Date: 19990820
Docket: IMM-3557-98
BETWEEN:
LI YA LIANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application for judicial review of the decision of Judyanna Ng (the Visa Officer), whereby the application for permanent residence of Li Ya Liang (the applicant) was refused.
THE FACTS
[2] The applicant is a citizen of the People"s Republic of China. She applied for permanent residence as an Assisted Relative, under the occupation of "Executive Secretary" -- defined in the Canadian Classification and Dictionary of Occupations (the CCDO) at 4111-111.
[3] Her application was submitted to the Canadian Consulate General in Hong Kong, on September 25, 1997, and reviewed on November 4, 1997. A selection interview was held on January 12, 1998.
[4] The interview was conducted in English and the applicant was awarded (9) units of assessment for her abilities in English, per Schedule I of the Immigration Regulations.
[5] In support of her application, the applicant submitted a three year Diploma in English, along with a one year part-time certificate in English. She also submitted a letter from her employer, Asco General Supplies (Far East) Ltd., stating that she had been employed as an Executive Secretary since March 1996.
[6] At the time of the interview, the applicant had not submitted any documentation indicating that she had received formal training as a secretary.
[7] Due to the lack of documentation, the applicant was assessed as an Administrative Assistant (CCDO 4197-114), rather than an Executive Secretary or Secretary (CCDO 4111-110). She received 54 units of assessment and her application was refused on January 13, 1998, the day after interview.
[8] A letter dated February 9, 1998, sent to the Visa Officer by the applicant"s counsel, provided a copy of a secretary training program certificate issued to the applicant in July 1997. A response was prepared on February 12, 1998, indicating that the application had been refused and that re-consideration was not possible.
POSITIONS OF THE PARTIES
[9] The applicant alleges she informed the Visa Officer, at the interview, that she did not have the secretary training program certificate on her person but that she would send it in, after the interview. Therefore, she submits that the Visa Officer breached her duty of procedural fairness in rejecting her application, without considering the certificate.
[10] The applicant also submits that the Visa Officer erred in law by misapplying the occupational descriptions of Executive Secretary and Secretary. Firstly, the definition states that, in order to qualify as an Executive Secretary, an individual may have performed "any"of the duties listed, rather than "all". Therefore, the applicant argues, the Visa Officer erred in requiring the applicant to have had experience in taking shorthand.
[11] Thirdly, the applicant argues that the words "normally requires", with reference to the training and educational requirements, do not mean that these requirements are mandatory. As a result, the Visa Officer erred in law when she concluded that the applicant did not qualify as an Executive Secretary or a Secretary, despite her work experience, because she did not have any formal secretarial training.
[12] Finally, the applicant contends that if the assessment had been conducted according to law, she would have received more units for personal suitability.
[13] The respondent counters that the Visa Officer"s decision was based on the information and the documents given to her by the applicant before and at the interview. Furthermore, the Visa Officer was under no obligation to consider additional evidence submitted after she had rendered her decision. The application was assessed based on the information before the Visa Officer at the time the decision was made.
[14] Secondly, the respondent takes the position that the definitions of Executive Secretary and Secretary require the applicant to have experience in taking dictation. This requirement is listed before the various other duties and before the phrase "any of the following". Therefore, dictation is a mandatory requirement of the two definitions.
[15] Finally, the respondent submits that the Visa Officer considered the applicant"s lack of knowledge of Canada and the current job market in properly assessing her personal suitability. For these reasons, it is submitted, the applicant was correctly awarded 05 units under this category, which corresponds to average personal suitability.
ANALYSIS
Procedural Fairness
[16] It is trite law that an applicant may only seek judicial review based on the evidence before the administrative board or other tribunal at the time of the board"s decision.
[17] In the present case, the Visa Officer"s decision was communicated to the applicant in a letter dated January 13, 1998. Whereas the applicant"s secretary training program certificate was sent to the Visa Officer, attached to a letter dated February 9, 1998, almost four weeks later. Clearly this document was not before the Visa Officer at the time of her decision.
