Date: 20000316
Docket: IMM-4954-98
BETWEEN:
MI XIA YANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] Mi Xia Yang, a citizen of the People"s Republic of China, seeks judicial review of the refusal of her application for permanent residence as an independent immigrant in her intended occupations as a mechanical engineer (NOC 2132) and a chemical engineer (NOC 2134). The visa officer determined that Ms. Yang did not qualify as a chemical engineer. She was then assessed as a chemical engineering technologist (NOC 2211) for which she was awarded 60 units.
[2] Ms. Yang was interviewed in Hong Kong on May 7, 1998 and the visa officer"s letter of decision is dated May 8, 1998.
[3] This application was heard together with two other similar proceedings under court file nos. IMM-4952-98 and IMM-4953-98. The applicants, represented by the same counsel, raise one issue common to the three files. There are sufficient other factual differences among the cases, however, to warrant three separate sets of reasons.
[4] In each of the three cases, counsel for the applicants argues that the visa officer did not give sufficient weight to the Informal Assessment of Qualifications for Engineers issued by the Canadian Council of Professional Engineers ("CCPE").
[5] The informal assessment from the CCPE is obtained upon payment of $175. Candidates complete a short form which discloses their engineering education and their certification as a professional engineer in their country of citizenship. The CCPE also requests applicants to submit a short curriculum vitae.
[6] The informal assessment by the CCPE can have one of two results: (1) "Qualifications not acceptable" or (2) "Qualifications appear acceptable for immigration purposes".
[7] In this case, the CCPE accepted the applicant"s qualifications for immigration purposes.
[8] The parties do not agree on the weight to be attached to the CCPE informal assessment.
[9] The applicant relies on the CCPE form which explains the purpose of the informal assessment:
| ... The purpose of this assessment is to evaluate the likelihood of acceptance into the examination program by a provincial or territorial engineering association. |
| A positive outcome is valuable advice to visa officers. They take it into account when they assess your application for permanent residence in Canada. It does not guarantee they will approve your application, but it will be a factor in your favour. |
| A negative outcome is valuable advice to you. It tells you that applying to immigrate to Canada with the intention of working there as an engineer is unrealistic. |
| The assessment result is used for occupational designation for immigration purposes only. |
[10] The respondent"s Selection Manual, a departmental guideline prepared for visa officers, deals with the selection of professional engineers and the CCPE informal assessment in these terms (Chapter 4 - Independent Immigrants):
| 4.40 SELECTION OF PROFESSIONAL ENGINEERS, ENGINEERING TECHNOLOGISTS AND TECHNICIANS |
| 1) Processing Procedures at Posts Abroad |
| a) ... In most instances, this advice enables the post abroad to determine if the applicant can be assigned an occupational coding as a professional engineer, engineering technologist, or engineering technician for immigrant selection purposes. |
...
| 2) Informal Assessment |
| f) On receipt of the CCPE ... assessment, the immigrant processing procedure is as follows: |
| CCPE |
| Box 1 - will result in refusal as an engineer; |
| Box 2 - will result in immigration acceptance as an engineer, assuming the applicant otherwise meets selection criteria. |
There is a corresponding statement for assessments by the Canadian Council of Technicians and Technologists.
[1] Counsel for the applicant argues, on the basis of the respondent"s Selection Manual, that a positive CCPE assessment will be considered to be determinative of a person"s engineering qualifications or, at a minimum, will require visa officers to explain why they disagree with the CCPE assessment that the applicant"s "qualifications appear acceptable for immigration purposes".
[2] The respondent argues that the applicant"s reliance on the CCPE informal assessment is misplaced. Both the statements in the CCPE form and in the respondent"s Selection Manual must be read in the light of the statutory requirement that visa officers must assess all aspects of the application for permanent residence in accordance with the different factors set out in Schedule 1 of the Immigration Regulations, 1978 , SOR/78-172 as amended.
