Date: 20001215
Docket: IMM-2397-99
BETWEEN:
YAN YAN WOO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] This is an application for judicial review of a visa officer's decision dated April 9, 1999, which refused the applicant's application for permanent residence in Canada in the Independent category.
[2] The applicant, a citizen of Hong Kong, was assessed in the following occupations: journalist, reporter, editor, and editorial assistant. The designated immigration officer (the "visa officer"), Judyanna Ng, determined that the applicant did not "qualify to undertake" the first three occupations. She then assessed the applicant in the occupation of Editorial Assistant and found that the applicant earned 56 units, 14 less than the minimum required units of assessment (70).
[3] The applicant submits that the visa officer made the following errors: that she erred in relying on a memo to conclude that the applicant did not have the equivalent of a bachelor's degree; that she misread the memo which did not even mention the applicant's college; that she erred by not showing the applicant the memo she was relying on; that she erred in finding that the educational institution is to be assessed from the country of study; that she erred in assuming that the applicant did not have at least one year of experience as a social policy researcher and therefore, did not assess her under an alternative occupation; that she erred in interpreting the National Occupational Classification ("N.O.C.") educational requirements as mandatory rather than "usually required"; that she erred by importing the criterion of "exceptional work" into her assessment of job performance.
[4] The respondent submits that the visa officer did not err and that the applicant was entitled to only 13 units, rather than 15, "as she had not earned a first level university degree recognized in the country of study", i.e. Hong Kong. In this regard, the respondent submits that the visa officer "properly considered the College's degree conferring power in Hong Kong and determined that it does not have the authority to confer degrees there". As a result, although the visa officer acknowledged that some American universities recognized the College's diploma as being equivalent to a B.A., she concluded that the College did not have degree-granting powers in Hong Kong, and therefore, did not award the 15 units of assessment.
[5] The visa officer's decision was communicated to the applicant by a letter dated April 9, 1999. The letter reads as follows:
| This refers to your application for permanent residence in Canada, and your interview held on April 8, 1999. I have now completed my assessment of your application and regret to inform you that I have determined that you do not meet the requirements for immigration to Canada in the Independent category. |
| Pursuant to subsections 8(1) and 9(1) of the Immigration Regulations, 1978 as amended, immigrants in the Independent category shall be assessed on the basis of each of the factors listed in column I of Schedule I of the Regulations. These factors are: education, education/training factor, experience, occupational demand, arranged employment or designated occupation, demographic factor, age, knowledge of English and French languages and, on the basis of an interview, personal suitability. |
| I have assessed you in the occupations Journalist, Reporter and Editor. However, based on your description of your qualifications and training, you were determined not to qualify to undertake these occupations. |
| I have assessed you in the occupation Editorial Assistant, for which you earned the following units of assessment: |
| Education/Training Factor 05 |
| You have failed to earn the minimum required units of assessment required to pass in the Independent category (70). I consider the units of assessment which you have been awarded are an accurate reflection of your ability to successfully establish in Canada. |
| There is no other occupation apparent on your application in which you are qualified and experienced, and under which your application would be successful. |
| Because you cannot meet the selection criteria established for Independents, you are a member of the class of persons who are inadmissible to Canada described in paragraph 19(2)(d) of the Immigration Act and I have refused your application. I have attached copies of the legislation referred to in this letter for your reference. |
| I realize that this decision may be a disappointment to you and regret that it could not be favourable. |
[6] The issues for determination are set out as follows at pages 3 and 4of the applicant's Memorandum of Fact and Law:
| i) err in law and fetter her discretion in awarding 13 units for education as opposed to 15 units by relying on a memo when there was evidence to prove she had the equivalent of a Bachelor's degree; and |
| ii) alternatively did the visa officer misread the memo she relied upon as there is no specific mention of the new Asia Arts and Business College in Hong Kong |
| iii) deny the Applicant procedural fairness in the Muliadi sense in that the visa officer relied upon a memo that was not shown to the Applicant. |
| iv) err in law in finding that the educational institution is to be assessed from the country of study as opposed to the country of the schools [sic] Charter |
| B. Did the visa officer err in law in assuming the applicant did not have at least one year of work experience to be assessed as a social policy researcher and as such failed to assess her in an alternative occupation? |
| C. Did the visa officer err in law by |
| i) interpreting the NOC educational requirements as mandatory as opposed to "usually required" for the occupations of journalist/editor and reporter; |
| ii) reading the criterion into NOC the need to perform the job duties exceptionally? |
Analysis
[7] The visa officer concluded that the applicant did not qualify to undertake the occupations of journalist, reporter and editor. She came to that conclusion because, in her view, the applicant did not meet the employment requirements for these occupations.
