T-292-90
Chun Tung Fong (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: FONG v. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (T.D.)
Trial Division, McNair J.—Calgary, June 5;
Ottawa, July 24, 1990.
Immigration — Application for permanent residence denied
for failure to meet job requirements — Zero units of assess
ment for experience factor — Failure to go beyond intended
job description and direct line of questioning to work experi
ence broken down into constituent elements to assess adapta
bility to intended occupation error in law — Failure to afford
opportunity to answer case against him once apparent applica
tion likely to fail breach of duty of fairness — Duty to apprise
applicant of immediate impression as to deficiency of proof of
intended employment allowing applicant to disabuse visa offi
cer of crucial impression.
This was a motion for certiorari quashing a visa officer's
denial of permanent resident status and mandamus directing
the respondent to reconsider the request for permanent resi
dence according to law. The visa officer gave the applicant zero
units of assessment for the experience factor set out in the
Immigration Regulations, 1978 thus causing him to fall three
points short of the passing grade. The applicant had been
offered employment in Canada as a production line manager
for a skiwear manufacturer. The job requirements included at
least ten years' experience on a production line with a clothing
manufacturer and experience in supervision and instruction of
staff on a production line. On his application, the applicant
indicated his intended occupation was garment factory supervi
sor and set out his work history, including operation of his own
sewing business workshop from 1978 to 1980, self-employment
as a subcontractor and agent of sewing work for a large
clothing manufacturer from 1980 to 1986, and employment to
date as a sample maker for another company. The applicant's
employment summary showed twenty years' experience in the
garment industry. After interviewing the applicant through an
interpreter, a visa officer ruled that the applicant had not met
the job requirements as he had not proved that he had ten
years' experience on a production line with a clothing manufac
turer or that he had any experience in the supervision and
instruction of staff. At the conclusion of the interview, the visa
officer asked the applicant whether there was any other rele
vant information that had not been covered and that he wished
to add for consideration. The applicant responded that he
desired to join family living in Canada, but did not elaborate on
his employment background. The issues were whether the visa
officer erred in law or breached the duty of fairness in not
breaking down the constituent elements of each of the jobs
indicated in the work history and considering the same when
analyzing the production line job to determine whether the
applicant met the requirements.
Held, the motion should be allowed.
The visa officer erred in law and breached the duty of
fairness in not going beyond the job description of production
line manager and the CCDO definition thereof, and in not
directing a specific line of questioning as to the applicant's
actual work experience in the garment industry broken down
into its constituent elements to properly assess their adaptabili
ty or transferability to the intended occupation. He should have
given the applicant an opportunity to answer the specific case
against him on the issue of related experience vis-Ã -vis the job
offer by adopting an appropriate line of questioning once it
became apparent that the application was likely to fail on that
score.
There was a further breach of the duty of fairness in the visa
officer's failure to apprise the applicant 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 visa officer of that crucial impression.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 6.
Immigration Regulations, 1978, SOR/78-172, ss. 8(1)(a)
(as am. by SOR/85-l038, s. 3), 9(1), 11(1)(b) (as am.
by SOR/79-l67, s. 4).
CASES JUDICIALLY CONSIDERED
APPLIED:
In re H. K. (An Infant), [1967] 2 Q.B. 617 (H.L.);
Hajariwala v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 79; (1988), 34 Admin. L.R.
206; 23 F.T.R. 241; 6 Imm.L.R. (2d) 222 (T.D.); Fung v.
Minister of Employment and Immigration (1989), 27
F.T.R. 182 (F.C.T.D.); Wang (L.) v. Minister of
Employment and Immigration (1988), 23 F.T.R. 257; 7
Imm.L.R. (2d) 130 (F.C.T.D.).
CONSIDERED:
Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385; 50
C.C.C. (2d) 353; 13 C.R. (3d) 1; 15 C.R. (3d) 315; 30
N.R. 119.