[3] In her affidavit evidence in this case, the visa officer explained her understanding that the CCPE assessment is not determinative of the interview results:
| 12. The Applicant had received a positive Canadian Council of Professional Engineers ("CCPE") assessment for training as an engineer, which is quite common in visa applications from persons applying as engineers. However, this assessment was not binding on me and the purpose of the interview was to focus on assessing the quality of the Applicant"s work experience in her intended occupation and on her personal suitability. Contrary to the allegation in the Affidavit of Terry Jackman, I know of many applications which have been refused by visa officers, despite the presence of a positive CCPE assessment. Alternatively, I and other visa officers, have also approved numerous visa applications for persons applying as Engineers where it has been determined at interview that their occupations, despite positive CCPE assessments, more appropriately fit into the category of Engineering Technologists. In other words, the CCPE assessment is not determinative of the interview results and applicants are clearly informed of this in the correspondence which they receive from the CCPE. [Emphasis added.] |
[4] There is insufficient evidence before me to support the applicant"s submission that the CCPE informal assessment is determinative of her qualifications as a mechanical or chemical engineer under the National Occupational Classification ("NOC"). The visa officer was not cross-examined. The evidence concerning the CCPE process is limited to the application form and an attached instruction sheet which states that a positive evaluation "will be a factor in your favour" but will not guarantee the approval of the application for permanent residence. Similarly, the language of the Selection Manual is equivocal. It suggests that a positive CCPE assessment will result in immigration acceptance as an engineer, "assuming the applicant otherwise meets [the] selection criteria".
[5] The issue, which I leave open for another case with more complete evidence, is how the arrangements between the respondent and the CCPE affect the visa officer"s determination concerning an applicant"s qualifications as an engineer. Is the CCPE assessment a requirement imposed by the respondent? What is the extent of the CCPE analysis of the applicant"s professional credentials? What is the relationship between the CCPE positive assessment and the criteria set out in the National Occupational Classification? These are some of the factual questions relevant to a more precise determination of the probative value of the CCPE assessment in an engineer"s application for permanent residence.
[6] The applicant is correct, however, in asserting that the CCPE assessment forms part of the information, together with the applicant"s curriculum vitae, description of employment tasks and letter of reference, which must be considered by the visa officer in determining whether the candidate meets the NOC criteria for engineers. Put differently, the visa officer"s negative decision concerning the applicant"s classification as an engineer must have been made with due regard for the information supplied by the applicant, including the CCPE assessment.
[7] In 1985, Ms. Yang obtained a Bachelor of Engineering degree from Northwest University in Shaanxi, China. Since her graduation, she has worked with Luoyang Petro-Chemical Engineering Corp., in the words of her employer"s letter of reference, "as an equipment designer for chemical engineering". In her curriculum vitae, the applicant described her job title as mechanical engineer.
[8] The letter of reference from the applicant"s employer refers to her participation in "the Furfural treating tower for integrated FCC-aromatic extraction process unit of refinery, in which she impressed me by her independently solving the corrosion problem." [Emphasis added.] The employer also refers to the applicant"s ability to "take responsibility in large and complicated equipment design and planning." Finally, the letter mentions two prizes awarded to the applicant concerning the aromatic extraction tower project.
[9] The applicant"s curriculum vitae also refers to the prizes she won for her participation in the aromatic extraction tower. This is the same project the applicant referred to in her written test, when asked by the visa officer to describe her involvement in the solution of a challenging engineering problem.
[10] It is not for this Court to determine whether the applicant is a qualified engineer and, in particular, whether her involvement in the aromatic extraction tower project establishes her credentials for that profession. However, the visa officer was required to consider the documents in support of the applicant"s professional credentials. More particularly, in the circumstances of this case, she ought to have focussed on the specific project referred to in the applicant"s curriculum vitae, in her employer"s letter of reference and in her written test. Her failure to do so requires this Court"s intervention.
[11] The visa officer"s error can be further understood upon review of her evidence. In her affidavit, the visa officer noted that she did not consider that an interpreter was required during the interview, although one was "on call as needed", because the applicant had sufficient English language ability to communicate "at a basic level". The applicant was awarded two units for the language factor. The visa officer then characterized the applicant"s responses as vague, unclear and not indicative of her individual responsibility for projects. In my opinion, the visa officer could only reach such a conclusion after challenging the applicant concerning her involvement in the aromatic extraction tower project. It would have been relatively simple, it seems to me, to verify whether this participation was indicative of her credentials as an engineer. This verification was required, in my view, particularly with the CCPE positive informal assessment of the applicant"s qualifications as an engineer.
[12] Finally, it is not clear how the applicant"s "vague responses" were sufficient to satisfy the visa officer that she could qualify as a chemical technologist but not as a chemical or mechanical engineer.
[13] As a different visa officer will be called upon to reconsider the applicant"s qualifications as an engineer, I have chosen not to deal with her counsel"s submissions concerning personal suitability.
[14] For these reasons, this application for judicial review will be granted. The decision under review will be set aside and the matter referred for redetermination by a different visa officer. The parties may file written submissions concerning the certification of a serious question within seven days of the date of these reasons.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
March 16, 2000