| [8] N.O.C. 5122 (Editor) and N.O.C. 5123 (Journalist/Reporter) prescribe the following employment requirements: (a) for 5122 Editors: - A bachelor's degree in journalism, English, French, or a related discipline is usually required; - Several years of experience in journalism, writing, publishing or a related field are usually required.; (b) for 5123 Journalists: - A university degree or college diploma in journalism or a related field is usually required. |
[9] The issue which arises with respect to the employment requirements under N.O.C. 5122 and 5123 is whether the degree obtained by the applicant from the New Asia Arts and Business College is a degree which meets the employment requirements of N.O.C. 5122 and 5123. The visa officer concluded that it does not. At paragraphs 6, 7 and 8 of her affidavit, dated July 16, 1999, the visa officer explains her position as follows:
| 6. The Applicant presented evidence that she received a Diploma from the New Asia Arts and Business College in Hong Kong. I awarded her 13 units of assessment under Facto I of Schedule I of the Regulations. Though the applicant produced documentation from the College disclosing that its diplomas were recognized as the equivalent of Bachelor of Arts and Bacher of Science degrees by the Chinese Ministry of Education and some universities in the United States, my inquiries revealed that the College's diplomas are not recognized as degrees in Hong Kong. I also determined that it would not satisfy the degree requirements of the N.O.C. classifications for the intended occupation as a Journalist or the alternate occupations that I had assessed the Applicant i.e. as a Reporter and an Editor. I therefore did not go to explore whether the diploma is recognized in Taiwan. |
| 7. The Applicant indicated in her application that she had held various positions in the field of journalism, as a reporter and as an editor in Hong Kong over a four year period. The Applicant was assessed in her intended occupation as Journalist (N.O.C. 5123.0) based on the job descriptions provided by the Applicant during the interview, I determined the Applicant performed similar job duties in her intended occupation as a Journalist. Though the Applicant had a diploma in Chinese literature and history, she did not meet the education and training requirements of NO.C. 5123.0 - N.O.C. 5123.0 requires a degree or college diploma in journalism, English, French or a related discipline. I found that Chinese literature and history could not qualify as a "related discipline" and determined that the Applicant did not meet the N.O.C. qualifications for the intended occupation. The applicant was also assessed as a Reporter which are under the same N.O.C. group 5123.0. However, the Applicant does not have the minimum qualifications as specified in the employment requirements for this occupation under N.O.C. i.e. A university degree or college diploma in journalism or a related field is usually required. |
| 8. I had also assessed the Applicant as an Editor (N.O.C. 5122.0) as I determined she had work experience in this occupation. However, the Applicant also does not meet the employment requirements for this occupation under N.O.C. i.e. A bachelor's degree in journalism, English, French or a related discipline is usually required. |
[10] Firstly, there was debate between the parties as to the meaning of the words "usually required", found both in N.O.C. 5122 and 5123. These words were addressed by Sharlow J. (as she then was) in Karathanos v. Canada (M.C.I.), [1999] F.C.J. No. 1528 (Court File No. IMM-5011-98, judgment dated October 5, 1999) and by Evans J. (as he then was) in Nemati v. Canada (M.C.I.), [1999] F.C.J. No. 1193 (Court File No. IMM-4092-98, judgment dated July 28, 1999). I prefer the opinion expressed by Sharlow J. in Karathanos to that of Evans J. in Nemati. In her Reasons, Sharlow J. distinguishes the requirements of the "education and training" category and the "occupational factor" category. She concludes that with respect to the educational and training category, the words "usually required" mean always required. At paragraph 15 of her Reasons, she puts it as follows:
| 15. Thus, it can be said that in awarding points of assessment for the "education and training " category in Schedule I, an occupational category that usually requires a master's degree is treated as though it always requires a master's degree. |
[11] With respect to the occupational factor category, Sharlow J. makes the following remarks at paragraphs 16 and 17:
| 16. However, it does not follow that the words "usually requires" must be read the same way in assessing the number of points in the "occupational factor" category. In assessing the applicant under that category, the words "usually required" mean just what they say. This is consistent with the following explanatory notes in the National Occupational Classification [ee Note 4 below] that deal with the meaning of terms used to describe the educational component of the employment requirement for the listed occupations: |
| __________________________ |
| Note 4: Introduction, page ix. |
| __________________________ |
| This section describes the employment requirements for the unit group. |
| Some occupations have very definite employment requirements which for others, there is no concensus [sic] or there may exist a range of acceptable requirements. To reflect this variation in the labour market, this section describes employment requirements using the following terminology: |