REFERRED TO:
Rothmans of Pall Mall Canada Ltd. v. Minister of
National Revenue (No. 2), [1976] 2 F.C. 512; [1976]
CTC 347 (C.A.).
AUTHORS CITED
Rotenberg, C. L. "Conundrum: Immigration Selection--
Occupational and Experience Factors" 6 Imm. L.R.
(2d) 24.
COUNSEL:
Peter W. Wong for applicant.
Barbara Ritzen for respondent.
SOLICITORS:
Major, Caron & Company, Calgary, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
McN Aliz. J.: This is an originating motion by
the applicant pursuant to section 18 of the Federal
Court Act [R.S.C., 1985, c. F-7] seeking relief
from a visa officer's decision of July 26, 1989
denying him permanent resident status. More
specifically, the claims for relief comprise a decla
ration that the officer's decision was erroneous and
contrary to the duty of fairness and the rules of
natural justice, an order of certiorari to quash the
same, and an order for a writ of mandamus direct
ing the respondent to reconsider and process the
applicant's request for permanent residence in
Canada according to law and to determine wheth
er or not to grant landing accordingly.
Essentially, the grounds of the application are
that the visa officer erred in assessing the appli
cant at zero units of assessment for the experience
factor set out as item 3 in column 1 of Schedule I
to the Immigration Regulations, 1978, [SOR/78-
172 (as am. by SOR/79-167, s. 4)] pursuant to
paragraph 11(1) (b) thereof. Applicant's counsel
has no quarrel with the visa officer's assessment in
respect of the other selection criteria which, in this
case, total 67 points out of a possible 100, thus
falling three points short of the passing grade of
70. Moreover, applicant's counsel concedes that he
has the onus of proving error in law on the part of
the visa officer and, or alternatively, breach of a
duty of fairness, failing which the request for the
prerogative relief of certiorari and mandamus
cannot avail. If I apprehend the matter correctly,
the claim for declaratory relief is abandoned in
face of the objection by respondent's counsel that
declaratory relief cannot be sought by originating
motion, but only by an action: Rothmans of Pall
Mall Canada Ltd. v. Minister of National Reve
nue (No. 2), [1976] 2 F.C. 512 (C.A.). In any
event, the point was not argued by applicant's
counsel. Applicant's counsel further argues that
the visa officer seriously erred by failing to consid
er the applicant's related experience and to break
down the job offer requirements and the Canadian
Classification Dictionary of Occupations (CCDO)
classification into their respective component
parts.
The application for permanent residence by the
applicant began with an application of undertaking
and assistance by his sister, who was a Canadian
citizen and married and living in Calgary, dated
November 1, 1988. On March 16, 1989 confirma
tion of an offer of employment for the applicant of
production line manager was approved at the Cal-
gary centre of the Commission. The offer was
from Sun Ice Limited, a Calgary-based multi
national corporation specializing in the production
and sale of ski-wear. The job description contained
therein read as follows:
Responsible for productivity of line reporting to shift manager.
Correct and assist employees in performing their tasks. Ensure
availability of raw materials for the line. Learn to operate
computer equipment which controls the line.
The job requirements specified in the confirmation
were as follows:
Must be proficient in skills of pattern making, cutting, sewing
on production line for clothing manufacturer with at least 10
years experience. Must have experience in supervision and
instruction of staff on production line.
This was followed by an application for permanent
residence dated on or about April 24, 1989 in
which the applicant indicated his intended occupa
tion in Canada as being that of garment factory
supervisor. The application set out the applicant's
work history, showing that he had operated his
own sewing business workshop from 1978 to 1980,
that he had been a self-employed subcontractor
and agent of sewing work on behalf of a large
clothing manufacturer for the period from 1980 to
1986 and that from then until the present he was a
sample maker for Single Hearted Garment Co.,
Ltd.
Sometime in June of 1988 the applicant was
interviewed in Hong Kong by Victor Rempel, vice-
president of Sun Ice Limited, who satisfied himself
that the applicant had the experience and capabili
ty to meet the job requirements of production line
manager, subject to his undergoing a period of
training to familiarize himself with the computer
ized nature of the production line so that he could
handle the job fully.
