Date: 19990615
Docket: IMM-3810-98
BETWEEN:
YU XU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
A. INTRODUCTION
[1] The applicant, Yu Xu, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, seeks judicial review of a decision dated June 26, 1998, by Immigration Officer Moira Escott ("I.O.") refusing the applicant's application for permanent residence in Canada ("PRA") dated April 30, 1997, in the independent category of solid state physicist. The PRA was filed with the Canadian Consulate General in Buffalo, New York.
B. THE FACTS
[2] The applicant is a citizen of the People's Republic of China ("PRC"). He currently resides in the United States. His PRA disclosed that in 1987 he obtained a bachelor's degree from Northeastern Institute of Technology in Shenyang, PRC.
[3] In terms of work experience, the applicant's PRA indicates the following:
| (a) from August 1987 to January 1989, as a solid state physicist with Anshan Research and Design Institute of Electrostatic Technology in Anshan, PRC; |
| (b) from February 1989 to December 1996, as a solid state physicist with Anshan Hongguang Magnetic Steel Plant in Anshan, PRC; |
| (c) from January 1997 to date as a manager with Crossnation Group Inc. in Fort Lee, U.S.A. |
[4] The applicant's PRA contained letters of reference from his employers describing his work experience and responsibilities. The letter from Anshan Research and Design Institute of Electrostatic Technology is dated April 16, 1997 and confirms employment as a research solid state physicist from August 1987 to January 1989 and outlines his duties and responsibilities as follows:
| 1) Conducting research and designing work in the field of electro-hydraulic effect. |
| 2) Conducting research work of electro-hydraulic effect experiment in the laboratory. He designed the experiment procedures and some equipments, such as containers and electrical circuits. After hundreds of experiments, the method of high efficiency electro-hydraulic effect was found. The method was well-noticed and praised by Japanese experts. |
| 3) Conducting research and application of the mechanism of electro-hydraulic effect on sterilizing the bacteria of different fruit juices. The research results are excellent, which was rewarded by the Committee of Science and Technology of Liaoning Province. |
| 4) Supervising technicians, etc. |
| Mr. Xu is a creative physicist. He did all the experiments and paper works by himself together with other physicists and technicians. |
[5] The letter from Anshan Hongguang Magnetic Steel Plant is dated April 10, 1997 and confirms the applicant's employment as a solid state physicist for seven years and ten months and describes his duties and responsibilities as follows:
| 1) Conducting research and supervising production in the field of permanent magnetic materials. |
| 2) Conducting research of the mechanism of permanent magnetic materials, especially the rear-earth permanent magnetic materials. The good results were achieved by him in the aspect of both high residual magnetism and high magnetic retentivity which are two main values of the magnets. His research result of these two aspects were put into production in the plant, and high quality products were produced, which remain the same level as some companies did in America and Japan. |
| 3) Conducting research and production in Nd-Fe-B is the latest product of rare-earth permanent magnetic materials. With the application of high residual magnetism and high magnetic retentivity, we can produce very competitive products.... Through this, the plant had enlarged its markets both in domestic and foreign countries. |
| 4) Supervising technicians and management, etc. |
| Mr. Xu is a hard-working and creative solid-state physicist, who also remains the ability of management. |
[6] The letter from Crossnation, which is a subsidiary of Anshan Hongguang Magnetic Steel Plant is dated June 10, 1998 and reads:
| Since I was absent when you made a call to me, I'd like to write this letter to you regarding our products and Mr. Xu's occupation. Mr. Yu Xu was hired to work as a solid state physicist, and more specifically metal physicist from Jan. 1997 to Apr. 1998. |
| Our company is a research and production company on permanent magnetic materials. Permanent magnetic materials are high-tech materials, which is a kind of metal since the main content of this material is iron. Therefore, the technicians and scientists hired by the company are mainly solid state physicists, or precisely metal physicists who conduct research on the magnets. The permanent magnetic materials which are produced by our company can be applied in a lot of manufacturing fields, such as motors, micrometers, electrical equipments, computer devices, medical equipments, etc. |
| Mr. Xu conducted research on the physical properties of magnets to optimize the products process in our company. His research involves measurements of the optimal proportion of raw materials, process temperatures, process pressures and other significant factors in the production of high-tech magnets. He also supervised the production process. Mr. Xu is a creative physicist with extensive work experiences. |
[7] The applicant was interviewed by the I.O. in Detroit, Michigan, on June 8, 1998. The I.O.'s notes recording what transpired during the interview say the following:
| Subject's speaking ability in English not fluent. Had difficulty describing employment history in detail. Subject has four year Bachelor degree from China. After completing degree subject's IMM8 and LORS [letters of reference] state he was employed as a solid state physicist for Anshan Research Design Institute of Electrostatic Technology from Aug 87 to Jan 89. Subject stated at interview that for the first year he was employed here he was an assistant to a senior engineer. Subject was unable to describe in detail research conducted. From 89 to 96 subject employed by Anshan Hongguang Magnetic Steel Plant. Subject explained that this factory had 300 workers and he was employed in the technical department supervising production and doing research. The factory produced magnets. Again subject had difficulty describing in detail role as solid state physicist. Subject stated that when not involved in production they would create different magnets and test for their strength. Subject came to U.S. in Jan 97 as L-1 for Crossnation Group, Inc. Subject claims to be Manager of Technical Dept and states 20 people are employed here and it is a subsidiary of Anshan Magnetic Steel Plant. Subject claims Crossnations produces magnets in U.S. When asked for details regarding business subject could not answer. |
| LOR's and info on file not accurate regarding subject's work experience. I attempted to call US employer. LOR from Crossnations not on company letterhead and was similar in type and format to subject's personal letter. When I called after 9:00 am, a woman's voice stated to leave a message - no reference to Crossnations. |
| Subject was read definition of solid state physicist. Subject stated he had not conducted research into the structure, character and physical properties of solids to obtain info regarding their behavior and formulates law governing their physical processes to increase scientific knowledge and applies this knowledge to the design and development of scientific and commercial equipment and processes. Did not observe and identify crystal patterns, did not use spectrometers, X-ray generators, electron microscopes and other optical devices. Did not determine molecular structure using acoustic and electromagnetic waves, etc. |
| Subject advised I could not conclude he met definition of solid state physicist. Subject's credibility also in doubt considering submitted info, reference check. Subject apparently is no longer employed by Co. in U.S. and appears he has not had status in U.S. since Feb 98. Subject has no relatives in Cda, no job offers and could not discuss anything he has done to educate himself about Canada in general and employment opportunities for someone with his background. |
[8] The CAIPS notes of the I.O. contain another entry and this on June 26, 1998 which reads as follows:
| Letter received from Crossnation Group. Letter states subject conducted research on the physical properties of magnets to optimize the products process. Also states he supervised production. |
| I am unable to conclude that subject has education and training of physicist or that he has performed functions as per CCDO and NOC definition. Considering subject's language ability and factors such as initiative, motivation, adaptability and resourcefulness I am unable to conclude subject will successfully establish in Cda. |
[9] On June 26, 1998, the I.O. sent to Mr. Xu, c/o his solicitors, a letter turning down his PRA. The letter states he was assessed under the occupation of solid state physicist and that he was awarded the following units of assessment:
| Age 10 |
| Occupational Factor 01 |
| Special Vocational Preparation 18 |
| Experience 00 |
| Demographic Factor 08 |
| Education 15 |
| English 08 |
| Bonus 00 |
| Personal Suitability 03 |
| Total 63 |
A total of 70 units of assessment is required to qualify for immigration to Canada.
[10] The material part of the letter from the I.O. to the applicant containing the explanation for the result reads as follows:
| From information obtained at interview and on file, I am unable to conclude you have performed the functions of a physicist as per the CCDO and NOC definitions. At interview you were unable to discuss in detail aspects of your employment as a physicist. You stated that you have been employed by companies in China and the U.S. that produce magnets. You stated that you supervise production and assist in technical research. The definition of solid state physicist was read to you and you stated that you had not performed the functions listed in the definition. You were unable to discuss employment in Canada in your field or life in Canada in general. Considering factors such as motivation, initiative, adaptability and resourcefulness, I was unable to conclude that you would successfully establish in Canada. |
| C. THE AFFIDAVITS ON JUDICIAL REVIEW |
(a) The applicant's affidavit
[11] The applicant filed an affidavit on judicial review stating why the I.O. erred in her assessment of him in the areas of "experience" and "personal suitability". He said his alleged inability to completely answer limited specific questions on his vast work experience is not indicative of his true job duties and occupation as a physicist. He asserts having approximately ten years working experience as a solid state physicist and says he performed similar duties as those stated in job description CCDO 2113-158 and NOC 2111. He asserts, contrary to the I.O.'s statement in the refusal letter, at the interview, he discussed his employment experience as a physicist and said he discussed with the I.O. the procedure of producing magnets, the type of sizes the magnets have and types used for the inside of motors of vehicles. He says "from my discussion with the officer, I soon realized the officer was not familiar with my explained processes or those of a Physicist".
[12] The applicant says the I.O. read him the definition of physicist at the interview and he says he advised the I.O. that the research methods per the job descriptions were similar to what he performed. He indicates the officer read much too fast the specific devices used per the job description. He asserts he requested to view the job description for clarity purposes and that the I.O. declined to show him the job description. After having received a copy from his agents, he confirms that his reference letters and their stated duties are similar to those read to him.
[13] The applicant deposes that at the end of his interview and, subsequent to explaining to the I.O. in detail that his job description is closely related to a metal physicist (subtitle of solid state physicist CCDO 2113-158), the I.O. agreed as to his duties as a physicist but requested a further letter of reference and that by letter dated June 10, 1998, his solicitors provided the I.O. his detailed reference letter from the Crossnation Group.
[14] The applicant, in his affidavit, indicates this at paragraph 11:
| 11. There is no question, that I was nervous at the interview, however to award me 0 points for the Experience factor is tantamount and equal to saying that I am not a Physicist and that I have never performed any duties as a Physicist. I respectfully submit that I should have been awarded 8 points for the experience factor. |
[15] The applicant attaches extract from three theses in Physics, written by him, and photos with foreign engineers and physicists who attended an international conference in 1988. This additional documentation was not contained in the Tribunal record and was adduced, for the first time, in this judicial review proceeding.
[16] The applicant then speaks to the personal suitability factor and asserts that he has settlement funds which are over the guidelines, has education at the university level, experience and ability in English such that he would be very successful at establishing himself in Canada and be able to support himself. The applicant says he provided the officer at the interview samples of letters he had written to several employment agencies in researching employment in Canada. He states he has a cousin in Canada who is ready, willing and able to assist him upon landing in Canada.
[17] Mr. Xu's affidavit closes, in the alternative, by submitting the I.O. erred in not assessing his wife's application for permanent residence as the principal applicant. He outlines her qualifications.
(b) The respondent's affidavit
[18] The I.O. filed an affidavit on behalf of the respondent. She speaks to what happened at the interview and says:
| (a) it was apparent during the course of the interview the applicant did not possess a fluent ability to speak the English language; |
| (b) the applicant received a bachelor's degree in applied physics and went to work with Anshan Research, which she said she found surprising, questioned the applicant who stated he actually worked as an assistant to a senior engineer in his first year with the Institute and then worked on research. She deposes asking the applicant to provide her with details regarding his work and research but he could not; |
| (c) the I.O. then deposes to that aspect of the interview which covered Mr. Xu's employment at Anshan Magnetic Steel Plant. She essentially confirms what is contained in her CAIPS notes which are set out in paragraph 7 above; |
| (d) the I.O. then covers the applicant's employment at Crossnation. The I.O. states the applicant indicated his job with Crossnation was the same as his job in China; he managed its technical department and the company produced magnets in the United States. She asserts the applicant had difficulty discussing aspects of the business such as sales, number of employees, production, etc., the letter of reference presented from Crossnation was not on company letterhead and was similar in type and format to one of the applicant's personal letters which she had reviewed; |
| (e) she confirms her CAIPS notes in terms of having read the definition of solid state physicist to the applicant and the answer from the applicant which she recorded in those notes. She goes on to say she asked the applicant to explain how the magnets his company produced were tested and what methods or equipment were used indicating the applicant initially had difficulty responding and then stated a horfield testing machine was used but the applicant was unable to describe to her what exactly this machine tested or how testing was implemented. She confirms her CAIPS notes in terms of personal suitability and denies the applicant indicated to her at the interview he had a cousin residing in Canada. |
[19] The I.O. says she was unable to conclude the applicant had the education and training of a physicist or had performed the functions of a physicist as per the definitions. She says physicists normally possess a master's or doctoral degree in a field of physics or related discipline and that the applicant possessed only a four-year bachelor's degree. She asserts although some of the applicant's paperwork referred to his occupation as a physicist, the applicant was unable to discuss research he conducted or the application or research to the production of magnets and could not discuss magnetic resonance, neutron diffraction and susceptibility measurements or any other scientific terms involving his profession.
