Date: 19990709
Docket: IMM-5054-98
BETWEEN:
YU ZHANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J.
[1] The Applicant, a citizen of the People's Republic of China, made an application to come to Canada as a permanent resident on November 17, 1997.
[2] The Applicant sought to come to Canada in the Independent Skilled Worker category and intended to pursue an occupation as a computer programmer or computer systems analyst and requested, by way of his solicitor's letter of submissions, to be assessed alternatively in these occupations.
[3] The Applicant attended an interview at the Consulate General of Canada's offices in Hong Kong on August 25, 1998. He was interviewed by Yvonne Y.W. Tsang, a designated immigration officer.
[4] On September 4, 1998, the Applicant received a refusal letter from the visa officer dated August 25, 1998, advising the Applicant that she had decided that he could not be assessed as a computer programmer. The Applicant was assessed as a computer operator and, in that occupation, he did not achieve the requisite 70 points required to be issued a permanent resident visa.
[5] There is no indication in the refusal letter that the visa officer assessed the Applicant as a computer systems analyst.
[6] In an affidavit sworn on November 26, 1998, the visa officer states:
| I advised the Applicant that I was not satisfied that he had worked as a computer programmer as his experience with computer programming is only limited to working with development tools, which are software packages purchased off the shelf. I therefore assessed the Applicant in the occupation of Computer Operator as I was satisfied that the Applicant operated spreadsheet programs and other types of software to load and manipulate data to produce reports, this being one of the duties of a Computer Operator outlined in NOC classification 1421. |
| The NOC description for Computer Programmer indicates that "progression to computer systems analysts is possible with experience". The NOC description for Computer Systems Analyst (NOC classification 2162) indicates that previous experience as a computer programmer is usually required. A copy of the NOC classifications for the categories in which the Applicant was considered are attached as Exhibits "B", "C", and "D" to the Affidavit of the Applicant signed September 30, 1998. |
| As I had determined that the Applicant does not meet the criteria for the occupation of Computer Programmer, I did not assess the Applicant further in the occupation of Computer Systems Analyst as requested by his immigration consultant. |
[7] I take this to mean that the visa officer decided that, because she found the Applicant not to be a computer programmer, she did not have to proceed and do an analysis for the Applicant with regard to his alternative occupation as a computer systems analyst, but did an analysis in the occupation of computer operator.
[8] In reading the visa officer's CAIPS notes, there is no mention of any analysis being done by the visa officer regarding the alternative occupation, computer systems analyst.
[9] I am satisfied that the visa officer erred in not assessing the Applicant under his alternative listed occupation, that is, as a computer system analyst.
[10] In the case of Gaffney v. The Minister of Employment and Immigration (1991) 12 Imm. L.R. (2d) 185, at page 189, it was held by the Federal Court of Appeal that a visa officer has a duty to assess an application with reference to the occupation(s) represented by the applicant as the one for which he or she is qualified and prepared to follow in Canada. "That duty, in my view, extends to each such occupation."
[11] As I have said, from a reading of the visa officer's CAIPS notes, this was not done.
[12] Furthermore, and as I have said, there is no reference in the letter of refusal that any consideration was given to the alternative occupation.
[13] In the letter of refusal there is the statement "There is no other occupation apparent on your application in which you are qualified and experienced and under which your application would be successful.
[14] I cannot accept this statement, as I am asked by the Respondent, as showing that the visa officer did turn her mind to a consideration of the alternative occupation as a computer systems analyst.
[15] I believe that the case of Olanrewaju Olatunji Olajuwon v. The Minister of Citizenship and Immigration, IMM-38744-97, July 3, 1998 (F.C.) to be almost identical with the case at bar. In this case, at page 5, Mr. Justice MacKay states:
| In the case at bar, the applicant specifically requested that he be assessed in relation to two occupations. In the letter rejecting his application, only one of those was addressed by the visa officer and there is no evidence except for the later affidavit of the visa officer that the applicant was in fact assessed in relation to the occupation Tour Operator for which he had specifically requested assessment. The visa officer has a duty to assess an applicant for permanent residence in the occupations for which he requests assessment and the results of that assessment are to be set out, in any letter rejecting the application, for one or more occupations for which the applicant requests assessment. |
[16] I agree with the above statement.
[17] For these reasons, I issued an Order allowing the application for judicial review setting aside the decision of the visa officer dated August 25, 1998, and refer the Applicant's application for permanent residence for reconsideration by a different visa officer who should take no account of the record developed in relation to the decision now set aside.
(Sgd.) "Max M. Teitelbaum"
Judge
Vancouver, B.C.
July 9, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5054-98
STYLE OF CAUSE: Yu Zhang v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: July 8, 1999
REASONS FOR ORDER OF TEITELBAUM, J.
DATED: July 9, 1999
APPEARANCES:
Mr. Dennis Tanack for Applicant
Ms. Emilia Pech for Respondent
SOLICITORS OF RECORD:
Dennis Tanack for Applicant
Barrister & Solicitor
Vancouver, B.C.
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada
Ottawa, Ontario