On July 24, 1989 the applicant was interviewed
at Hong Kong by the Second Secretary (Immigra-
tion) of the Commission, Richard B. Thornton,
through an interpreter. There were no notes of this
interview, nor does the record contain any comput
er printout pertaining thereto. What does appear
in the record is a copy of a telex dated July 26,
1989 from the Commission office in Hong Kong to
the Calgary office, the substantive portion of
which reads:
P.I. INTERVIEWED 24JUL89 IN CONNECTION WITH A/M JOB
OFFER. APPLICATION HAS BEEN REFUSED. PI DOES NOT/NOT
MEET JOB REQUIREMENTS SET OUT IN SECTION G OF 2151,
SINCE 1986, HE HAS BEEN SAMPLE MAKER IN GARMENT
FACTORY; PREVIOUSLY HE WORKED OUT OF HIS HOME AS
SELF-EMPLOYED SEWER. CERTAINLY DOES NOT/NOT POSSESS
THE MANAGEMENT AND PRODUCTION LINE EXPERIENCE
REQUIRED. MOREOVER, IN VIEW OF PIS LACK OF ENGLISH
AND LIMITED EDUCATION AND FUNDS, CASE IS A FAILURE ON
POINTS, PLEASE NOTIFY ER/SPONSOR.
This was followed by a letter of rejection dated
July 26, 1989, which alluded to the selection cri
teria and the necessity of achieving a sufficient
number of credits, and concluded in the following
vein:
As you have not accumulated sufficient credits under the
abovementioned selection criteria, you do not meet the require
ments for admission to Canada as an independent applicant.
The statutory provisions most relevant to the
present case are paragraph 8(1)(a) [as am. by
SOR/85-1038, s. 3], subsection 9(1) and
paragraph 11(1)(b) of the Immigration Regula
tions, 1978, as amended.
Filed in support of the application are two
affidavits of the applicant's sister and sponsor,
Kelly Chee Chu Wong, the first sworn on
January 2, 1990 and the second sworn on June 5,
1990, as well as the affidavit of Victor Rempel,
sworn on January 3, 1990. Affidavits filed in
opposition were those of Douglas R. Haaland,
program specialist of the respondent, sworn on
April 17, 1990, identifying the applicant's file, and
the affidavit of the visa officer, Richard B. Thorn-
ton, sworn on May 16, 1990.
Mr. Rempel deposes in paragraphs 5 and 6 of
his affidavit as follows:
5. It is my understanding that Mr. Fong has in excess of ten
years of experience in the production and manufacturing of
outerwear and other related garments. When I saw him in
Hong Kong, he showed me that he was presently working on
garments for another skiwear manufacturer selling their prod
uct in Alberta and elsewhere in Western Canada. I was
extremely interested in his experience that he displayed.
6. That I do verily believe that the Commission for Canada
in Hong Kong did not fully explore the related experience that
I was interested in when I interviewed Mr. Fong. Having ten
years of experience in the skiwear manufacturing business, I
assessed Mr. Fong's capabilities and I felt that he was qualified
to be trained for the position that he already had vast experi
ence for.
The second affidavit of Kelly Chee Chu Wong,
marked as Exhibit 1, merely identifies as an
annexed exhibit a letter received under date of
May 19, 1990 from the applicant's present
employer, Single Hearted Garment Co., Ltd., con
firming the nature of the applicant's present
employment responsibilities as a sample maker,
extolling his capabilities, and showing in particular
that he was "in charge of forty workers in one
production line". Counsel for the respondent raises
the objection that the information contained there
in is irrelevant for purposes of this proceeding in
which the issue is simply to determine whether the
visa officer erred on the basis of the information
that was before him. The same thing could prob
ably be said of the other affidavits, but they are at
least illustrative of what is actually at stake and I
propose to consider them in that context.
