Date: 20001031
Docket: IMM-659-00
BETWEEN:
XIAO ZHONG LIAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS, J.
[1] This is an application for judicial review of a decision dated December 21, 1999 of Mrs. Lily Chau, Designated Immigration Officer (the "visa officer") of the Canadian Consulate General of Canada in Hong Kong, People's Republic of China, refusing the applicant's application for permanent residence in Canada.
FACTS
[2] The applicant is a 38 year old citizen of the People's Republic of China. She applied
as a permanent resident under the Independent category as an Electrical and Electronics Engineer. Her application was received at the Consulate General of Canada in Hong Kong on December 14, 1998.
[3] The applicant graduated from Tianjin University in the People's Republic of China in 1985 with a master's degree in engineering after having been awarded a bachelor's degree from the same university in 1982.
[4] The applicant stated on her application that she worked as an Electrical and Electronics Engineer at the Beijing Institute of Technology on a full-time basis since may 1996. She further stated that she had worked at the Beijing Institute of Technology as a full-time lecturer from 1985 to 1995 and that she was a lecturer at the University of Central Lancashire in the United Kingdom from December 1995 to April 1996.
[5] On December 20, 1999, the applicant was interviewed by the visa officer and in a letter dated December 21, 1999, the applicant was advised that her application for permanent residence in Canada was refused.
DECISION OF THE VISA OFFICER
[6] The visa officer assessed the applicant in the occupation of Electrical & Electronics Engineers NOC 2133.0 for which she earned 68 units of assessment:
| Age 10 |
| Occupation 05 |
| Education/Training Factor 17 |
| Experience 04 |
| Arranged employment 00 |
| Demographic Factor 08 |
| Education 16 |
| English 02 |
| French 00 |
| Personal Suitability 06 |
---
| Total 68 |
[7] At paragraph 9 and 10 of her affidavit, the visa officer explained her assessment of the applicant's experience as an Electrical and Electronics Engineer:
| 9. At the interview, Ms. Liao confirmed that she was a full-time lecturer at the Beijing Institute of Technology. This was corroborated by Ms. Liao's passport which stated her occupation as "professor". Ms. Liao indicated that she taught undergraduate and graduate students. Although Ms. Liao indicated that she devoted 2 hours to lecturing per week, her statement was not corroborated by the reference letter issued by her employing institute. The letter stated that Ms. Liao was an associated professor, and "she gives several lectures to undergraduate students and graduate student. The lectures are Power Electronics, electrical Drive, Electrical Machinery and Intelligent Control of Electric Equipment, etc.". Although this letter did not indicate Ms. Liao's actual lecturing time, I was of the opinion that Ms. Liao's stated 2 hours of lecturing time was disproportionate to teaching at least 4 subjects. Given this discrepancy, I was of the opinion that Ms. Liao's primary functions at the institute was of a professor and that she devoted a small proportion of her time to research projects. Accordingly, I awarded 4 units of assessment to experience. |
| 10. With regard to paragraph 3 of Ms. Liao's affidavit, Ms. Liao confirmed at the interview that her duties and responsibilities at the institute remained the same prior and after her 4 months of stay in the UK. In her application form, her position was stated as lecturer from 1985 to 1995. Given her confirmation at the interview that her duties remain the same prior to and after her stay in the UK, and that her reference letter indicated that her position was an associate professor, and her occupation stated as professor in her passport, I was of the opinion that Ms. Liao was essentially a professor at the institute throughout her tenure with the institute. |
APPLICANT'S POSITION
[8] The applicant submits that the visa officer failed to fulfill a duty of fairness when she did not advise the applicant of any concerns she may have had regarding the applicant's employment duties (relative to the award of units for Experience) and provide her with an opportunity to respond.
[9] The applicant alleges that the visa officer did not advise her that she had any concerns regarding the applicant's employment duties at any time during the interview and, in fact, the visa officer informed the applicant that she was refusing her application because of her English ability.
[10] It is the applicant's submission that a visa officer is under a duty of fairness to point out to an applicant any concerns she may have regarding an applicant's application and give the applicant an opportunity to respond to those concerns.
