Date: 20000907
Docket: IMM-1841-99
BETWEEN:
JIAN FENG CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Mr. Jian Feng Chen, the applicant, is a 40 year old citizen of China who applied for permanent residence in Canada. His application was made under the Independent-Skilled Worker category as a Translator, National Occupational Classification ("NOC") 5125.
[2] By letter dated March 25, 1999, the visa officer charged with responsibility for reviewing Mr. Chen's application informed Mr. Chen that his application was refused.
[3] Mr. Chen now brings this application for judicial review in respect of the visa officer's decision and seeks an order quashing that decision.
FACTS
[4] In support of his application for permanent residence, Mr. Chen submitted a copy of his university degree, a transcript of his undergraduate studies, and an employment reference letter. Mr. Chen was interviewed by the visa officer. In refusing Mr. Chen's visa application, the officer stated that Mr. Chen was assessed in his intended occupation of a translator. However, the visa officer found that Mr. Chen did not meet the training and entry requirements of a translator as classified in the NOC.
ISSUES
[5] Mr. Chen raised three issues with respect to the decision denying his application for permanent residence. They were:
| (1) Did the visa officer fetter her discretion by requiring Mr. Chen to have a degree in translation or the equivalent in order to qualify as a translator? |
| (2) Did the visa officer deny the duty of fairness owed to Mr. Chen by interpreting too narrowly the words "or a related discipline" as those words are found in the NOC classification 5125?; and |
| (3) Did the visa officer deny the duty of fairness owed to Mr. Chen by not providing him with a reasonable opportunity to respond to her concern that a certificate he provided from a University was not genuine? |
ANALYSIS
(i) Did the visa officer fetter her discretion by requiring the applicant to have a degree in translation or the equivalent?
[6] The relevant NOC description stipulates the following requirements:
5125 Translators, Terminologists and Interpreters
...
| Employment requirements |
| A bachelor's degree in translation or a related discipline is required, and specialization in interpretation, translation and terminology at the graduate level is usually required. |
[7] The relevant entry in the CAIPS notes made by the visa officer is as follows:
| OCCUPATION: PI INTENDED OCCUPATION IS TRANSLATOR. |
| NOC REQUIRES BACHELOR IN TRANSLATION OR RELATED DISCIPLINE, AS WELL AS SPECIALIZATION IN INTERPRETATION, TRANSLATION, AND TERMINOLOGY AT THE GRADUATE LEVEL. |
| PI HAS BACHELOR OF ARTS IN ENGLISH, WITH 2 TRANSLATION COURSES OVER 4 YRS COURSE OF STUDY. THIS DOES NOT MEET NOC REQUIREMENTS. |
[8] Counsel for the Minister conceded that the visa officer erred in equating specialization in interpretation, translation and terminology at the graduate level with a requirement under the NOC. Notwithstanding, it was submitted that such an error was immaterial to the visa officer's decision that the applicant did not meet the training and entry requirements for his intended occupation. I agree. In this case, the visa officer's decision was not based on the absence of specialization at the graduate level.
[9] As to whether the visa officer required a degree equivalent to a translation degree, the CAIPS notes do show that the visa officer's analysis recognized that it was necessary for her to consider whether or not Mr. Chen's undergraduate degree in English was a degree in a "related discipline". Having correctly outlined the relevant NOC requirements, the visa officer then considered the particulars of Mr. Chen's undergraduate degree, but found it wanting. Such an assessment is properly within the visa officer's mandate and I can find no reviewable error in her assessment.
[10] I conclude that the visa officer correctly interpreted the employment requirements and did not fetter her discretion as Mr. Chen asserted.
(ii) Did the visa officer deny the duty of fairness by interpreting the words "or a related discipline" too narrowly?
[11] In my view, it was reasonably open to the visa officer in the present case to find that because Mr. Chen completed only two courses in translation over a four year period of study, with no graduate level specialization, that his undergraduate degree in English fell short of meeting the NOC requirements of a translator. I accept the argument of counsel for the respondent that no duty of fairness was breached by the officer in reaching this conclusion.
(iii) Did the visa officer breach the duty of fairness by not providing Mr. Chen with a reasonable opportunity to respond to her concerns with respect to his University certificate?
[12] The relevant extract from the CAIPS notes provides that:
| ADDITIONALLY, PI HAS PRESENTED CERTIFICATE OF DUBIOUS ORIGIN, STATING HE HAS TAKEN ADVANCED INTERP AND TRANSLATION COURSES FROM SEPT 1993 TO JULY 1994 AT THE FOREIGN LANGUAGE DEPARTMENT OF SOUTHEAST UNIV. ON FILE. THIS CERT IS COMPUTER GENERATED ON PINK COPY PAPER AND DOES NOT RESEMBLE AN AUTHENTIC DOCUMENT, BASED ON MY EXPERIENCE IN INTERVIEWING CHINESE APPLICANTS AND SEEING CHINESE DOCUMENTS FOR APPROXIMATELY THE PAST 2 YRS. |
| I ADVISE PI OF MY CONCERNS REGARDING THIS DOCUMENT. PI STATES THAT THIS WAS TRAINING SPONSORED BY MOFERT: MINISTRY OF FOREIGN ECONOMIC TRADE. PI HAS NO TRANSCRIPT OR OTHER PROOF WITH WHICH TO SUBSTANTIATE THE AUTHENTICITY OF THIS DOCUMENT. |
[13] This entry shows that the visa officer examined the document submitted by Mr. Chen at his interview, and that the visa officer then informed Mr. Chen of her concerns with respect to the document. The visa officer thereby provided Mr. Chen with a reasonable opportunity to disabuse the visa officer of her concerns. Mr. Chen was not able to do that; nor is there any indication in either the CAIPS notes, or in Mr. Chen's affidavit filed in support of the application for judicial review, that he requested any additional time for the purpose of addressing the visa officer's concerns.
[14] On those facts, I conclude that it was reasonably open to the visa officer to conclude that the document at issue was entitled to little weight.
[15] For these reasons, I have concluded that the application for judicial review must be dismissed.
[16] With respect to certification of a question, counsel for Mr. Chen referred me to two recent decisions of this Court on similar facts. The first was Dai v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 512, IMM-749-99 (April 19, 2000) (F.C.T.D.) while the second was Chen v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 613, IMM-1916-99 (April 26, 2000) (F.C.T.D.). Counsel submitted that these cases show a divergence in the trial division on the issue of whether the determination of what constitutes a related discipline is a question of fact alone, or a question of mixed fact and law. Mr. Chen's counsel submitted that a question should be certified raising that issue. Counsel for the Minister indicated that this was not a significant issue, and that the issue was not raised by Mr. Chen in his material filed with the Court.
[17] In my view, the recent decisions cited by counsel for Mr. Chen each turned on the specific facts then before the Court. For that reason, and because this issue was not specifically raised in argument before the Court, I will not certify the question.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
September 7, 2000