Date: 20000412
Docket: IMM-1846-99
BETWEEN:
LU LIN ZHENG
Applicant
- and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
BACKGROUND
[1] Lu Lin Zheng studied English language and literature at the Foreign Language Department of Zhengzhou University (the "University"), People"s Republic of China ("PRC"), and obtained an undergraduate degree in 1986. In 1992, she successfully completed a one and a half year graduate study program in English Language and Western Culture at the University.
[2] On March 27th, 1998, she applied for a permanent resident"s visa to Canada in the independent category of interpreter (NOC 5125.3). She was interviewed on February 23rd , 1999 by designated immigration officer L. Chau (the "visa officer") who advised the applicant on March 9th , 1999 she did not qualify for her intended occupation of interpreter/translator (NOC 5125.3/5125.1). The stated reason for her lack of qualification was "...you do not have the required training to be assessed in these occupations, namely, a bachelor"s degree in translation, and specialization in translation/interpretation at the graduate level, according to the NOC".
[3] The applicant in this judicial review proceeding says the visa officer"s decision contains two errors of law arising from her misinterpretation of the requirements of the NOC which have been incorporated into the Immigration Regulations, 1978 , SOR/78-172, (the "Regulations") through definition in section 2. First, the visa officer did not assess the applicant in a "related discipline" as she was required to do, and second, the visa officer found that a specialization in interpretation, translation and terminology at the graduate level was mandatory when the NOC only says such is "usually required".
The Visa Officer"s Rationale
[4] The visa officer"s reasons are expressed in her CAIPS notes, part of the tribunal"s certified record. These notes record what happened at the interview. The visa officer did not provide an affidavit in these judicial review proceedings. All of the underlinings cited from the CAIPS notes are mine.
[5] The visa officer said the interview was exceptionally long (two hours). The applicant was given a test:
| in translating a short paragraph from Chinese to English. PI was required to demonstrate her proficiency in translation skills as translating documents was listed as one of her duties in the reference letter issued by her current employer. I therefore assessed PI in the occupations of both interpreter and translator. |
[6] The visa officer in her CAIPS notes continued her reasoning by recording:
| PI applied as interpreter/translator. According to the NOC, these two occupations are required to have a bachelor"s degree in translation, and specialization in translation/interpretation at the graduate level. |
[7] The visa officer reviewed the transcript of the university undergraduate and graduate courses the applicant took which included intensive English reading, extensive English grammar, writing, listening and speaking as well as British and American literature, world history and social science courses. The visa officer noted:
| Among these courses, PI took translation and linguistics. Her graduate studies indicated courses in lexicology, American culture, international relations, American history, Western civilization and American literature. No translation or interpretation courses noted in this transcript. With only two courses related to translation and interpretation, PI"s education cannot be viewed as the equivalent or substitute for the specific employment requirements for interpreters / translators which are abundantly clear in the NOC. |
[8] The visa officer then assessed the applicant"s language skills as required by the Regulations and gave her a second written test. The applicant was assessed as "fluent" in reading and speaking but only "well" in writing because the text did not "capture the meaning of the English text fully and precisely".
[9] The visa officer continued her assessment by concluding:
| In the absence of required training and proficiency in translating skills, I am not satisfied that PI can undertake her intended occupation in Canada. |
[10] The visa officer advised the applicant of her concerns; the applicant responded by presenting to the visa officer two books which she claimed she was one of the translators, and argued that these books should enable her to meet the employment requirements in the NOC. The visa officer did not agree. She said in her CAIPS notes:
| I advised her that these books cannot be viewed as the equivalent or substitute for the entry requirements. |
[11] The applicant, at the interview, presented the visa officer with a resumé entitled "Professional Experiences" listing her various experiences in interpreting for visitors and trade delegations. The visa officer recorded her reaction as follows:
| I considered this information and determined that it does not overcome PI"s inability in meeting the training and entry requirements for interpreter /translator in the NOC. |
[12] The applicant apparently told the visa officer she had taken a one year interpretation course in 1993/94 but did not bring that certificate with her. The visa officer remarked:
| Notwithstanding the absence of document to substantiate her claim, this program still cannot be viewed as a substitute for the bachelor"s degree in translation and specialization in interpretation/translation at a graduate level. |
The Applicant"s Affidavit
[13] The applicant filed an affidavit in this proceeding. She indicates she applied for permanent residence in Canada as an interpreter and states she has worked as an interpreter and translator for almost 15 years with experience in a commercial, governmental and academic setting.
[14] The applicant says the visa officer at the end of the interview told her "she was refusing my application on the grounds that I had to have a bachelor"s degree in translation as well as graduate level courses in translation in order to be qualified as an interpreter".
| Other facts in the record |
[15] I note from the certified record the following additional facts. First, the visa officer"s listing in her CAIPS notes of the undergraduate and graduate courses taken by the applicant are generally accurate but the visa officer omits to record course concentration in terms of hours. In her undergraduate courses, the applicant concentrated on language and literature as evidenced by:
| Intensive English reading- 792 hours |
| Extensive English reading- 108 hours |
| English listening and speaking- 144 hours |
| English writing- 144 hours |
| American Literature- 108 hours |
| Translation- 72 hours |
| Linguistics- 72 hours |
[16] The applicant indicated in her application for permanent residence: (1) from 1995 to the present, her occupation was that of an interpreter with Zhengzhou Foreign Trade Company and from March 1988 to March 1995 as a teacher in the English Department at Zhengzhou University. This experience is confirmed in letters of recommendation. The Dean of the English Teaching Department at the University added that the applicant was often chosen to interpret for the President of the University "whenever a big occasion occurred".
ANALYSIS
| (1) The intended occupation:The National Occupation Classification (NOC) requirements |
[17] There is no question that by the Regulations, the National Occupational Classification ("NOC") is incorporated by reference. Subsection 2(1) of the Regulations provides:
| "National Occupational Classification" means the National Occupational Classification, including the Career Handbook and all other component publications, published by the Minister of Human Resources Development, as amended from time to time; |
"classification nationale des professions" Le document intitulé Classification nationale des professions " le Guide sur les carrières et autres publications accessoires étant compris " publié par le ministre du Développement des ressources humaines, avec ses modifications éventuelles. |
[18] Translators, Terminologists and Interpreters are described in the NOC under item 5125 which reads:
| Translators translate written material from one language to another. Terminologists conduct research required to translate and interpret technical, professional and scientific vocabulary and material. Interpreters translate oral communication, such as speeches, proceedings and dialogue, from one language to another. Translators, Terminologists and Interpreters are employed by private translation and interpreting agencies, government, large private corporations, international organizations, the media or they may be self-employed. [emphasis mine]
|
Les traducteurs traduisent des textes dans une ou plusieurs langues. Les interprètes expriment oralement dans une langue ce qui a été dit dans une autre langue lors de discours, de réunions, de débats ou de dialogues. Les terminologues exécutent les recherches nécessaires pour traduire des termes et des documents techniques, professionnels ou scientifiques. Les traducteurs, les terminologues et les interprètes travaillent pour le gouvernement, dans des services de traduction et d"interprétation privés, des grandes sociétés privées, des organisations internationales, des médias d"information, ou peuvent travailler à leur compte. |
[19] The certified record shows the applicant submitted her application for permanent residence to the Consulate General in Hong Kong under the Independent Skilled Worker category as an Interpreter. But, it appears from the CAIPS notes that the visa officer interviewed the applicant as if she applied as an Interpreter-Translator.
[20] The NOC for each of these occupations prescribe both the same employment (educational/training) requirements. However, the main duties are not the same nor are the required skills as is evident from item 5125 of the NOC.
[21] It is fundamental that an applicant has his or her application evaluated under the stated intended occupation. Sharlow J. underlined the importance of this principle in Dauz v. Canada (M.C.I.), [1999] 2 Imm.L.R. (3d) 16 as follows:
| [6] In assessing the occupational factor, the visa officer was required to ask herself what the employment opportunities are in Canada in the occupation: |
| (a) for which the applicant meets the requirements for Canada as set out in NOC, |
| (b) in which the applicant has performed a substantial number of the main duties as set out in NOC, including the essential ones; and |
| (c) that the applicant is prepared to follow in Canada. |
| [...] |
| [10] Counsel for the Minister argued that the occupational factor is intended to be merely a measure of occupational demand in Canada. No doubt that is so. But it also asks whether the applicant meets the employment requirements, and whether the applicant has performed a substantial number of the main duties for the intended occupation. This part of the regulation on its face requires a determination of facts relating to the applicant, as well as occupational demand in Canada. [emphasis mine] |
[22] On the face of the CAIPS notes, the visa officer did not assess the applicant solely as an interpreter but rather in a combined occupation of translator/interpreter and this fact tainted her view on her interpretation of the employment requirements for an interpreter discussed below. For this reason, I have to conclude that the decision of the visa officer cannot stand.
| (2) Interpretation of the employment requirement under the NOC |
[23] The applicant argued the visa officer committed a reviewable error in interpreting the phrase "related discipline" as meaning the "equivalent or substitute" of a bachelor"s degree in translation.
[24] In interpreting the applicable provision, I am satisfied that it is appropriate to use the method of interpretation set out in the Supreme Court of Canada judgment of Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 namely, the reading of the acts or regulations "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament".
[25] The employment requirements in the NOC attached to these occupations are:
| Employment requirements A bachelor"s degree in translation or a related discipline is required, and specialization interpretation, translation and terminology at the graduate level is usually required. [emphasis mine] |
Conditions d"accès à la profession Un baccalauréat en traduction ou dans une discipline connexe et une spécialisation en traduction, en terminologie ou en interprétation au niveau des études supérieures sont exigés. |
[26] The word "related" is defined in the Shorter Oxford Dictionary as "connected" or "associated" and the word "connexe" is defined in the Robert dictionary as "qui a des rapports étroits".
[27] "Equivalent" in the same dictionaries means "equal in value or corresponds with" and "qui peut la remplacer et chose qui a la même fonction que l"autre".
[28] In the Shorter Oxford Dictionary "substitute" means replace.
[29] Clearly, the word "related" does not have the same meaning as "equivalent" or "substitute". These words have different degrees of similarity or shades associated with them. "Equivalent" or "substitute" conveys the notion sameness, of being identical. Being related is more flexible in terms of linkages " association or connection is required.
[30] These distinctions make sense if the context of the provision is taken into account. The stated words in the NOC are "a bachelor degree in translation or a related discipline" and are found in an NOC item which covers translators, interpreters and terminologists which have different duties attached to them. Requiring a bachelor"s degree in a related discipline was intended to provide flexibility in the assessment of the employment requirements enabling the visa officer a degree of latitude in order to take into account a person whose intended occupation was that of an interpreter or terminologist.
[31] By applying the requirement of a degree equivalent to or substituted for a translation degree, the visa officer confined the scope of employment requirements too narrowly and foreclosed a proper examination on whether the applicant"s degree in English language and literature and the courses she followed at the graduate level were connected to her employment as an interpreter. By doing so, the visa officer committed a reviewable error.
CONCLUSION
[32] This application for judicial review is granted and the matter is remitted for reconsideration by a different visa officer.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
APRIL 12, 2000
Date: 20000412
Docket: IMM-1846-99
OTTAWA, ONTARIO, WEDNESDAY, APRIL 12TH, 2000
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
LU LIN ZHENG
Applicant
- and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For the reasons given, the application for judicial review is granted and the matter is remitted for reconsideration by a different visa officer.
"François Lemieux"
J U D G E