Also forming part of the record is the appli
cant's employment summary, which is in the same
category as the affidavits sworn after the fact. This
summary shows an impressive 20 years' experience
in the garment industry from the commencement
of his apprenticeship in 1968, following graduation
from high school in Hong Kong. For the years
1978 to 1980, the applicant indicates that he oper
ated his own sewing business with 16 operators
and that he designed his own clothing layouts and
patterns.
It must be remembered that the affidavit of the
visa officer, Mr. Thornton, was made and sworn
some nine months or more after the interview
conducted on July 24, 1989. Respondent's counsel
asserts that the affidavit was based on a computer
printout of the affiant's interview notes, but there
is no evidence of that nor does the affidavit so
state. Consequently, the affidavit must be viewed
with some circumspection, apart from its self-serv
ing tenor. With that qualification, the most rele
vant portions of the Thornton affidavit are para
graphs 4, 5, 6 and 7, which read:
4. To determine whether Mr. Fong could meet the require
ments of the position, I questioned him on his past and
present employment duties. He confirmed the information
given on his written application for permanent residence in
Canada (IMM8) that he had worked from 1978-1986 as a
self-employed sewer, and from 1986 to the date of the
interview as a sample maker with the Single Hearted Gar
ment Co. Ltd. He also produced a letter of reference signed
by a director of that company attesting to his employment as
a sample maker. Mr. Fong made no mention in his answers
to my questions of having worked for at least 10 years on a
production line for a clothing manufacturer, or of having
any experience in the supervision and instruction of staff on
a production line.
5. As is my standard practice in all situations where refusal of
an application appears likely or possible, I asked Mr. Fong
at the conclusion of my questioning whether there was any
other information relevant to his case that we had not
covered and which he would wish to add for my consider
ation. To the best of my recollection, Mr. Fong mentioned at
that time the presence of several family members in Canada
and expressed a wish to join them. Again, to the best of my
recollection, Mr. Fong did not avail himself of this opportu
nity to inform me as to any other information relevant to his
employment background, training or skills not previously
covered in my questioning or elsewhere in his application.
6. In reaching a decision to refuse Mr. Fong's case, I took into
account that he had not proved that he had 10 years of
experience on a production line with a clothing manufactur
er (having only shown 3 years of any kind of employment
with a clothing manufacturer) or that he had any experience
in the supervision and instruction of staff on a production
line. Knowledge of the local garment industry gained
through previous interviewing experience and consultation
with local experts indicates that the functions of a sample
maker and those of a production line manager are separate
and distinct—indeed, they appear at virtually opposite ends
of the garment making process. Sample makers are not
normally involved with production line activities—and vice
versa. Further, the salary being paid to Mr. Fong of $4,000
HK per month (approximately $620 CDN) is not commen
surate with local pay scales in the garment business for
supervisory or managerial positions. Finally, none of the
responsibilities outlined by Mr. Fong matched with those
appearing in the CCDO description of production line
manager to be found in Volume 1 of the CCDO manual at
paragraph 1143-114; nor does he meet the training and
entry requirements for such, which are outlined in Volume 2
of the CCDO as including "secondary school graduation"
(Mr. Fong has completed 8 years of schooling) and "ten
years of experience, supplemented by part-time or full-time
courses in the speciality ..." (Mr. Fong has neither).
7. After consideration of the foregoing, I concluded that
Mr. Fong had shown neither the direct nor related employ
ment experience to indicate that he could meet the require
ments of the job offer as set out on the EMP 2151. He was
therefore awarded 0 units under Factor 3 of Schedule I to
the Immigration Regulations—and refused pursuant to the
provisions of R11(1) of the Immigration Regulations which
state that a visa officer may base a refusal upon an award of
0 units for the experience factor (item 3 of column 1 to
Schedule I of the Regulations). The total number of units an
applicant may be awarded pursuant to other factors set forth
in Schedule I in no way fetters an officer's ability to base a
refusal on the failure to compile [sic] with RI1(1).
