Date: 20031120
Docket: IMM-688-02
Citation: 2003 FC 1357
Between:
BONG OK KIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of the decision of Immigration Officer Moonho Lee (the "Officer") at the Canadian Embassy in Seoul, Korea dated December 12, 2001, in which she refused the applicant's application for permanent residence in Canada because she did not meet the requirements for immigration to Canada under subsections 8(1) and 9(1) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations").
[2] The applicant is a citizen of Korea who filed an application for permanent residence in Canada under the independent category and asked to be assessed as a "Pastor".
[3] The applicant was granted an interview on December 11, 2001. On the basis of the paper screening and the interview, she was awarded only 56 points under the category of "Pastor, NOC: 4154". Her application was rejected on December 12, 2001.
[4] The Officer based her rejection of the application on the following grounds:
- the applicant's work experience was not consistent with the duties of her stated NOC profession and she had worked less than part-time hours;
- the job offer enclosed in the application and discussed during the interview did not have a listed salary and the applicant suggested a salary that did not meet the Canada Employment Centre ("CEC") guidelines;
- the applicant provided no evidence of the validity or equivalency of her Master's degree; and,
- the applicant received a total of 56 points when assessed as a pastor. In order to be eligible for permanent residence to Canada, applicants are required to achieve at least 70 points.
[5] The applicant submits that the Officer should have questioned her further to determine whether the applicant's Master's degree complied with the educational requirements under the Regulations.
[6] Jurisprudence does not support this contention. It has been established that in an application for permanent residence under the independent category, the applicant has the obligation to present a prima facie case that she meets the employment requirements of the job she is being assessed for (see, for example, Wankhede v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 968 (T.D.) (QL) and Zahiral Islam v. Minister of Citizenship and Immigration (September 5, 2001), IMM-4341-00, 2001 FCT 991).
[7] Furthermore, the Officer does not err in refraining from seeking further information from the applicant about the nature of her education and experience. Madame Justice Reed directly addressed the issue of equivalency in Wei Xiao Yuan v. Minister of Citizenship and Immigration (February 25, 2000), IMM-6246-98, stating at paragraph 9:
. . . If an applicant wishes to rely on equivalency, I think it is incumbent on that person to bring objective evidence to the interview to establish the equivalency, or to ask for time in order to obtain it. . . .
[8] In the case at hand, the evidence of equivalency submitted to the Officer, both written and oral, was somewhat thin. The applicant provided only a diploma, did not know if she had received credits from the school, and stated that she had not taken education related courses. The Officer informed the applicant of her concerns and the applicant did not respond with further written or oral evidence. I do not think it was incumbent on the Officer to look further than this. The onus is on the applicant to provide convincing evidence, not on the Officer to investigate and produce it. The Officer was not satisfied that the diploma the applicant obtained was a Master's degree from an accredited institution. As the applicant did not use the opportunity given to her to disabuse the Officer of her concerns, nor did she provide convincing evidence to begin with, it was open to the Officer to determine that her points for education should be reduced accordingly.
[9] The applicant further submits that if the Officer was concerned that her job could not provide a decent living for herself and her family, the Officer should have contacted the CEC to determine whether the job offered was adequate enough to provide a decent living. Furthermore, the applicant alleges, the Officer should have contacted the church to address the queries about the applicant's salary.
[10] As this is the same contention as above, I must again disagree. It was not the Officer's duty to investigate details of the applicant's informal job offer, especially as the applicant did not seem to have the knowledge of such details. Furthermore, the Officer did request salary information from the applicant, and was told that her monthly salary had not yet been discussed but would likely be C$500 a month. As the applicant had submitted an approximate salary, there was no duty for the officer to look any further or confirm the accuracy of the applicant's declaration. The Officer informed the applicant of her concerns with regard to work experience, arranged employment, education, and personal suitability, and when the applicant failed to adduce convincing evidence on these issues, it was open to the Officer to determine her lack of suitability based on the information before her. Given these particular circumstances, the Officer did not have a further duty to consider the departmental policy of consultation with the CEC when dealing with "religious personnel" (see Chih-Kai Chen v. Minister of Citizenship and Immigration (June 20, 1997), IMM-461-96, [1997] F.C.J. No. 871 (T.D.) (QL)).
[11] I find therefore that the Officer did not err in law when she refused the applicant's application for permanent residence in Canada, and this application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
November 20, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-688-02
STYLE OF CAUSE: BONG OK KIM v. THE MINISTER OF CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 16, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 20, 2003
APPEARANCES:
Mr. Max Chaudhary FOR THE APPLICANT
Ms. Jamie Todd FOR THE RESPONDENT
SOLICITORS OF RECORD:
Chaudhary Law Office FOR THE APPLICANT
North York, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario