Chen v. Canada (Minister of Citizenship and Immigration), docket IMM-4594-97

Date: 19990709

Docket: IMM-4594-97

BETWEEN:

     ZANE LING CHEN

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

LEMIEUX J.:

INTRODUCTION

[1]      This is a judicial review application, pursuant to section 18.1 of the Federal Court Act, R.S. 1985, c. F-7, as amended, by Zane Ling Chen (the "applicant") who seeks to set aside a decision dated September 27, 1997 by Visa Officer, Lisa Holliday, (the "Visa Officer") denying his application for permanent residence with an intended occupation of COOK-FOREIGN FOODS, (CCDO) 6121-126.

THE FACTS

[2]      The applicant is a citizen of India, born July 4, 1975. In 1994, the applicant moved to New York City where, that year, he became employed at Song Vietnamese Restaurant and commenced his employment as a kitchen helper. He received a promotion and, at the time of his application for permanent residence, held the position of Head Chef/Manager.

[3]      On April 24, 1997, the applicant, with the assistance of his solicitors, applied for permanent residence in Canada to the Canadian Consulate General ("CCG") in Buffalo, New York. His application, which included his wife as a dependant, was submitted under the Independent Immigrant category pursuant to subsection 8(1) of the Immigration Regulations, 1978, SOR/78-172, as amended, (the "Regulations").

[4]      Mr. Chen's application for permanent residence ("PRA") indicates he attended seven years of elementary/primary school and five years of secondary/high school. The PRA indicates the applicant did not have any post-secondary education or culinary formal training. His PRA further indicates he was unemployed from April 1987 to June 1992 and worked as a self-employed musician from June 1992 to June 1994 when he left India at age 19 for the United States.

[5]      As part of his PRA, Mr. Chen submitted an undated letter "To Whom So Ever it may concern" from Song Vietnamese Restaurant, the material part of which reads:

Mr. Chen has been employed by our restaurant since August of 1994. He started off working in the kitchen as helper and eventually became Head Chef/Manager for our restaurant, a position he still presently holds. His duties are professional in nature, and he is employed by our restaurant on a full time basis.

As part of his responsibilities Mr. Chen prepares specialized Vietnamese dishes. Vietnamese culinary items that he prepares regularly for the restaurant includes various types of soups, noodles and entrees which require the use of lemongrass, fish sauce and various herbs and spices that are synonymous with traditional Vietnamese cuisine. He also prepares the marinade used for the fish, duck, crab, shrimp and oyster dishes. Mr. Chen personally selects different types and quantities of seafood and ingredients from local markets and sets his Menu accordingly.

Other duties that Mr. Chen performs for the restaurant, includes ordering supplies daily for the restaurant, and liquor for the bar. He also sets work schedules for his fellow associates and kitchen staff. His own schedule requires him to work the entire week, with Sunday being his day off.

[6]      The applicant's solicitors, in their covering letter to the Canadian Consulate General in Buffalo, N.Y., enclosing the applicant's PRA said, inter alia,

Upon moving to the United States in 1994, Mr. Chen became employed with Song Vietnamese Restaurant where he commenced his employment as a kitchen helper. After proving his abilities, Mr. Chen received a promotion and holds the position of "Head Chef/Manager".

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THE VISA OFFICER'S DECISION

[7]      By letter dated October 1, 1997, the Visa Officer advised Mr. Chen, through his solicitors, he did not meet the requirements for immigration to Canada. The material part of her letter reads:

I have carefully assessed and investigated your training and experience in the occupation listed above based on the information you provided in your application, and have concluded that you are not qualified to work in this occupation in Canada, as you do not have the minimum qualifications specified in the Canadian Classification and Dictionary of Occupations and National Occupational Classification. I have therefore determined that you do not qualify for selection as a Cook, Foreign Foods.

I therefore assessed you as a Cook's Helper, CCDO 6121-134, an occupation for which you appear to have the necessary training and experience and could reasonably be expected to follow in Canada.

Subsection 11(2) of the Regulations does not permit issuance of an immigrant visa to applicants, in the class in which you have applied, who have received zero units of assessment for the occupational factor. The occupational factor for Cook's Helper is currently zero.

In addition, you have obtained insufficient units of assessment to qualify for immigration to Canada. The minimum required is 60, which includes a 5 unit bonus if you are applying in the Assisted Relative category.

[8]      The Visa Officer in terms of her assessment in the classification of Cook's Helper added:

Note that you have not been awarded any units of assessment for the Personal Suitability Factor as units for this factor can only be awarded by an officer during a personal interview. In the case of interview, the minimum units of assessment required is 70. Even if you were awarded the maximum of 10 units for personal suitability you would still not reach the minimum units required.

