Xu v. Canada ( Minister of Citizenship and Immigration )
IMM-5537-98
Pelletier J.
6/10/99
10 pp.
Application for judicial review of visa officer's (VO) decision refusing visa after assessing applicant as engineer and civil engineering technician-VO found that, on generous assessment, applicant could read, write English with difficulty, ability to speak, understand English seriously limited-Applicant seeking judicial review on ground not assessed in chosen profession (civil engineer), VO double-counted English as factor by including it in consideration of intended occupation-Application allowed-Individuals entitled to be assessed on basis of chosen occupation even if VO does not think they will embark upon their occupation, provided they meet occupational qualifications stipulated by Regulations (herein, defined in National Occupational Classification (NOC))-NOC requirements do not explicitly speak of proficiency in English or French-Distinction to be drawn between present occupational requirements, such as training and experience, and prospective occupational requirements, which will have to be satisfied after arrival in Canada-Prospective occupational requirements will be assessed by competent authority after candidate has settled in Canada-VO not necessarily in position to judge how individual will succeed in that assessment-No doubt some of candidates granted visas to come to Canada as engineers will not pass licensing examinations-Simply risk inherent in system-Canadian Council of Professional Engineers material providing minimum of 12 months experience in Canada required to be eligible for licensing-Applicant would therefore have one year's experience of working in Canada in which to improve English prior to writing examinations-VO therefore exceeded jurisdiction in purporting to assess whether applicant could successfully pass licensing examinations-Applicant met requirements of NOC to extent any candidate can meet them prior to being settled in Canada-For purposes of assessment, applicant ought to have been treated as applying under occupation of civil engineer, which would have given applicant total of 72 assessment units-Applicant denied visa on basis of points, not by exercise of negative discretion-Therefore, no reason why it cannot be sent back for reassessment by different VO on basis of intended occupation as civil engineer-Question certified: Whether within jurisdiction of VO to decline to assess visa applicant with respect to occupation designated by applicant on basis of officer's judgment that applicant will probably be unable to satisfy Canadian licensing requirements in applicant's designated occupation on basis of factors taken into account elsewhere in Schedule I, for example, applicant's proficiency in English or French; or any other factors-Immigration Regulations, 1978 SOR/78-172, Schedule 1.