D. THE ISSUES
[20] The applicant attacks the substance of the I.O.'s assessment on the personal suitability and experience factors. On personal suitability, he says the I.O. did not take into account relevant factors such as his education, his language ability, his work experience, his adaptability in the North-American environment and his spouse's occupation. He points to letters seeking employment and says the I.O. double counted the experience factor. In terms of experience, he argues what the visa officer asked him were simply technical details. Applicant argues the I.O. took into account extraneous elements such as her statement that it would "be unusual for someone having recently completed a bachelor's degree and no employment experience to be given a position of a solid state physicist..." stating further that "physicists normally possess a master's or doctoral degree in the field of physics..." asking him to discuss "sales, number of employees, production of his employer in the United States" and pointing out to the notation of "manager" in his passport.
E. ANALYSIS
(a) The Immigration Act
[21] The basic scheme is provided for in the Immigration Act and Regulations viewed in the context of the Federal Court Act provisions dealing with judicial review and interpretive principles.
[22] Subsection 6(1) of the Act deals with the general principles of admissibility of immigrants. It provides as follows:
| 6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations. [emphasis mine] |
6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure. [c'est moi qui souligne] |
[23] Subsection 6(8) dealing with assessment reads:
| 6. (8) Where an immigrant is of a prescribed class of immigrants for which the regulations specify that the immigrant and any or all dependants are to be assessed, the immigrant and all dependants may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant and the dependants who are to be assessed meet, collectively,
|
6. (8) Si l'immigrant appartient à une catégorie pour laquelle les règlements prévoient que le cas de l'immigrant et de certaines ou toutes les personnes à la charge de celui-ci doit être examiné, l'immigrant et les personnes à sa charge ne peuvent se voir octroyer le droit d'établissement que si l'agent d'immigration est convaincu que l'immigrant et les personnes à sa charge dont le cas doit être examiné satisfont collectivement_:
|
[24] Section 8 of the Act deals with admissions to Canada and with general presumptions including burden of proof. Subsection 8(1) of the Act provides:
| 8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
(b) The Immigration Regulations
[25] The selection criteria referred to in subsections 6(1) and 6(8) of the Act are authorized to be made by the Governor in Council pursuant to paragraph 114(1)(a) of that Act. The assessment criteria are set out in Schedule I to the Immigration Regulations.
[26] Under section 8 of the Regulations, a visa officer has the obligation to assess an applicant such as Mr. Xu or, at the option of the immigrant, the spouse of that immigrant, on the basis and in accordance with the factors and criteria set out in Schedule I to the Regulations. Subsection 8(2) provides that a visa officer shall award to an immigrant who is assessed on the basis of the factors listed in Column I of the Regulations, the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor. Section 9 of the Regulations, for a case such as Mr. Xu, provides, subject to the Regulations, that a visa officer may issue an immigrant visa to him and his accompanying dependants if the applicant is awarded at least 70 units of assessment. Section 11.1 of the Regulations stipulates that an interview is not required unless, based on a review of the visa application and documents submitted in support, a minimum number of units of assessment are achieved.
(c) Section 18.1 of the Federal Court Act
[27] This judicial review application is governed by section 18.1 of the Federal Court Act which, under subsection (4) provides this Court may grant relief if it is satisfied that a federal tribunal, inter alia, failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; erred in law in making a decision or order, whether or not the error appears on the face of the record; and based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it.
(d) Interpretive principles
[28] Some of the interpretive principles applied here are expressed in the following decisions of the Federal Court of Appeal and this Court:
| (a) Fung v. Canada (Minister of Employment and Immigration) (1990), 12 Imm.L.R. (2d) 164 where the Federal Court of Appeal held that the CCDO was the definitional guide in assessing applications for landing; an assessment must not be inadequate; the visa officer must examine the applicant's entire work experience with respect to the applicant's intended occupation which is normally and usually based on the applicant's account and documents; and, where that is done, and the conclusion reached is based on the evidence, no intervention by this Court is warranted unless the conclusion, examining that evidence, is patently unreasonable. |
| (b) Lim v. Minister of Employment and Immigration (1991), 121 N.R. 241, where the Federal Court of Appeal held that whether an applicant was really qualified in the intended occupation is a pure question of fact entirely within the mandate of a visa officer to resolve. The visa officer must direct his mind to the proper question and his conclusion cannot be patently unreasonable; |
| (c) Chin Te To, May 22, 1996, A-172-93, where the Federal Court of Appeal indicated in matters of statutory discretion, the principles of non intervention established by the Supreme Court of Canada in Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2, should be applied. Such a decision should stand (pages 7-8): |
| 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. |
| (d) Gill v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm.L.R. (2d) 127 where Jerome A.C.J. reviewing the points awarded for personal suitability said this at page 128: |
| The legislative provisions confer a broad discretion on a visa officer in making a determination of this nature and it is entirely within his jurisdiction to form an opinion concerning an applicant's personal suitability based on factors such as adaptability, motivation, initiative, resourcefulness and other qualities. Provided his opinion is reasonable and is neither arbitrary or capricious, there are no grounds to warrant judicial interference; |
| (e) Hajariwala v. Canada, [1989] 2 F.C. 79, where Jerome A.C.J. said this at pages 83 and 84 concerning the limitations of review under section 18 of the Federal Court Act: |
| This is not an appellate review. To succeed the applicant must do more than establish the possibility that I might have reached a different conclusion than the visa officer in this assessment. There must be either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative assessment. |
F. APPLICATION IN THIS CASE
[29] The fundamental question before the Court is whether the record discloses any reviewable error warranting the Court's intervention.