Please note that in the event you would like us to consider any new information you must submit a newly completed application and the required processing fees.

[9]      The units of assessment in the occupation of Cook's Helper, CCDO 6121-134 for the applicant were as follows:

     Age "                          10 units

     Occupational Factor "                  0

     Specific Vocational Preparation (SVP)         

     or

     Education / Training Factor (ETF)          3

     Experience                          2

     Arranged Employment                  0

     Demographic Factor                  8

     Education                          10

     Knowledge of English and

     French Languages                      9

     Assisted Relative Bonus                  5

     Total                              47

    

[10]      The solicitors to the applicant requested that the Visa Officer elaborate on the reasons for her refusal. On October 27, 1997, she advised the applicant's solicitors as follows:

The applicant does not have any post-secondary education or training as a head chef. The application indicates that he worked as a cook's helper. Your letter indicates that he became a "head chef" a short while later. This applicant's training, qualifications and experience are not commensurate with the specific vocational preparation of a head chef.

THE AFFIDAVITS

[11]      The applicant asserted the following:

(a)      The letter from his employer Song Vietnamese Restaurant indicates he has been Head Chef/Manager for several years;

(b)      He has nearly three years on-the-job training which is well in excess of the minimum required;

(c)      He has three years' experience working as the Head Chef in a Vietnamese Restaurant;

(d)      He has the necessary training and experience to work in his intended occupation in Canada.

[12]      The Visa Officer deposed on behalf of the respondent. She noted:

(a)      That the applicant's PRA indicates he found work in August 1994 at Song Vietnamese Restaurant and that he works as Head Chef/Manager;

(b)      The undated letter of reference indicated the applicant "started off working in the kitchen as helper and eventually became Head Chef/Manager";

(c)      The specific vocational training factor (SVP) for Cook, Foreign Foods, requires the applicant to "have more than two years and up to and including four years of formal occupational education or training in order to be considered as qualified to follow that occupation in Canada". She concluded:

In light of this and based on the information provided in the application for permanent residence, I was not satisfied the Applicant was qualified to work in the occupation of "Cook, Foreign Foods" in Canada.

[13]      In terms of providing the applicant an interview, the Visa Officer noted section 11.1 of the Regulations did not require an interview if an applicant does not have at least one unit of assessment in the "experience factor" or "occupational factor" and said:

In this regard, I am of the opinion that the Applicant does not have any units of assessment under the "experience factor", and I therefore felt that nothing would be gained by inviting this Applicant for an interview.

THE ISSUE

[14]      The fundamental issue raised by the applicant is whether the Visa Officer erred in law in misinterpreting the SVP and experience factors found in Schedule I to the Immigration Regulations. Specifically, it was the Visa Officer's application of the SVP factor which led to her conclusion the applicant was not qualified to work in his intended occupation in Canada and also resulted in zero units of assessment for the experience factor making a personal interview non-compulsory. The Visa Officer did not, as such, interpret the experience factor. A proper interpretation of that factor arose from comments in written argument which led to post-hearing submissions requested by the Court.

[15]      The applicant also argued fairness, in this case, which required the Visa Officer to interview the applicant in order to provide the applicant with an opportunity to disabuse the Visa Officer with any concerns she may have.

STANDARD OF REVIEW

[16]      The standard of review of a decision by a visa officer is set out in the Federal Court of Appeal's decision in Chiu Chee To, May 22, 1996, A-172-93, where Stone J.A., for the Court, said this:

Here, the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In [1982] 2 S.C.R. 2">Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the Court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not intervene.

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THE IMMIGRATION REGULATIONS

[17]      For an applicant in the independent selection criteria category, subsection 8(1) of the Immigration Regulations, 1978, SOR/78-172, (the "Regulations") provides that, subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependents will be able to become successfully established in Canada, a visa officer shall assess that immigrant on the basis of each of the factors listed in Column I of Schedule I to the Regulations.

[18]      Subsection 8(2) of the Regulations requires a visa officer to award to an immigrant who is assessed on the basis of the factors listed in Column I of Schedule I, the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he or she shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor.

[19]      Section 9 of the Regulations indicates, in the applicant's situation, a visa officer may issue an immigrant visa to the applicant and his accompanying dependants if he is awarded at least 70 units of assessment.

[20]      Schedule I to the Regulations has three columns: Column I identifies the factors such as education, specific vocational preparation, experience, occupational demand, arranged employment, age, knowledge of English and French, etc., Column II sets out the criteria for each factor and Column III provides for the maximum number of units for each factor.