RESPONDENT'S POSITION
[11] The respondent submits that the principle relating to the duty of a visa officer to inform an applicant of his concerns in order that the applicant may disabuse him was recognized in situations where the visa officer relies upon extrinsic evidence in assessing an application or where the visa officer made a factual error in arriving at a preliminary conclusion without having spoken to the applicant.
[12] The respondent argues that in the case at bar, no extrinsic evidence was considered by the visa officer when she arrived to her conclusions and that the visa officer arrived at her conclusion after affording the applicant a full hearing in which work experience was discussed in detail.
[13] The respondent further alleges that the duty upon a visa officer to inform an applicant of his concerns does not arise merely because the visa officer has not been convinced, after weighing the evidence, that the application was not well-founded. It is the respondent's submission that a visa officer is under no duty to request that evidence or further evidence be produced by the applicant or to repeatedly express his concerns about the application.
ISSUES
| [14] 1 - Did the visa officer fail to fulfill a duty of fairness to the applicant when she did not advise the applicant of any concerns she may have had regarding the applicant's employment duties (relative to the award of units for Experience) and provide her with an opportunity to respond? |
ANALYSIS
[15] Visa officers have the duty to give an immigrant the opportunity to answer the specific case against him. This duty of fairness may require visa officers to inform an applicant of their concerns or negative impressions regarding the case and give the applicant the opportunity to disabuse them.
[16] The duty of fairness owed by visa officers was explained as follows in Fong v. Canada (M.E.I.) [1990], 11 Imm.L.R. (2d) 205 at 215, where the court adopted the reasoning in Re. K.(H.) (Infant), [1967] 1 All E.R. 226 :
| Even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. |
[17] However, this duty to inform the applicant will be fulfilled if the visa officer adopts an appropriate line of questioning or makes reasonable inquiries which give the applicant the opportunity to respond to the visa officer's concerns. McNair J. concluded in Fong :
| "I am also of the opinion that the visa officer committed a breach of the duty of fairness by his failure to afford the applicant an adequate opportunity to answer the specific case against him on the issue of related experience... which could have been done and should have been done by an appropriate line of questioning once it became apparent that the application for permanent residence was likely to fail on that score. This was the course followed by the visa officers in the Fung and Wang cases. |
| [...] |
| I find there was a further breach of the duty of fairness in the failure of the visa officer to apprise the applicant by appropriate questions of his immediate impression regarding the deficiency of proof of intended and related employment, and the likely consequences thereof, in order to afford the applicant some opportunity of disabusing the former's mind of that crucial impression." |
[18] In Hussain v. Canada (M.C.I.) (1998), 45 Imm. L.R. (2d) 13 (F.C.T.D.), Evans J held:
| Counsel for the respondent accepted the proposition that the duty of fairness applies to visa officers when considering visa applications, and that this duty requires officers to make such reasonable inquiries as will enable them to make a careful assessment of an application and, in some circumstances at least, to inform an applicant of negative views that they have formed of the application, so that the applicant may respond. The issue in this case is whether the visa officer met this minimal standard of procedural propriety imposed by the duty of fairness. |
[19] In Fung v. Canada (M.E.I.) (1989), 27 F.T.R. 182 (F.C.T.D.), Jerome A.C.J. held:
| As I held in Hajariwala v. M.E.I. (T-720-88), the duty of a visa officer in this situation is to make an assessment of an applicant's work experience sufficient to evaluate it with respect to that applicant's intended occupation, and any others which the applicant claims are included. In my opinion, however, the only reasonable interpretation of the interview notes and the applicant's account of the interview is that the visa officer did so in this case. The applicant states in his affidavit that he was questioned on the duties of his present employment and that the visa officer reviewed his complete employment history with him. Furthermore, the finding in the notes that the applicant lacks experience as a Production Clerk but has worked as a Tally Clerk and a Checker indicate to me that the applicant's experience was explored. |
[20] In the case at bar, I find that the visa officer gave the applicant a sufficient opportunity to address the visa officer's concerns about the applicant's experience. In her affidavit, the visa officer explains that at the interview the applicant confirmed that she was a full-time lecturer at the Beijing Institute of Technology and that she taught undergraduate and graduate students 2 hours per week. The applicant further confirmed that her duties and responsibilities at the Institute had remained the same prior and after her 4 months stay in the United Kingdom. The applicant also gave evidence that she worked as an engineer on research and other projects and described her most recent engineering project.