| - "... is required" (to indicate a definite requirement) |
| - "... is usually required" (to indicate something that is usually, but not always required by employers) |
| - "... may be required" (to indicate something that may be required by some employers, but on a less frequent basis. |
| 17. Thus, there is no basis for the conclusion reached by the visa officer that a person who does not have a master's degree in archival studies, library science or history is, for that reason alone, unable to meet the employment requirements for an archivist. The visa officer was wrong to find support for his conclusion in the parts of the Career Handbook that relate to the determination of ETI ratings, and by extension the points for the "education and training" category. That material does not address the meaning of the words used in the "occupational factor" category in Schedule I. |
[12] The learned judge then goes on to discuss the decision rendered by Evans J. in Nemati. At paragraphs 20, 21, 22 and 23 of her Reasons, she states the following:
| 20. It was argued for the Minister that the visa officer correctly followed an analysis similar to that of the visa officer in Nemati v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1193 (QL) (F.C.T.D.). In that case, the decision of the visa officer was upheld. Paragraph 4 of the reasons read as follows: |
| The officer relied on the interpretive provisions of the NOC which state that, when an education level is "usually required" an applicant must meet it unless the officer is satisfied that there are "significant and substantial" factors in the file which make it likely that the applicant could overcome the absence of the usual requirements. |
| 21. There are in fact no interpretive provisions of the NOC that say anything like this. The judge in Nemati appears to have been misled in this regard by the affidavit of a visa officer filed in that case, which refers to a document entitled "SSD-0044 NOC/la CNP "Use Of The NOC, Entry Requirements and Landing." That document is not part of the National Occupational Classification and it has never been incorporated by reference into the Immigration Act or the Immigration Regulations. It is simply a memorandum dated July 16, 1997 distributed to visa officers, apparently by e-mail. |
| 22. This memorandum apparently was intended to clarify some questions that had been raised about the National Occupational Classification, which in July of 1997 had been part of the Immigration Regulations for less than three months. With respect to the educational requirements for the occupations listed in the National Occupation Classification, the memorandum says this: |
| The NOC uses qualifiers with respect to educational requirements. Their use for immigration purposes is the following: |
| When the NOC says an educational level IS REQUIRED, the individual MUST have this level to be considered qualified for the occupation in Canada. |
| When the NOC lists an Educational level as USUALLY REQUIRED, it means that the applicant MUST MEET this requirement, unless there are significant and substantial factors that would, in the judgment of the visa officer, make it likely that the applicant will be able to overcome this typical requirement. |
| For each occupation, it is expected that entrants in that occupation from abroad should have the entry standard of education indicated by the Education and Training Indicator AND the employment requirements. |
| 23. This memorandum was also referred to in Hara v. Minister of Citizenship and Immigration (26 August 1999), IMM-6307-98. I respectfully adopt the comments of Reed J. from paragraph 6 of the decision in that case: |
| ... it may be an error to state that "is usually required" means that the educational requirement must be met, except where there are significant and substantial factors that persuade the visa officer that the occupational requirements can be overcome. That may be too rigid an interpretation. Nevertheless, there must be some persuasive reason for thinking that the applicant will be able to hold employment in the intended occupation despite the fact that the "usual" educational qualifications are not present. |
[13] I agree entirely with Sharlow J.'s Reasons in Karathanos, and now turn to the specific facts of the matter before me.
[14] The evidence of the visa officer regarding the meaning of the words "usually required" is, to put it mildly, difficult to understand. Be that as it may, the visa officer appears to have taken the view that the applicant's degree in Chinese literature and history did not meet the employment requirements of N.O.C. 5122 and 5123. In the visa officer's view, the applicant's degree is not a degree in a "related discipline" as per N.O.C. 5122, nor a degree in a "related field" as per N.O.C. 5123.
[15] As a result of that conclusion, the visa officer formed the view that the applicant did not meet the employment requirements for N.O.C. 5122 and 5123. Although recognizing that the applicant had work experience as an editor and as a journalist, the visa officer never considered, in my view, whether that experience or any other consideration were such as to satisfy her that the applicant could be employed in her intended occupation even though she did not have the "required" educational qualification.