[21]      In terms of the application before me, the relevant factors are specific vocational preparation, experience and occupational demand. The references below are to the Schedule I when the CCDO system was in effect at the time of the applicant's PRA. The NOC now governs.

[22]      Specific vocational preparation (SVP) was factor 2, had a maximum number of eighteen units and the criteriae are described in the following way:

To be measured by the amount of formal, professional, vocational, apprenticeship, in-plant or on the job training specified in the Canadian Classification and Dictionary of Occupations, printed under the authority of the Minister, as necessary to acquire the information, techniques and skills required for the average performance of the occupation in which the applicant is assessed under Item 4 (occupational demand). Units of assessment shall be awarded as follows:

(a) when the amount of training required is up to and including30 days, 1 unit;

(b) when the amount of training required is more than 30 days, up to and including three months, 3 units;

(c) when the amount of training required is more than three months, up to and including six months, 5 units;

(d) when the amount of training required is more than six months up to and including one year, 7 units;

(e) when the amount of training required is more than one year up to and including two years, 11 units;

(f) when the amount of training required is more than two years up to and including four years, 15 units;

(g) when the amount of training required is more than four years up to and including ten years, 18 units;

(h) when the amount of training required is more than ten years, 18 units.

[23]      Experience was factor 3 and the maximum possible units were 8, subject to internal limitations. The criteria description for experience was described in the Regulations in the following way:

Units of assessment shall be awarded for experience in the occupation in which the applicant is assessed under Item 4..., as follows:

(a) when the specific vocational preparation time needed is up to and including three months, 2 units for the first year of experience;

(b) when the specific vocational preparation time needed is more than three months up to and including twelve months, 2 units for each year of experience, not exceeding two years;

(c) when the specific vocational preparation time needed is more than one year up to and including four years, 2 units for each year of experience not exceeding three years; and

(d) when the specific vocational preparation time needed is more than four years, 2 units for each year of experience.

[24]      Occupational demand was factor 4 and the maximum number of units was 10. The criteria description for this factor was as follows:

Units of assessment shall be awarded on the basis of employment opportunities available in Canada in the occupation that the applicant is qualified for and is prepared to follow in Canada, such opportunities being determined by taking into account labour market demand on both an area and national basis.

[25]      The CCDO is incorporated by reference into the Regulations. The applicant applied for the occupation "Cook, Foreign Foods", CCDO 6121-126. The CCDO's description for that occupation is as follows:

Prepares and cooks foreign foods according to traditional recipes and methods for consumption in eating establishments;

Performs duties similar to those of 6121-111 CHEF-COOK, GENERAL (cater. & Lodg.) employing traditional methods and utensils. Orders speciality foods or ingredients. Prepares and serves special dishes at patrons table. Performs feats of dexterity to entertain customers while preparing food, if required. Supervises activities of kitchen workers.

[26]      Section 11.1 of the Regulations provides that a visa officer is not required to conduct an interview unless, based on a review of the visa application and documents submitted in support thereof, the immigrant is awarded at least one unit of assessment for each of the factors of experience and occupational demand. My emphasis stresses the need for visa applicants to provide full and complete documentation in support of their application. They must put their best case forward. If they do not do so, they cannot expect the visa officer to do their work.

CONCLUSIONS

     (a)      The SVP Factor

[27]      The SVP factor is the factor defining the training time necessary to acquire the knowledge or skills for the average performance of the intended occupation. Depending upon the occupation, the required training time could be the completion of a university degree, the acquisition of a professional licence, attendance at a vocational or technical school, time as an apprentice or "on-the-job training". Each occupation in the CCDO has a training time in one or other of the forms described above attached to it.

[28]      "On-the-job training" is defined in Appendix B of the CCDO under the heading Special Vocational Training as follows:

Any training acquired while serving as a learner or trainee on-the-job under instruction of a qualified worker, and intended as preparation for a specific job.

[29]      If an applicant does not meet the training time criteria, that person is not qualified for the intended occupation, the factor 4 reference to occupational demand.

[30]      In the case at bar, the applicant had no formal training at a food school or culinary school; any training he would gain as a Cook, Foreign Foods, is on-the-job.

[31]      The applicant, in his affidavit, was in error as to the amount of training time required for the intended occupation. His belief was such time was normally nine years of general education and three months of on-the-job training. Applicant's counsel conceded that the Visa Officer was correct to state that the training time for the applicant's designation is two to four years. This concession is contained in applicant's counsel's supplementary written arguments dated March 30, 1998.

[32]      However, this concession did not end the matter. Counsel for the applicant, in their supplementary memorandum, attacked two statements made by counsel for the respondent in the respondent's reply memorandum. In that memorandum, the respondent had said:

13.      The Applicant at best had less than three years of on the job training as a cook by the time his application was assessed by the visa officer.

