Digests

Ke v. Canada (Minister of Citizenship and Immigration)

IMM-2171-00

2002 FCT 104, Hansen J.

29/1/02

12 pp.

Judicial review of visa officer's refusal of application for permanent residence under independent category--Applicant citizen of China--Graduated with five-year Bachelor of Medicine degree from Shanghai University of Traditional Chinese Medicine--Worked for six years as pharmacologist at Shanghai University--In 1997 undertook PhD studies in medical biochemistry--Visa officer determined applicant not meeting requirements for immigration to Canada upon assessment of her in following NOC categories: microbiologists, chemists, Chinese medical practitioners-- NOC stating minimum employment requirements for occupation of microbiologists and cell and molecular biologists including bachelor's degree in biology or related field--Visa officer determined applicant's degree in medicine not containing sufficient biology study--Applicant submitting visa officer not giving proper weight to course took during five-year medical program, many years experience as pharmacologist and courses undertaken as part of PhD studies--Respondent submitting burden on applicant to prove to visa officer's satisfaction that meets requirements set out in NOC--Application allowed--Throughout affidavit, cross-examination visa officer referring to applicant's education as degree in Traditional Chinese Medicine--Transcript from Shanghai University of Traditional Chinese Medicine clearly indicating applicant enrolled in Faculty of Medicine and period of study five years--Only three-year degree required for applicant to receive full credits for university education-- Bachelor's degree in biology or related field in Canada can be completed in three years of full-time study--Student need only complete core requirement of mandatory science courses and permitted to enrol in courses in other disciplines in fulfilment of degree requirements--That applicant pursued courses in Traditional Chinese Medicine not evidence degree not in biology or field related to biology--Visa officer's repeated references to applicant's degree as one in Traditional Chinese Medicine underlining concern officer's characteriza-tion of applicant's education tainted application of NOC requirements of assessment of application--In Zheng v. Canada (Minister of Citizenship and Immigration) (2000), 5 Imm. L.R. (3d) 151 (F.C.T.D.) Lemieux J. holding visa officer committed reviewable error by interpreting phrase "related" as meaning "equivalent or substitute"--This holding followed in Qi v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 104 (F.C.T.D.)--Underlining need for contextual analysis that considers nature of applicant's degree on case-by-case basis--Assessment of degree according to title not sufficient--Clear from Lemieux J.'s analysis that "equivalence" not required--Degree of connection or association will suffice--Question herein whether applicant's program of study connected or associated in some way with biology--Applicant's work as pharmacologist at University after graduation and doctoral study in medical biochemistry indicating degree, despite being bachelor degree in medicine, should be scrutinized closely for connection with biology--Flexible assessment of transcript, in light of indications, would reveal strong connection to, or association with, field of biology--Officer wrong in requiring applicant have "enough courses in biology in the higher years"--That applicant completed undergraduate degree in field related to biology evidenced by fact foundation courses, i.e. more general courses taken early in program, included biology courses--Also Zheng, Qi indicating applicant's work experience can provide context for visa officer in determination of whether applicant's degree in "related field" to one required--Cases underlining need for visa officer to approach question of related disciplines in contextual manner--NOC requirements cannot be permitted to be applied so strictly as to effect absurd result--Visa officer based decision on erroneous finding of fact made without regard to material before him.