IMM-506-97
B E T W E E N:
MAY LING CHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D.J.:
This is an application for judicial review of the decision of a Visa Officer dated Sept. 12, 1996. By that decision the Visa Officer refused the applicant's application for permanent residence.
Facts
The applicant resides in Hong Kong. On November 29, 1995, she submitted an application for permanent residence in the assisted relative category. The applicant had been employed at Golden Advance Jewellery Limited since 1985 as a general clerk, sales assistant and administrative officer. She asked to be assessed as an administrative officer. She was interviewed on September 12th, 1996. The Visa Officer awarded the applicant a total of 62 units out of the 65 units of assessment required for landing in the assisted relative category. The Visa Officer awarded the applicant 8 units of assessment for personal suitability.
Issues
| 1. Did the Visa Officer err in concluding that the applicant only spent 17% -18% of her time doing administrative work? |
| 2. Did the Visa Officer err in failing to assess the applicant as a secretary? |
Analysis
Administrative Work
The applicant said that since 1994, she was employed for approximately 66% of her time in administrative work. Accordingly, she should have been awarded 3 years for experience. (6 assessment units instead of 4). In the applicant's view, the Visa Officer was in error in concluding that the applicant only spent 25% of her time employed in administrative work. It is the applicant's submission that, during cross-examination, the Visa Officer conceded that his questions to the applicant with respect to administrative work referred to only one component of the duties of an administrative officer. The applicant submits that if the Visa Officer had not erred in this way, she would have been awarded 64 units of assessment, only one short of the required 65 units.
The respondent replies that the question to the applicant was how much time she spent doing administrative work. Her answer was 5 hours per week. The Visa Officer clearly stated in cross-examination that his question was not restricted to only a portion of the applicant's administrative duties. My perusal of this record persuades me that the Visa Officer did not err in his assessment of the amount of time that the applicant spent doing administrative work. On cross-examination, the Visa Officer did not concede that in his questioning of the applicant, he was referring only to specific duties.1 The Visa Officer asked the applicant how much time she spent on administrative duties. Her response was 5 hours per week. Accordingly I conclude that the Visa Officer correctly awarded the applicant 4 units of assessment for experience.
Assessment as Secretary
The Visa Officer acknowledged that this applicant possessed at least 8 years of secretarial experience. At the time of the interview, the position of secretary was on the occupation demand list. The Visa Officer did not ask the applicant whether she was prepared to pursue this occupation in Canada, although he did inquire about her experience. If she had been assessed as a secretary, she would have been awarded 64 out of the required 65 units of assessment. In these circumstances the Visa Officer might well have exercised a positive discretion and granted her permanent residence since she would have been only one unit short of the required minimum.
In the case of Man v. M.E.I.2, Associate Chief Justice Jerome stated that in an application of this kind, it is the duty of the Visa Officer to assess an applicant in any and all occupations in respect of which the applicant may be qualified. At page 289 he stated - "The Visa Officer must, pursuant to the law and to a duty of fairness, address not only the intended occupation indicated by the applicant, but also alternate occupations for which the applicant is qualified and to which the applicant's experience may apply". On these facts the Visa Officer was under a duty to assess the applicant for the occupation of Secretary. Pursuant to Man supra, it is not necessary for an applicant to request assessment for a specific occupation. In fairness, the Visa Officer must assess an applicant for any alternate occupation for which the applicant is qualified.
For the foregoing reasons, the application for judicial review is allowed. The decision of the Visa Officer dated September 12th, 1996 is set aside and the matter is returned for reassessment before a different Visa Officer on a basis not inconsistent with these reasons for order.
Certification
Both counsel agreed that this is not a case for certification of a serious question of general importance pursuant to Section 83 of the Immigration Act. I agree. Accordingly no such question is certified.
"Darrel V. Heald"
D.J.
Toronto, Ontario
October 30, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-506-97
STYLE OF CAUSE: MAY LING CHAN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: OCTOBER 30, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HEALD, D.J.
DATED: OCTOBER 30, 1997
APPEARANCES:
Mr. Cecil Rotenberg
Ms. Mary Lam
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
Mr. Cecil L. Rotenberg, Q.C.
Barristers and Solicitors
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-506-97
Between:
MAY LING CHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 See Applicant's Amended Supplementary Application Record - questions 137-140 (p.p. 32-33) and questions 114-117 (p.p. 27-28)
2 (1993) 59 F.T.R. 282