[21] As for the documentary evidence tendered by the applicant, the applicant's passport stated her occupation as "professor" and the reference letter form the Director of Automatic Control Division at the Institute stated that "as an associate professor, she gives several lectures to undergraduate students and graduate students. The lectures are Power Electronics, Electrical Drive, Electrical Machinery and Intelligent Control of Electric Equipment, etc.". The letter also explained the various engineering projects in which the applicant had played an important role.
[22] The affidavit of the visa officer and of the applicant both shows that the work experience of the applicant was questioned in detail by the visa officer during the interview and that the applicant took the opportunity to address and adduce evidence on the issue.
[23] The applicant states in her affidavit that the visa officer did not tell her that she thought that the applicant was more of a lecturer than an engineer nor that she had decided to give the applicant less than full credit for Experience as an engineer at the Institute. However, we have to bear in mind that the duty of fairness does not require the visa officer to provide the applicant with a "running score".
[24] As was stated by Muldoon J. in Li v. Canada (M.C.I.) (1999), 173 F.T.R. 110 (F.C.T.D.):
| It is well established in the relevant jurisprudence that the applicant bears the onus of convincing the visa officer of all of the positive elements of his application for permanent residence. Indeed, the applicant has the duty to provide the visa officer with all of the information relevant to his application. |
| [...] |
| In Prasad v. Canada (M.C.I.) (1995), 34 Imm. L.R. (2d) 91 (F.C.T.D.), this Court stated, |
| The onus is on the applicant to satisfy the visa officer fully of all of the positive ingredients in the applicant's application. It is not for the visa officer to wait and offer the applicant a second, or several opportunities to satisfy the visa officer of the necessary points which the applicant may have overlooked. The visa officer exhibited no error of law, egregious error of fact, nor yet any unfairness on this record. One must remind oneself that even if the Court might have come to a different conclusion, the purpose of these proceedings is to determine whether the visa officer went off the rails according to the classical criteria for successful judicial review. |
| The visa officer does have the duty to allow the applicant the opportunity to clarify or elaborate on any concerns the visa officer may have regarding the application. The visa officer is not, however, required to provide the applicant with a running score, or to make the applicant's presentation for him. |
[25] In Asghar v. Canada (M.C.I.), [1997] F.C.J. No. 1092 (F.C.T.D.), Muldoon J. further stated :
| It is still not clear in what circumstances procedural fairness requires that the visa officer apprise the applicant of his concerns. However, from the authorities cited above one may conclude that this duty does not arise merely because the visa officer has not been convinced, after weighing the evidence, that the application is well founded. The visa officer's task is precisely to weigh the evidence submitted by the applicant. In the Court's words, in light of the onus that is on the applicant to produce evidence, it is not apparent that the visa officer should be compelled to give him a "running-score" at every step of the proceeding [Covrig v. M.C.I., (1995), 104 F.T.R. 41]. |
[26] In the case at bar, the visa officer weighed the evidence before her and was not convinced that the applicant only devoted 2 hours of lecturing per week considering that the reference letter showed that the applicant taught at least 4 subjects. The visa officer found that the applicant's primary function at the Institute was of a professor and that she devoted a small proportion of her time to research projects. The visa officer based her conclusion on the fact that the applicant had confirmed that her duties had remained the same prior to and after her stay in the United Kingdom, that her reference letter indicated that her position at the Institute was as associate professor and that her occupation stated in her passport was "professor".
[27] This conclusion was reasonably open to the visa officer in light of the evidence and I find that the visa officer was entitled to award the applicant 4 units of assessment for experience after weighing the evidence and concluding that the applicant's primary function was of a professor and that she devoted a small proportion of her time to engineering research projects.
[28] As a result, this application for judicial review is dismissed.
[29] Neither counsel suggested question for certification.
Sgd.) "Pierre Blais"
Judge
October 31, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-659-00
| STYLE OF CAUSE: Xiao Zhong Liao |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: October 30, 2000 |
REASONS FOR ORDER AND ORDER OF BLAIS, J.
| DATED: October 31, 2000 |
APPEARANCES:
| Mr. Dennis Tanack For the Applicant |
| Ms B. Sokhansanj For the Respondent |
SOLICITORS OF RECORD:
Dennis Tanack
Barrister and Solicitor
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |