly asked the applicant questions about his experience in an effort to obtain a clearer sense of his work experience. Despite repeated questions, to which both his CAIPS notes (adopted in his affidavit) and the affidavit itself refer, the visa officer was unable to extract any information from the applicant with respect to detail that could substantiate his work experience.
[14] The visa officer assessed the applicant in a number of alternative CCDO and NOC occupations, in an effort to give him the benefit of any advantage that might accrue. However, the applicant did not receive the minimum required units in any of these occupations. The applicant argues he had the experience to qualify for the occupation of Programmer, Scientific, Engineering. Regarding this occupation, in the CAIPS notes the visa officer stated "I asked PI if he had exp as programmer. PI says a little bit, designs small programs for interface. Would have less than 1 yr exp as programmer with this exp"
[15] The applicant also submits the visa officer, having assessed him as an Electronic Service Technician (NOC 2242), was under a duty to assess him under the equivalent CCDO occupation. In oral argument, counsel for the applicant suggested that Field-Service Representative, CCDO 8589 110 is the equivalent CCDO occupation and if an assessment had been made under this occupation the applicant would have recieved 69 units of assessment. I note that in the NOC to CCDO Conversion Table there are at least thirty CCDO occupational titles identified for the NOC unit group title Electronic Service Technicians, NOC 2242. As the applicant did not provide the CCDO definition for Field-Service Representative to the Court, there is no basis on which the Court can determine if it is an equivalent occupation. As there is no factual basis for the argument, the Court will not consider the fairness issue raised by the applicant.
[16] It is well established that the burden to establish eligibility to immigrate to Canada rests with the applicant, as articulated in Hajariwala v. Canada (Minister of Citizenship and Immigration), [1989] 2 F.C. 79 (T.D.). While the applicant submits he has experience in the major duties of Computer Hardware Specialist and that the visa officer has erred in finding otherwise, the CAIPS notes and the visa officer's affidavit show that the applicant simply did not meet the burden of demonstrating he had work experience in his intended occupation.
Issue # 2
[17] The applicant further submits the visa officer erred in fact and in law in assessing his personal suitability, since he failed to give him credit for having changed occupations: he had worked for the Chendu Electronic research Institute for eight years, but then was transferred to the Sichuan College of Finance and Trade Management. The applicant alleges the visa officer erred in not attributing more points to his personal suitability because of this change, since it indicated the applicant exhibited initiative and adaptability.
[18] In this case, it is not unreasonable that the applicant's transfer from one position to another was not viewed by the visa officer as a positive indicator of adaptability. It was not at the applicant's initiative that he moved from one position to another; rather he was transferred. Nor, as submitted by the applicant, does it reflect a bias against the applicant's state run employment experience.
[19] In the words of Dube J. in Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1080, at paragraph 6: "The assessment of personal suitability is entirely within a visa officer's scope of expertise and should not be interfered with unless the finding is perverse or capricious, or unless the visa officer committed an error of law..." I can see no reviewable error here.
Issue # 3
[20] The applicant also submits the visa officer erred by reading into the Immigration Regulations, SOR/78-172 ("Regulations") an additional factor not found in the regulations when assessing the applicant's personal suitability.
[21] Factor 9 of Schedule I of the Regulations sets out that on the basis of an interview, units of assessment shall be awarded to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities. In this regard, the visa officer's CAIPS notes state "Suit 4. PI assigned to jobs, with no exp in open labour mkt, searching for work. Limited knowledge of CDA, no notable efforts to prep for immig. PI adaptability appears limited, with no exp in Int'l Co. or overseas." The applicant submits that the visa officer's reference in answer # 131 during cross-examination on his affidavit to "adaptability to the labour market in Canada" incorporates a criteria not found in Factor 9 Schedule 1 to the Regulations.
[22] The applicant also submits, relying on Campbell J.'s decision in Lau v. Canada (Minister of citizenship and Immigration), [1998] F.C.J. No. 543 the visa officer fettered his discretion by incorporating into his assessment a 1995 policy directive sent to all visa posts. In my view, the applicant has failed to establish any factual basis for this assertion. There is no evidence that the visa officer took into account the contents of the policy directive in his assessment of the applicant's personal suitability. If this was a concern, then it should have been addressed during cross-examination of the visa officer.
[23] Further, having regard to the visa officer's use of the phrase "adaptability to the labour market in Canada" within the context of the surrounding questions and the CAIPS notes concerning the assessment of personal suitability, I am not persuaded that the visa officer read in an additional criteria as alleged.
Issue #4
[24] In addition, the applicant alleges the visa officer breached the duty of procedural fairness by not investigating the authenticity of his reference letters, which the visa officer found strikingly similar; the visa officer therefore failed to satisfy himself as to the applicant's credibility and the legitimacy of his claimed experience.
[25] I note that on cross-examination on his affidavit, the visa officer stated his observation regarding the similarity between the two letters as "one element considered". In the circumstance of this case, where the primary concern of the visa officer was the applicant's inability to demonstrate during the interview that he had experience in his intended or alternative occupations, there was no breach of the duty of fairness.
[26] In my view, the visa officer conducted a thorough and fair assessment of the applicant. Accordingly, the application for judicial review is dismissed.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
April 20, 2001