Applicant's counsel makes the point that there is
no evidence of Mr. Thornton's interview notes,
contrary to the usual practice. He lays particular
stress on the fact that there is no indication wheth
er the visa officer considered the applicant's relat
ed experience in order to determine whether it
matched the experience required under the job
offer and the accompanying CCDO classification.
Counsel refers to an article entitled "Conundrum:
Immigration Selection—Occupational and Experi
ence Factors", by C. L. Rotenberg, Q.C., appear
ing at 6 Imm. L.R. (2d) 24 et seq, which refers to
the Policy Memorandum of Employment and
Immigration Canada in reference to the assess
ment of experience and occupational demand fac
tors in column 1 of Schedule I to the Immigration
Regulations, 1978, and particularly the characteri
zation of Type III appearing in the Policy Memo
randum, which reads:
TYPE III The applicant has not performed the full spectrum
of duties, but has nonetheless carried out some
portion of the duties in the 'eligible' occupation.
This argument implies that occupations may be
broken down into major characteristics, e.g., some
pharmacists may qualify as pharmaceutical repre
sentatives.
Applicant's counsel makes the point that the
Type III analysis is a direction from the Minister
to visa officers that they must look beyond titles in
determining whether an applicant has the overall
experience related to the position for which he
claims to be qualified. According to him, the only
thing we are left with in the present case is
Mr. Thornton's conclusion that a sample maker is
not a production line manager, and therefore lacks
the requisite experience. Taking everything into
account, applicant's counsel submits that the inter
viewing officer erred in law by refusing or neglect
ing to break down the constituent elements of each
of the jobs indicated by the applicant in his work
history and taking the same into consideration
when analyzing the production line job with a view
to determining whether the applicant fitted the
requirements. In his submission, the failure to do
so resulted in a "0" assessment, and constituted
error in law.
Alternatively, applicant's counsel submits that
the visa officer's failure to take into consideration
the different job functions which the applicant
performed during his entire working life in the
garment industry for the purpose of assessing his
job related experience amounted to a breach of the
duty of fairness. He makes the further submission
that there was a duty incumbent on the visa
officer, once the matter of job experience had
become critical to the success or failure of the
application, to point the path of direction by
appropriate questions, especially by reason of the
applicant's language difficulty. As he put it,
simply to ask if the applicant had anything further
to add is another glaring breach of the duty of
fairness.
Counsel for the respondent starts with the
proposition that the onus rests squarely on the
applicant to satisfy the visa officer that he met the
selection standards established by the Regulations
for purposes of determining his admissibility, by
virtue of section 6 of the Immigration Act, 1976
[S.C. 1976-77, c. 52]. Counsel contends that there
is nothing to indicate that the visa officer,
Mr. Thornton, failed to consider all the evidence
before him in relation to the applicant's intended
occupation. In her submission, what applicant's
counsel is simply asking is that I substitute my
opinion of the appropriate experience assessment
for that of the visa officer's, contrary to the princi
ples of Fung v. Minister of Employment and
Immigration (1989), 27 F.T.R. 182 (F.C.T.D.)
and Wang (L.) v. Minister of Employment and
Immigration (1988), 23 F.T.R. 257 (F.C.T.D.).
As to the absence of interview notes, counsel's
explanation is that these were contained in a com
puter printout which was not generated as part of
the relevant file material. Finally, respondent's
counsel stresses again that there is no evidence of
any failure on the part of the visa officer to make a
proper assessment of the experience factor, nor is
there anything indicative of a breach of the duty of
fairness.
The whole issue, as it seems to me, comes down
to this: whether the visa officer erred in law in the
manner in which he conducted his interview by
failing to delve sufficiently into the applicant's
related experience in making a "0" assessment in
respect thereof or, failing that, whether there was
some breach of a duty of fairness.
In both the Fung and Wang cases, supra, the
applicants failed to convince the visa officers that
they had the necessary experience in the intended
occupation, after a thoroughgoing investigation
and evaluation of all pertinent factors. Indeed, in
both of these cases the visa officers fairly apprised
the applicants of the specific deficiencies in respect
of the intended occupations, and afforded them
ample opportunity to respond thereto.