[18] In her affidavit, the applicant alleges the Visa Officer asked to see this document at the interview and that she informed the Visa Officer that she could send it to her right away.1 In response, the Visa Officer denies this allegation and affirms that she specifically asked the applicant whether she had any additional documents or further comments to make and the applicant replied that she did not.2
[19] After a careful reading of the evidence, including the actual application forms and the letter of Mr. Isaac Lee, which accompanied her application3, I find that the applicant did not indicate to the Visa Officer that she had received a secretarial certificate. Nowhere in the aforementioned documents is this training raised, despite its obvious relevance and despite the fact that many other details about her career as a secretary were raised. I find it implausible that this document would not have been mentioned anywhere in the application or the Visa Officer"s notes, particularly if it was raised at the interview.
[20] Consequently, the certificate was not before the Visa Officer at the time she rendered her decision. The Visa Officer did not breach her duty of procedural fairness when she refused to reconsider her decision based on the submission of the certificate.
Executive Secretary/Secretary
a) "any of the following"
[21] The CCDO descriptions of Secretary and Executive Secretary read as follows:
| 4111-111 EXECUTIVE SECRETARY (clerical) |
| Performs secretarial and administrative duties for office executive: |
| Performs duties similar to those of 4111-110 SECRETARY (clerical) utilizing secretarial experience and knowledge of office administration and public relations. Arranges conferences and other meetings and researches and compiles information for employer. Acts on routine matters affecting day to day operations of organization, in employer"s absence. May perform other duties including supervising office workers. |
| 4111-110 SECRETARY (clerical) |
| Schedules appointments, gives information to callers, takes dictation and relieves employer of clerical work and minor administrative and business details, performing any of the following duties: |
| Reads and routes incoming mail. Locates and attaches appropriate file to correspondence to be answered by employer. Takes dictation in shorthand or on stenotype machine, and transcribes on typewriter from notes or voice recordings. Composes and types correspondence. Files correspondence and other records. Answers telephone and gives information to caller, or routes call to appropriate official, and places outgoing calls. Schedules appointments for employer and reminds him when they are due. Greets visitors, ascertains nature of business and conducts visitors to employer or to appropriate person. Compiles and types statistical reports. Records minutes of meetings. |
| May keep confidential personnel records. May arrange travel schedules and reservations. May be designated according to type of work performed; for example. (Emphasis added). |
[22] The respondent submits that the words "takes dictation" appear before the words "performing any of the following duties" and, as a result, taking dictation and having knowledge of shorthand are mandatory requirements of the occupation. I cannot accept this argument.
[23] In the next paragraph of the description, the words "takes dictation" are expanded to "takes dictation in shorthand or on stenotype machine, and transcribes on typewriter from notes or voice recordings." If one accepts the respondent"s argument, this would amount to needless repetition. In my opinion, the first paragraph of the description is simply a general overview of the occupation, while the second paragraph illustrates the various duties which may qualify. Experience taking dictation or knowledge of shorthand are not mandatory requirements to being a secretary. Although they may be essential skills for certain positions, they are not mandatory, given the present wording of the CCDO.
[24] Therefore, the Visa Officer erred in describing shorthand as a requirement of the CCDO. Nonetheless, the Visa Officer"s decision. in my opinion, did not turn on the applicant"s lack of dictation skills or knowledge of shorthand, but on her lack of formal training as a secretary.
b) "normally requires"
[25] The CCDO indicates the training and entry requirements for a secretary are as follows:
| Secretaries and Stenographers normally require: |
| - ten to twelve years of general education; and |
| - three to six months of training in a business college or one year in a special commercial course at high school; |
| OR |
| - graduation from a secondary commercial school. |
[26] The Visa Officer found that absent any formal training, the applicant did not possess the necessary education requirements to satisfy the CCDO. The applicant, on the other hand, submits that the words "normally require" indicate a certain flexibility. If the education requirements were meant to be mandatory, the drafter would have simply said "require" and not "normally require".
[27] The parties were asked to submit extra argument on this point. The respondent submitted two decisions by Pinard J., both of which deal with the mandatory nature of the educational requirements for Executive Secretaries.4 In both cases, Pinard J. found that the Visa Officer"s decisions to treat the educational requirements as binding called for substantial deference.
[28] In Cai, Pinard J. wrote that where the Visa Officer determined that the applicant did not meet the criteria, it was not unreasonable for him or her to hold that the applicant cannot be further assessed in that occupational category.
| It is well established that the onus is on the applicant to fully satisfy the visa officer of the existence of all of the positive ingredients to his or her application. Accordingly, provided that the visa officer does not act unfairly, and/or makes an error of law apparent on the face of the record in arriving at his or her decision (such as considering extraneous criteria not contained in the CCDO definition), that decision is entitled to a significant amount of curial deference... |
| If, however, the visa officer ascertains that an applicant does not meet the criteria for the occupation under which he or she seeks to be assessed (in this case the formal training requirements for the occupation of executive secretary) as stipulated by the definition in the CCDO, it is not unreasonable, in my opinion, for the visa officer to hold that the applicant cannot be further assessed in that occupational category.5 |
[29] Similarly, in Ou, Pinard J. stated that the formal training requirements cannot be ignored:
| In my opinion, the applicant"s argument is without merit. The formal training requirements set out for certain occupations in the CCDO cannot simply be ignored. Nor is it inherently unreasonable for a visa officer to decline to further assess an applicant in an occupational category for which he or she has already determined the applicant to be ineligible because the individual lacks the requisite training. |
| It must be recalled that visa officers are specifically mandated to refer to the CCDO by the wording of Factor 2, Schedule I of the Regulations, which provides for the allocation of units of assessment for Specific Vocational Preparation.6 |
[30] The applicant submits that both of these cases are distinguishable from the present case. In Cai and Ou, the visa officers refused to continue their assessments after determining that the respective applicants lacked the requisite training. In the present case, the Visa Officer refused the application since the applicant did not have the minimum training qualifications and for not having knowledge of shorthand.
[31] The words "normally requires" are indicative of the discretion given to the Visa Officer. Nonetheless, I agree with Pinard J. - the requirements cannot simply be ignored. To my mind, there is a distinction between formal training and work experience. This separation is indicated by the two separate factors to be considered in Schedule I.
[32] The applicant may not collapse the two factors together and argue that her work experience ought to be considered "on-the-job training". With respect to the applicant"s claim that she has completed "some career development courses, including secretarial and computer training"7, there was no evidence in the file to support this claim.
[33] In light of all this, I find it was open to the Visa Officer to conclude that the applicant did not have the formal training required to qualify as an Executive Secretary or a Secretary.
Personal Suitability
[34] Here again, the caselaw has clearly established that the determination of personal suitability is at the discretion of the Visa Officer.8 The only limitations are that the finding must be directed at establishing oneself in Canada, in the economic sense9, and that the finding must be made in good faith.
[35] In the present case, the Visa Officer has indicated that the applicant lacked knowledge of Canada and had no knowledge of the employment situation in Canada. She appeared to be completely reliant on her family members residing in Canada to make the arrangements for her. In the opinion of the Visa Officer, this lack of knowledge was commensurate with an average personal suitability. Consequently, she awarded the applicant 05 units out of a possible 10.
[36] Upon reading the file and the submissions of counsel, I am not convinced that the Visa Officer"s assessment of the applicant"s personal suitability was patently unreasonable, capricious, arbitrary or made in bad faith. As such, the Court will not intervene.
CONCLUSION
| [37] For all the foregoing reasons, the application for judicial review is denied. |
| [38] Neither party had a question for certification. |
| "Max M. Teitelbaum" |
__________________________________
J.F.C.C.
Ottawa, Ontario
August 20, 1999
__________________1 Affidavit of Li Ya Liang (sworn 28 July 1998) at para 22.
2 Affidavit of Judyanna S.H. Ng (sworn 10 September 1998) at para 17.
3 Attached as Exhibit "F" to Ms. Liang"s affidavit, supra note 1.
4 Cai v. Canada (MCI) (17 January 1997), IMM-883-96 (F.C.T.D.) and Ou v. Canada (MCI) (1997), 39 Imm.L.R. (2d) 233 (F.C.T.D.).
5 Cai, supra note 4 at para 7.
6 Ou, supra note 4 at para 8-9.
7 Supra note 1 at para 19.
8 Gill v. Canada (MCI) (1996), 34 Imm. L.R. (2d) 127 at 128 (F.C.T.D.).
9 Chen v. Canada (MEI), [1991] 3 F.C. 350 (T.D.); rev"d [1994] 1 F.C. 639 (C.A.); aff"d [1995] 1 S.C.R. 725.