[30] As I see it, the crux of this case is whether, based on the applicant's material and the results of the interview, it was open for the I.O. to reach the conclusion she did particularly with respect to the experience and personal suitability factors.
[31] This determination is to be gauged taking into account the obligation of the applicant to satisfy the I.O. that he has met the selection criteria and the duty of the I.O. to test, to assess and to verify the information provided by the applicant in support of his application for permanent residence.
[32] I am completely satisfied that, in this case, the I.O. discharged her duties in accordance to law and was fair in the manner she proceeded. In terms of the manner and conduct of the assessment, the I.O. satisfied the necessary legal requirements as set out in Muntean v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 12. Specifically, the I.O. identified to the applicant her concern and he had an opportunity to disabuse her. It was also his responsibility to do so (Prasad v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm.L.R. (2d) 91).
[33] On the issue of whether the applicant had work experience as a solid state physicist the I.O. doubted the applicant and the letters of reference filed in support; she probed the issue, as she should. She looked hard at it. The applicant responded to her concerns. He was vague on details and he admitted that. He recanted on his experience during his first year at Anshan Research. He could not correlate the CCDO description with his work experience.
[34] Simply put, as I see it, the applicant was unconvincing to the I.O. The I.O., in the circumstances of this case, was entitled to reach the conclusions she did. The applicant, in my view, failed to demonstrate her assessments were patently unreasonable.
[35] Moreover, the applicant cannot, on judicial review, buttress what he failed to advance before the I.O. (Lemeicha et al. v. M.E.I. (1993), 72 F.T.R. 49).
[36] Applicant's counsel also argued the I.O. took into account irrelevant considerations such as it being usual for a solid state physicist to have a master's or a doctor's degree or taking into account the applicant's job title as a manager in his PRA and in his passport. In my view, upon a proper examination of the I.O.'s affidavit and CAIPS notes, the factors mentioned by applicant's counsel were not considerations which the I.O. took into account in reaching her decision but simply what led the I.O. to dig deeper into the applicant's work experience. Furthermore, I see nothing wrong in the visa officer questioning the applicant as to the sales and production figures at Crossnation. Lastly, counsel for the applicant argued the applicant performed some of the duties of a solid state physicist and that the I.O. failed to take this into account. I am of the view that the record reveals the I.O.'s approach to be sound. As I see it, in respect of the experience factor, based on the facts as found by the visa officer, it was open to her to reach the conclusion she did and there is no basis for interference by this Court.
[37] In terms of the personal suitability factor, I see no grounds for setting aside the I.O.'s opinion. The applicant did not establish double-counting, (lack of work experience and the personal suitability factor) and was not convincing as to his efforts to obtain a job offer in Canada. In essence, applicant's counsel wants me to substitute my opinion for that of the visa officer for the personal suitability factor. It would not be proper for me to do so.
[38] Lastly, applicant asserted, with respect to the occupational factor, an error by the I.O. in not following what is said to be a common practice in alternatively assessing the applicant and the spouse in the spouse's intended occupation as a reporter. Section 9 of the Immigration Regulations provides for an election in assessment between the immigrant or his spouse. The applicant elected he should be the principal applicant and his wife is listed as a dependant. As a matter of law, I have not been persuaded that the I.O. committed an error of law.
G. CONCLUSION
[39] For all of these reasons, this judicial review application is dismissed. There is no issue of general importance for certification.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 15, 1999