14.      Contrary to the Applicant's assertion at paragraph 43 of his memorandum, the CCDO requires that the Applicant have four years of training in order to be qualified as a cook or chef.

[33]      Applicant's counsel in response said the applicant was not required to have four years of training. The applicant is required to have more than two years, but less than four years of training, according to the SVP. Applicant's counsel added this in his supplementary memorandum:

5.      The Applicant's employment reference and IMM-008 indicate that he has worked as a Cook at Song Vietnamese Restaurant since 1994. At the time of the Visa Officer's assessment of the Applicant's application for permanent residence, the Applicant had been working as a Cook, Foreign Foods for more than three years.

[34]      In my view, applicant's counsel has no factual basis for his statement the applicant worked as a Cook, Foreign Foods, since 1994.

[35]      First, such evidence was not before the Visa Officer and would be excluded under the principle in Quintero v. Canada (M.E.I.) (1995), 90 F.T.R. 251 (T.D.). Second, the applicant had not worked as a cook before he came to New York. His letter of reference says he started as a kitchen helper and "eventually" became a Head Chef/Manager. In my view, it defies common sense the applicant would be performing the occupation of Cook, Foreign Foods, immediately upon his arrival in New York in 1994 when he had never worked as a cook before.

     (b)      The experience factor

[36]      Two questions arise. First, can on-the-job training be counted as experience in the intended occupation. Second, even if job training cannot be counted, on the facts of this case, should not the applicant be awarded units of experience based on the minimum training time of two years because of work experience of three years. With respect to the first question, as a preliminary point, the respondent observed, quite rightly in my view, there is no evidence the applicant received any on-the-job training at Song Vietnamese Restaurant or, if so, the length of that training. I hold the intent of the Regulations requires a structured job training program where experience, knowledge and teaching are imparted in some formal manner. Something more than being on the job is required.

[37]      In terms of the substantive matter, the structure of the Regulations favours the respondent's position. The experience factor is keyed to factor 4 (Occupational Demand), which refers to assessment in the occupation in which the applicant is qualified. In my view, for the purposes of the Immigration Regulations, a person cannot have any years of experience performing in an occupation for which that person is not qualified. The result is that, until a person completes the job training, he or she does not gain any experience units in the intended occupation until completion time. In this respect, I adopt the analysis of MacKay J. in Yu v. Minister of Employment and Immigration, 36 F.T.R. 296, where he said at page 301:

... if the applicant is not deemed qualified for the occupation he or she intends to pursue in Canada, then regardless of the occupational demand in Canada for that occupation, no units of assessment are to be awarded under factor 4, or under factor 3, for Experience.

[38]      In terms of the second argument, applicant's counsel could not point to any specific facts to bring his argument home. Simply put, the record does not disclose the applicant underwent any job training, the length of that job training and when it was completed. The applicant has not satisfied the onus required of him under the Regulations.

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FAIRNESS

[39]      The applicant asserts the Visa Officer had a duty to bring any negative impressions or concerns to the applicant's attention and to give the applicant an opportunity to address those concerns before issuing a decision.

[40]      The affidavit of the Visa Officer did not disclose she had any negative impressions or concerns. She simply applied the Regulations based on the information supplied by the applicant in its PRA. In Hajariwala v. Canada (M.E.I.), [1989] 2 F.C. 79, Jerome A.C.J. stated it was the duty of an applicant for a visa or permanent residence in Canada to bring forward all of the documentation proposed to rely upon. In Lam v. Canada (M.E.I.), IMM-4458-97, August 31, 1998, Rothstein J., as he then was, stated this in a case which is very close to the case at bar:

The application for permanent residence was denied without a personal interview. The applicant says he was entitled to a personal interview so he could clarify his training and experience as a Chef-Cook for the visa officer. However, his application for permanent residence is clear. He applied to work as a Chef-Cook and there was nothing in the application or material he submitted that demonstrated training or experience in that occupation. In other words, there was nothing to clarify.

At best, the applicant must be saying that his application is ambiguous and that when he included in his work history that he was a manager/trainee and assistant manager at McDonald's, that this placed the onus on the visa officer to inquire, through a personal interview, whether those occupations gave him training or experience as a Chef-Cook. However, if correct, this argument gives an advantage to applicants for permanent residence who file ambiguous applications. This cannot be correct.

[41]      For all of these reasons, the application for judicial review is dismissed.

     "Francois Lemieux"

    

     J U D G E

OTTAWA, ONTARIO

JULY 9, 1999