In Hajariwala v. Canada (Minister of Employ
ment and Immigration), [1989] 2 F.C. 79 (T.D.),
the applicant was successful in obtaining certiorari
quashing refusal of his request for permanent resi
dence and mandamus directing that the applica
tion be reconsidered according to law on the
grounds of the visa officer's error in law in failing
to assess alternate work experience in relation to
the intended occupation and breach of a duty of
fairness to afford an opportunity to provide infor
mation in support of current experience in each
included occupation. Jerome A.C.J. stated the fol
lowing rationale for the decision at pages 86-87:
As the [visa] officer stated in the letter received by the
applicant:
I do not believe that your various responsibilities can be
broken down into separate components for the purposes of
awarding you units of assessment for experience in your
alternative intended occupation ....
Such an interpretation is a clear error of law. The Regulations
permit the applicant to be assessed in "an occupation". The
factors listed in column I of Schedule I require that the
experience of the applicant be assessed with regard to his
intended occupation. There is no reason why the actual experi
ence and time spent in each of the various responsibilities in an
occupation cannot be broken down to award units of assessment
for experience in intended occupations ....
I should also add that as a matter of fairness the record
should show that the applicant was given the opportunity to
provide information in support of his current experience in each
included occupation. The record must equally indicate reasons
which support the visa officer's assignment of a specific experi
ence rating to the included occupations or reasons which sup
port the refusal to do so.
In my view, there is no cogent evidence in the
present case that the visa officer went beyond the
intended job description of production line manag
er and the CCDO definition thereof and directed a
specific line of questioning as to the applicant's
actual work experience in the garment industry
broken down into its constituent elements for the
purpose of making an appropriate assessment with
respect to their adaptability or transferability to
the intended occupation. It is apparent from Mr.
Thornton's affidavit that he made no attempt to do
this. In my opinion, his failure to do so constituted
an error in law. 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
vis-a-vis the job offer of production line manager,
which could have been done and should have been
done by an appropriate line of questioning, once it
became apparent that the application for perma
nent residence was likely to fail on that score. This
was the course followed by the visa officers in the
Fung and Wang cases.
In the present case, Mr. Thornton chose to
follow a different path. According to his standard
practice in that situation, as deposed in
paragraph 5 of his affidavit, he asked the applicant
if there was any other information relevant to the
case that had not been covered and which he might
wish to add for the officer's consideration. Accord
ing to the affiant's recollection, the matters men
tioned by the applicant were not at all responsive
to the critical issue. It is small wonder, in view of
the language difficulty, despite the presence of the
interpreter, and the general, rambling nature of
the question, if it could even be called that.
In the case of In re H. K. (An Infant), [1967]
2 Q.B. 617, Lord Parker C.J. said, at page 630:
... I doubt whether it can be said that the immigration
authorities are acting in a judicial or quasi-judicial capacity as
those terms are generally understood. But at the same time, I
myself think that 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. That is not, as I see it, a question of acting or
being required to act judicially, but of being required to act
fairly.
Incidentally, this case was but one of the many
authorities referred to by Dickson J. (later Chief
Justice of Canada) in his classic judgment in
Martineau v. Matsqui Institution Disciplinary
Board, [1980] 1 S.C.R. 602, regarding the availa
bility of certiorari as a general remedy for failure
by administrative decision-makers to exercise the
duty of fairness.
Applying the principle of In re H. K. (An
Infant), supra, to the facts of the present case, I
find that 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 for-
mer's mind of that crucial impression.
For these reasons, the applicant's motion must
succeed. Accordingly, an order will go for certio-
rari to quash the visa officer's decision of July 26,
1989, and for mandamus requiring the respondent
to consider the application for permanent resi
dence according to the relevant provisions of the
Immigration Act, 1976, and the Immigration
Regulations, 1978. The applicant is entitled to his
costs of the motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.