Tao v. Canada (Minister of Citizenship and Immigration), docket IMM-2051-98

Date: 19990430

Docket: IMM-2051-98

BETWEEN:

     CHEN XIAO TAO,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

MCKEOWN J.

[1]      The applicant seeks judicial review of the February 9, 1998 decision of an immigration officer of the Canadian Embassy, Beijing, People's Republic of China, refusing Ms. Tao's application for permanent residence in the Assisted Relative class as a Cook, Foreign Foods (CCDO 6121-126).

[2]      The issues are whether the immigration officer erred in giving the applicant zero units for education and experience and two units for personal suitability.

[3]      The immigration officer had concerns about the credibility of the applicant. There are two factors which justify her concern. The applicant says she spoke English well, but she needed a Cantonese interpreter at the interview and she received zero units for her English, which finding was not challenged. The applicant also stated in her application she was a Grade-1 Pastry Expert but the certification she presented at her interview as well as her answers showed she was only qualified as a Grade-2 Dim Sum preparer.

[4]      The applicant submitted she met all the qualifications and work experience requirements of the definition of Cook, Foreign Foods as set out in the Canadian Classification and Dictionary of Occupations ("CCDO") contrary to the finding of the immigration officer. The immigration officer also assessed the applicant in the alternative category of Cook, second CCDO 6121-131, and deemed her to be "qualified and experienced" in this category. However, since there was no demand in Canada for this occupation, the immigration officer assigned the applicant zero units of assessment for occupational demand. Section 11(2)(a) of the Immigration Regulations precludes an immigration officer from issuing a visa to an individual who has not been awarded at least one unit of assessment for occupational demand. The immigration officer also assessed the applicant under the National Occupation Classification, the new classification system, and found that the applicant failed to qualify within this system as well.

[5]      Unfortunately for the applicant it does not help her that the kitchen where she worked is structured such that cooks do not do the ordering themselves. Ordering is a required element of the CCDO definition of Cook, Foreign Foods. The applicant in her affidavit stated that she obtained the ingredients for her food preparations by filling in a request form. However, before it was forwarded to the purchasing department for execution, she required the consent of the head Dim Sum chef and the manager of the Food and Beverage Department. It was open to the immigration officer on these facts to interpret her role as not being in compliance with the ordering requirements in the CCDO.

[6]      In light of my view on the experience factor, I do not need to consider the other issues raised by the applicant as the applicant must obtain at least one unit on experience to qualify as a Cook, Foreign Foods. However there is one matter that I must consider in light of the applicant's submissions. While the applicant correctly submits that the immigration officer overlooked certain factors in the personal suitability category, I do not agree that this shows that the immigration officer was incorrect in his other assessments of the applicant in various categories. His other assessments do not show that he overlooked any factors. Even if he had awarded 10 units for personal suitability, the applicant would still not qualify as a Cook, Foreign Foods. There was no denial of procedural fairness to the applicant.

[7]      Notwithstanding the able submissions of Mr. Henshall, the application for judicial review is dismissed.

                             (Sgd.) "William P. McKeown"

                                     Judge

Vancouver, British Columbia

30 April 1999

[8]     

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              IMM-2051-98

STYLE OF CAUSE:          CHEN XIAO TAO

     Applicant

                     - and -

                     THE MINISTER OF CITIZENSHIP

     Respondent.

PLACE OF HEARING:          Vancouver, BC

DATE OF HEARING:          April 27, 1999

REASONS FOR ORDER OF THE COURT BY: MCKEOWN J.

DATED:                  April 30, 1999

APPEARANCES:

     Mr. James Henshall      for the Applicant

     Ms. Brenda Carbonell      for the Respondent

SOLICITORS OF RECORD:

     Mr. James Henshall      for the Applicant