[16] In my view, the visa officer did not turn her mind to that issue. Firstly, she does not address it in her affidavit, nor is it raised or mentioned in her CAIPS notes. Secondly, discussion on the issue arose during the visa officer's examination, as a result of questions posed by counsel for the applicant. The following questions and answers appear at pages 54 and 55 of the transcript (pages 66 and 67 of the Application Record):
| Q. My question is this, you are satisfied that she does the job duties of a journalist, okay? |
| Q. You agree that it is not mandatory for you to even have a university degree or college diploma, according to N.O.C., and now you are saying, "I cannot assess her as a journalist because she does not meet the education requirements"? Like, something does not make sense. |
| A. Yes. I'm [sic] assess her under the educational factor -- I mean, the education to meet the employment requirements as required in the N.O.C. |
| Q. I don't want to harp on this anymore, but I think that you are telling me is that it is mandatory. You are telling me that those education requirements are mandatory. That is the only way I can make sense of your answer. Is that correct? |
| A. No. I think I already explained to you how I look at the case. |
| Q. Okay. So we will let -- so I am going to just recap one more time and then I am going to move on, because we have been on this subject for a while. |
| You are saying that the educational requirements are not mandatory. You are saying that you are satisfied that she performs the job duties of a journalist. But, nevertheless, you cannot assess her as a journalist because she does not meet the education requirements, right? That is your position? |
| A. Yes. I find that there is nothing exceptional in the applicant's case. |
| Q. In terms of what? Exceptional, with respect to what? |
| A. Exceptional of the employment requirements, as required under the N.O.C. |
[17] Mr. Anderson, counsel for the respondent, submitted that by the use of the term "exceptional", the visa officer must have been referring to the fact that there were no significant and substantial factors that would make it likely that the applicant would overcome the "usual" educational requirements. After careful review of the visa officer's viva voce evidence, her affidavit and her CAIPS notes, I am satisfied that the visa officer did not assess the applicant in the occupations of journalist, reporter and editor because of her conclusion that she did not meet the educational requirements. In other words, the visa officer never considered whether there were persuasive reasons to believe that the applicant would be able to hold employment in the intended occupations despite the fact that the "required" educational requirements were not present (As per Reed J. in Hara vs. M.C.I., supra, at paragraph 6) or, to use Mr. Anderson's words, the visa officer never considered whether there were significant and substantial factors that would make it likely that the applicant would overcome the educational requirements.
[18] In paragraph 19 of her affidavit, the visa officer makes the following statement:
| 19. As well, in paragraph 7 of her Affidavit, the Applicant asserts that I found her not to be journalist or editor. This is not true. I accepted the Applicant had work experience in her intended occupation as a Journalist. In addition, I also accepted the Applicant had work experience in the occupations as a Reporter and as an Editor. However, I determined the applicant did not have the qualifications to meet the employment requirements as specified in the N.O.C. for these three occupations. I had therefore assessed the Applicant for an occupation that she was qualified and had work experience i.e. as an Editorial Assistant N.O.C. 1452.3. However, the Applicant only scored 56 units in this occupation which were insufficient units of assessment to have here application for permanent residence approved. |
[19] The above statement makes it clear that the visa officer did not consider the applicant for the occupations of journalist, reporter and editor, on the ground that she "did not have the qualifications to meet the employment requirements as specified in the N.O.C. for these three occupations". By "qualifications to meet the employment requirements", I understand the visa officer to be saying that the applicant did not have the required university or bachelor's degree. That, in my view, brought the visa officer's analysis to an end in regard to the three occupations. As I have already indicated, the analysis ought to have gone forward to consider whether there existed significant and substantial factors that would make it likely that the applicant would be able to overcome the fact that she did not meet the educational requirements or, in the words of Reed J. in Hara, supra, whether there were "some persuasive reason for thinking that the applicant will be able to hold employment in the intended occupation, despite the fact that the `usual' educational qualifications are not present".
[20] Further, I am not satisfied, on the evidence, that the visa officer seriously -- if at all -- considered whether the applicant's degree in Chinese history and literature was a degree in a "related field" or a "related discipline". There is no evidence, except for an assertion to that effect in her affidavit and in her CAIPS notes, that the visa officer turned her mind to this matter. At page 58 of the transcript (page 70 of the Application Record), the visa officer gives the following answers to questions to posed by counsel for the applicant:
| Q. Okay. For the same reason that you gave before, that she did not meet the educational requirements, was that the only reason why you did not proceed with your assessment of her as a reporter? |
| Q. Okay. And we are just going to touch on this ever so briefly, because you mentioned it, you are not satisfied that a related discipline is Chinese Literature and History? |
| Q. Okay. What would be a related field to journalism? What is acceptable? |
| A. A related field will be the application that the applicant can acquire to equip herself to perform the jobs as stated in the job requirements in the intended occupation as a reporter. |
| Q. So you do not have an answer as to what is an acceptable related field? I mean, you cannot give me a concrete example? |
| A. It must be something that [sic] related to the study of the [sic] journalism that's stated in the employment requirements in the N.O.C. |
[21] The visa officer's answer to question 248 is that an acceptable related field is "something that [sic] related to the study of the [sic] journalism that's stated in the employment requirements in the N.O.C.". The educational requirements for N.O.C. 5123/Journalist is a university degree or college diploma in journalism or a related field. Those who take a university degree or a college diploma in journalism do not, unless I am mistaken, study journalism. They study those subjects which are considered, by the academic authorities, as useful and necessary in becoming a journalist, bearing in mind the various duties performed by journalists. As examples of these duties, I can simply list those duties which appear in N.O.C. 5123:
| Journalists perform some or all of the following duties: |
| · Collect local, national and international news through interviews, investigations and observation |
| · Write news stories for publication and broadcast |
| · Receive, analyze and verify news and other copy for accuracy |
| · Arrange for and conduct interviews as part of research and for radio and television programs |
| · Research nd report on developments in specialized fields such as medicine, science and technology |
| · Prepare regular feature columns and stories on specialized topics |
| · Write editorials and commentaries on topics of current interest to stimulate public interest and express the views of a publication or broadcasting station |
| · Write critical reviews of literary, musical and other artistic works based on knowledge, judgment and experience. |
| Journalists may specialize in print or non-print media, in particular issues such as political affairs or entertainment news, or in a particular geographic area. |
[22] On a reading of these duties, there is no doubt that a good command of languages is necessary. Presumably, knowledge of history, geography and of many other subjects will be highly relevant to the performance of journalistic duties. The question, then, is whether a degree in Chinese history and literature is a degree in a related field. I confess that I do not have the answer to the question, which I could give only if I were in a position to compare the subjects taken by a candidate for a degree in journalism with the subjects taken by the applicant in obtaining her degree.
[23] I am not saying, nor suggesting, that the visa officer ought to have obtained all of this information before reaching a decision, but I am suggesting that the visa officer ought to have turned her mind in the way that I am suggesting. I am of the view that the visa officer simply dismissed out of hand the applicant's degree as not being in a related field. That, in my view, was an error. So that there will be no misunderstanding, I am not conceding nor suggesting that the applicant's degree is a degree in a field related to journalism.
[24] Another issue raised by the applicant was whether the visa officer erred in concluding that she was only entitled to 13 units because her college's diplomas were not recognized in Hong Kong. In so concluding, the visa officer appears to have relied on the Overseas Processing Manual and on an internal memorandum regarding the assessment of educational qualifications in Hong Kong. In view of my findings and conclusions regarding the educational/employment requirements, I need not decide this issue. However, I will say that I have serious doubts as to the correctness of the position taken by the respondent on this issue. On the visa officer's rationale, even if the applicant's degree were recognized by all of the Canadian provinces, she would nonetheless not attribute 15 points to the applicant, because Hong Kong does not recognize the degree. I have difficulty with that position because the educational requirements exist to ensure that an immigrant stands a reasonable chance of getting employment in Canada. I will therefore leave the matter open for the visa officer who will reconsider this file.
[25] With respect to the visa officer not showing the memo to the applicant, I cannot agree with her position. In my view, the visa officer did not, in the circumstances, breach the duty of fairness. I therefore make mine the submissions made by Mr. Anderson in paragraphs 24 and 25 of the respondent's Memorandum of Fact of Law:
| 24. The duty of fairness owed by visa officers is limited. A visa officer need not advise an Applicant of his or her concerns when they stem from the Applicant's failure to show that he meets the criteria for admission. Fairness does not require the visa officer to apprise the Applicant of his or her concerns regarding the satisfaction of the criteria for admission. |
| 25. It is submitted that fairness did not require the visa officer to share the educational assessment memorandum with the Applicant. The memorandum is not from an external source. Secondly, it contains information that is a matter of public record - which institutions in Hong Kong can grant degrees. Finally, a disclosure would not have allowed the Applicant to allay the visa officer's concerns - knowing that the College could not confer degrees in Hong Kong would not have allowed the applicant to convince the visa officer that it could. The visa officer's concern was such that it not be disabused by what the Applicant could say. |
[26] For these reasons, this application for judicial review shall be allowed. The decision of designated officer Judyanna Ng, dated April 9, 1999 will be set aside and the matter will be returned to a different officer for reconsideration. There shall be no costs.
Marc Nadon
JUDGE
OTTAWA, Ontario
December 15, 2000