Ottawa, Ontario, October 11, 2005
PRESENT: The Honourable Madam Justice Snider
YUAN CHEN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicant, Mr. Yuan Chen, a Chinese national, applied for a temporary work permit to enter and remain in Canada for one year. The Applicant, who is 60 years old, speaks Chinese but not English. He had been offered a position as a warehouse manager for a Chinese luxury food company that is owned and operated by his nephew. This company, located in Markham, Ontario, imports, stores, and sells exotic foods. The Applicant was interviewed by visa officer Fraser Mark (the "visa officer") on May 28, 2004, with the aid of an interpreter. On May 31, 2004, the visa officer refused to issue the Applicant a work permit on the basis that:
- "You have not satisfied me that you will leave Canada by the end of the period authorized for your stay."
- "You have not satisfied me that you have the qualification and experience for the employment for which the work permit is sought."
[2] The Applicant seeks judicial review of the decision of the visa officer.
Issues
[3] The issues in this application are as follows:
- In concluding that the Applicant would not be able to perform the work sought, did the visa officer err by relying on irrelevant considerations or by ignoring evidence related to the need to speak English as a requirement for the employment in Canada?
- Did the visa officer err in concluding that the Applicant would not leave Canada upon the expiry of his work permit by failing to put his concerns to the Applicant, by relying on irrelevant considerations or by failing to take into account relevant considerations?
Background
[4] To work in Canada, a foreign national must obtain a work permit. The issuance of work permits is governed by s. 200(1) of the Immigration and Refugee Protection Regulations (S0R/2002-227) (the Regulations) which provides that a work permit "shall" be issued if, following an examination, a visa officer is satisfied that he meets all of the requirements of that section. Of relevance to this application, the Applicant had to satisfy the officer that he "will leave Canada by the end of the period authorized for their stay" (s. 200(1)(b)). In addition, s. 200(3)(a) provides that an officer shall not issue a work permit to a foreign national if "there are reasonable grounds to believe that the foreign national is unable to perform the work sought". Both requirements must be met; failure to satisfy a visa officer of either of these matters will result in a denial of an application for a work permit. It follows that, to succeed in this judicial review, the Applicant must be successful on both of the issues set out above.
[5] The Applicant's process to come to Canada commenced with a job offer from Cheong Hing Dry Seafood Ltd. In correspondence with Human Resources Development Canada ("HRDC"), his duties were described as follows:
· Plan, organize direct and control the operations of a warehouse.
· Prepare reports and statistics related to areas of responsibility.
· Liaise with Purchasing Dept., Sales Dept. and Management.
· Plan, organize and direct administrative services such as cleaning, maintenance, safety inspections.
· Oversee the maintenance and repair of machinery, equipment and electrical systems.
· Direct and advise staff.
. . .
The position entails planning organizing, directing and controlling operations of a warehouse for dry Chinese seafood and other dry Chinese luxury food items. The foreign worker must have the general learning ability to plan and organize the operation of commercial facilities, verbal and numerical ability to prepare and oversee the preparation of reports and statistics.
. . .
. . . The employer plans to train Canadian and permanent residents for the position to be filled by the foreign workers. The workers will be required to transfer his special knowledge of dry Chinese Seafood and warehouse operation. . . . The foreign workers will be training the new staff.
Analysis
(a) Standard of Review
[6] The discretionary decision of the visa officer exercising his statutory duty attracts a high level of deference. In the words of Justice MacIntyre in the Supreme Court of Canada decision of Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2 at 7-8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. 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.
(b) Issue #1: English Requirement
[7] The Applicant was interviewed by the visa officer on May 28, 2004. The Computer Assisted System ("CAIPS") notes were entered that same day by the visa officer. In those notes, the visa officer listed his concerns and findings, summarized as follows:
- The Applicant "had considerable difficulty saying exactly what he would be doing and I do not believe he actually knows."
- The Applicant's method of management was to defer work towards other, more specialized employees, and he did not demonstrate the knowledge to personally fulfil his duties of management.
- English is a "logical requirement" of his duty to train a replacement for his position.
- Although the employer did not impose a requirement for English language ability, HRDC did list English language skill as a duty of the position.
- The Applicant has "no computer skills at all".
- The Applicant has limited experience in a warehouse and that experience was in a warehouse that "only contained raw leather plus leather cutting equipment".
In sum, the officer concluded that the Applicant "is clearly not capable of supervising a modern warehouse".
[8] The Applicant submits that the officer erroneously relied on the Applicant's inability to speak English, when neither the employer nor HRDC stated that English was a job requirement.
[9] The Applicant is correct that the employer did not specify that English was a requirement. In the letter written on his behalf to HRDC, dated November 18, 2003, there is no mention of language whatsoever. In his application for a work permit, submitted under cover letter of February 24, 2005, to the Canadian Consulate General, Immigration Section, Hong Kong, it is stated that:
He does not speak English. However, his employer, all co-workers, suppliers and customers are Chinese. His lack of command of the English language is not a handicap for this job.
[10] There is some confusion in the record as to what HRDC stated about language requirements. In its letter to the Applicant dated January 19, 2004, HRDC confirmed the offer of employment and advised the Applicant that they had transmitted a positive Labour Market Opinion to Citizenship and Immigration Canada (CIC). In the letter, no mention is made of language requirements. However, in the validation notes contained in an entry dated March 11, 2004 on CAIPS, the following general notation is made:
On the temporary foreign worker application . . . the employer has indicated the [foreign worker] needs only Chinese as a language. Newmarket HRCC contacted the employer to clarify & ER stated all the employees speak Chinese thus English is not requirement.
The same notation contains a contrary indication when it describes the duties of the position:
Must speak English and Chinese, plan, organize, direct and control the operations of a warehouse, prepare reports and statistics related to areas of responsibility, liaise with purchasing department, sales and [this portion of the entry ends].
[11] As can be seen from the visa officer's notes, he was of the view that HRDC had imposed an English knowledge requirement on the position and that was included as one of the reasons for rejecting the application. In light of the apparent contradiction in the HRDC validation, it would have been preferable for the visa officer to conduct further inquiries on whether language was or was not a requirement from HRDC perspective. However, even if the officer was incorrect in his statement that English was a requirement imposed by HRDC, this error must be examined in the context of the visa officer's statutory duty and his reasons.
[12] In all applications, the visa officer is under a duty to examine all of the relevant evidence before him in order to come to an independent assessment of whether there are reasonable grounds to believe that the Applicant is unable to perform the work (Regulations, s. 200(3)(a)). The officer cannot be bound by a statement by HRDC that English is or is not required; he cannot delegate his decision making function to a third party such as HRDC. Conversely, a statement by an applicant or employer that English is not required cannot be binding on the visa officer. The officer must carry out his own evaluation based on a weighing of all of the evidence before him.
[13] In this case, the visa officer did not simply state that English was a requirement imposed by HRDC. Rather, as shown in the CAIPS notes, the visa officer explains that he cannot foresee how the Applicant would train his replacement, as the Applicant is required to do as part of his duties. In other words, the visa officer viewed the ability to communicate in English as relevant to his assessment of whether the Applicant would be able to perform the work duties. The officer's findings in that regard are logical and are not based upon irrelevant considerations. While the officer may have erred by stating that English was an HRDC requirement and even relied to some extent on this error, he also considered the need for English independently of the HRDC validation.
[14] Further, the reasons in the CAIPS notes reflect that the visa officer examined and relied on a number of considerations and not just on the language profile of the Applicant. With the possible exception of the HRDC language requirement, each of the findings of the visa officer is amply supported by the evidence. Although the Applicant argues that computer skills are not needed, it was not unreasonable of the officer to consider computer skills to be an important skill for managing a modern warehouse and for preparing statistical reports. The officer describes in sufficient detail (albeit not in question and answer format) the types of questions he asked the Applicant and highlights gaps in the Applicant's knowledge and abilities. The officer's conclusion, "[h]e is clearly not capable of supervising a modern warehouse" follows from his findings in the notes. There is no reviewable error.
(c) Issue #2: Return to Canada
[15] As the Applicant had to satisfy both s. 200(3)(a) and s. 200(1)(b) of the Regulations, any error on only one of these determinations would be immaterial to the outcome of this judicial review. Accordingly, the first issue is determinative in this application and there is no need to address the second issue.
Conclusion
[16] For these reasons, the application will be dismissed. Neither party proposed a question for certification. None will be certified.
ORDER
This Court orders that:
1. The application for judicial review is dismissed; and
2. No question of general importance is certified.
"Judith A. Snider"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7054-04
STYLE OF CAUSE: YUAN CHEN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 3, 2005
APPEARANCES:
Mr. Cecil L. Rotenberg, Q.C FOR THE APPLICANT
Mr. John Loncar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Cecil L. Rotenberg, Q.C. FOR THE APPLICANT
Barrister & Solicitor
John H. Sims, Q.C. FOR THE RESPONDENT