PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Whether a decision is wise or otherwise, although technically correct, is for the test of time to tell!
In judicial review, the actual finding, if not patently unreasonable, is not for the Court to return.
That finding belongs to the first instance, trier of fact, together with any consequences which flow therefrom.
JUDICIAL PROCEDURE
[2] The Applicant Ms. Lau Shuk Ling seeks judicial review pursuant to section 18.1 of the Federal Courts Act[1], of a decision of a visa officer of the Canadian Consulate General of Canada in Hong Kong. In his decision dated May 3, 2004, the visa officer refused Ms. Ling's application for permanent residence in Canada under the skilled worker class.
BACKGROUND
[3] Ms. Ling is a citizen of Hong Kong who started her teaching career in 1973 and has been a principal of a primary school since 1989. She received her Certificate of Registration of Teacher in 1971. Later, she received a Bachelor's Degree in Psychology and partially completed a Master's program in Gerontology. At the time, she submitted her application for permanent residence in Canada, she was enrolled in a Bachelor of Education Program in Hong Kong and was the principal at Shek Kei Catholic Primary School. Ms. Ling's application for permanent residence under the skilled worker category was accompanied by an offer for arranged employment for the position of
Retail Sales Manager (NOC 0621) at Wh & M Enterprises Ltd, her father's company that is "in the business of selling shirts and fabric for men's slacks. Human Resources Development Canada had validated this arranged employment offered to Ms. Ling by her father.
DECISION UNDER REVIEW
[4] Having interviewed Ms. Ling on April 1, 2004, the visa officer refused her application in a letter dated May 3, 2004, which provided the following ranking:
POINTS MAXIMUM
ASSESSED POSSIBLE
AGE 04 10
EDUCATION 20 25
OFFICIAL LANGUAGE PROFICIENCY 08 24
EXPERIENCE 21 21
ARRANGED EMPLOYMENT 00 10
ADAPTABILITY 05 10
TOTAL 58 100
[5] The reasons given were as follows:
For the most part, your application was assessed based on the occupation(s) in which you have been working, School Principal NOC 0313 skill 0. The score for arranged employment and offer of employment were assessed against the criteria of Retail Sales Manager NOC0621. [...]
You have not satisfied that you meet the criteria for the position for which you have received an offer.Therefore no points were awarded for arranged employment or for the offer of employment under adaptability. You have obtained insufficient points to qualify for immigration to Canada, the minimum requirement being 67 points. You have no work experience as a retail manager. You have not obtained sufficient points to satisfy me that you will be able to become economically established in Canada.
ISSUE
[6] Was the visa officer finding that the Applicant did not meet the requirements of Retail Sales Manager patently unreasonable?
ANALYSIS
[7] As stated by the Federal Court of Appeal in Lim v. Canada (Minister of Employment and Immigration)[2], whether a person meets the requirements of a certain work description is a pure question of fact which is entirely within the mandate of a visa officer to resolve and should therefore be reviewed by this Court on a patently unreasonable standard.
[8] Ms. Ling argues that the visa officer failed to assess her education, training, background and experience in its entirety when determining whether she could perform the job she was offered as retail sales manager and when determining how many points to assign under the categories of "arranged employment" and "adaptability".
[9] The National Occupational Classification (NOC) duties for the intended occupation of retail sales manager are as follows:
Retail trade managers perform some or all of the following duties:
· Plan, direct and evaluate the operations of establishments engaged in retail sales or of departments in such establishments
· Manage staff and assign duties
· Study market research and trends to determine consumer demand, potential sales volumes and effect of competitors' operations on sales
· Determine merchandise and services to be sold, and implement price and credit policies
· Locate, select and procure merchandise for resale
· Develop and implement marketing strategies
· Plan budgets and authorize expenditures
· Determine staffing requirements and hire or oversee hiring of staff.
[10] The Court agrees with the Respondent that the visa officer's determination that Ms. Ling did not meet the requirements for the position of retail sales manager was reasonable and supported by the evidence. According to the chapter on Overseas Processing of the Immigration Manual, a visa officer "may take into account the applicant's education and training, background and prior work experience to determine if the applicant meets this requirement [arranged employment]". The evidence before the visa officer indicated that Ms. Ling's education, training, background and prior work experience was primarily in education. Furthermore, according to the visa officer's interview notes, Ms. Ling said she had very little experience in the retail trade. In his request for confirmation of a job offer submitted to Human Resources Development Canada, Ms. Ling's father admitted too that his daughter has no direct experience in clothing retail:
Although she has no direct experience in retail of clothing, she certainly has good familiarity with the clothing industry because I have been in the garment industry all my life and she has been assisting with my business during holidays and weekends when we were living in Macau.
In addition, the visa officer wrote the following in his interview notes:
I can stipulate that she has experience managing staff and assigning duties, albeit it in an academic rather that [sic] a retail environment.
This shows that the visa officer did consider the fact that Ms. Ling has experience in managing staff and assigning duties in the academic context, in order to determine if, transferred in the retail environment, these skills would be sufficient to demonstrate that Ms. Ling had performed a majority of the duties listed in the retail sales manager's NOC description. He answered this purely factual question in the negative. It was not patently unreasonable for the visa officer to reach that conclusion.
CONCLUSION
[11] For these reasons, the Court answers the question in the negative. Therefore, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that
1. The application for judicial review be dismissed;
2. No question be certified.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5261-04
STYLE OF CAUSE: LAU SHUK LING
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
Mr. M. Max Chaudhary FOR THE APPLICANT
Ms. Patricia MacPhee FOR THE RESPONDENT
SOLICITORS OF RECORD:
CHAUDHARY LAW FIRM FOR THE APPLICANT
North York, Ontario
JOHN H. SIMS Q.C. FOR THE RESPONDENT
Deputy Minister of Justice and
Deputy Attorney General