Shangguan v. Canada (Citizenship and Immigration), 2007 FC 75

 

 

Date: 20070130

Docket: IMM-2692-06

Citation: 2007 FC 75

BETWEEN:

YUFANG SHANGGUAN

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

 

 

REASONS FOR JUDGMENT

 

 

Pinard J.

 

 

[1]               This is a judicial review of a decision of Mary Keefe, an immigration officer (the Officer), dated March 14, 2006, refusing Yufang Shangguan’s application for permanent residence in the skilled worker category on the basis that she did not meet the requirements under paragraph 75(2)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations).

 

* * * * * * * *

[2]               On April 13, 2004, Yufang Shangguan, the applicant, submitted an application for permanent residence in Canada under the skilled worker category with an intended occupation of Restaurant and Food Services Manager.

 

[3]               The applicant stated that her work history included the following positions:

 

 

 

[4]               The two most recent positions were held by the applicant when she had a temporary one-year work permit that was issued after she completed a Master’s in Business Administration at Royal Road’s University in Victoria in 2004.

 

[5]               On March 14, 2006, the applicant attended an interview at the Canadian Consulate in Buffalo, New York where the applicant’s work experience in China and Canada was discussed.

 

[6]               After the interview, the Officer awarded the applicant zero points for the factor of work experience and concluded that the latter did not meet the minimum requirements as a skilled worker.

 

* * * * * * * *

 

 

 

[7]               The relevant provision of the Regulations is as follows:

75. (2) A foreign national is a skilled worker if (a) within the 10 years preceding the date of their application for a permanent resident visa, they have at least one year of continuous full-time employment experience, as described in subsection 80(7), or the equivalent in continuous part-time employment in one or more occupations, other than a restricted occupation, that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix;

75. (2) Est un travailleur qualifié l’étranger qui satisfait aux exigences suivantes : a) il a accumulé au moins une année continue d’expérience de travail à temps plein au sens du paragraphe 80(7), ou l’équivalent s’il travaille à temps partiel de façon continue, au cours des dix années qui ont précédé la date de présentation de la demande de visa de résident permanent, dans au moins une des professions appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la Classification nationale des professions — exception faite des professions d’accès limité;

 

[8]               The main duties for the occupation “Restaurant and Food Service Managers” in the National Occupational Classification (NOC) are:

 

Main duties

 

Restaurant and food service managers perform some or all of the following duties:

 

·                    Plan, organize, direct, control and evaluate the operations of a restaurant, bar, cafeteria or other food or beverage service

·                    Determine type of services to be offered and implement operational procedures

·                    Recruit staff and oversee staff training

·                    Set staff work schedules and monitor staff performance

·                    Control inventory, monitor revenues and modify procedures and prices

·                    Resolve customer complaints and ensure health and safety regulations are followed

·                    Negotiate arrangements with suppliers for food and other supplies

·                    Negotiate arrangements with clients for catering or use of facilities for banquets or receptions.

 

 

 

* * * * * * * *

 

 

 

[9]               The relevant portion of the impugned decision states the following:

. . . As you will recall during your interview of today’s date, all of your stated work history was reviewed with you. The duties referred to in your employment reference letters imply a level of responsibility. However, your verbal description of your duties with each of these employers revealed a lack of fiduciary responsibility. As a store manager with Liberty Café, Vancouver, BC, you were not privy to financial reports or profit/loss statements. You were not tasked with the responsibility of conducting daily banking transactions or general accounting. Given the fact your employer was on the premises every other day, it was unclear what managerial duties you performed.

 

 

 

* * * * * * * *

[10]           The applicant submits that there are three bases on which to grant the judicial review:

(1)   the Officer disregarded or misconstrued evidence;

(2)   the Officer misinterpreted the requirements for the assessment of work experience; and,

(3)   the Officer breached the duty of fairness owed to the applicant.

 

 

 

* * * * * * * *

 

 

 

[11]           Dealing first with the applicant’s second argument concerning the interpretation made by the Officer of the requirements for the assessment of work experience, I agree with the respondent that the onus is on the applicant to fully satisfy the visa officer of the existence of all the positive elements in her application. The applicant, for her part, submits that the Officer imported her own requirements to the occupation description of “Restaurant and Food Service Managers” by deciding that responsibility for financial reports and payroll, as well as liability of the business, are duties of managers.

 

[12]           From the Officer’s decision it is clear that she considers responsibility for financial matters to be part of the duties required for the “Restaurant and Food Service Managers” occupation. She dismisses the idea that the applicant had a managerial position at Liberty Café, in part, because she found that the applicant was not privy to financial reports or profit/loss statements and that she was not tasked with the responsibility of conducting daily banking transactions or general accounting.

 

[13]           The NOC states that persons who fit within the occupation “Restaurant and Food Service Managers” perform some or all of the duties listed under this occupation. None of the listed duties refer to financial reports or responsibility for banking transactions or general accounting. The list does include monitoring revenues; however, since an applicant need only have performed some of the duties listed, monitoring revenues is not a mandatory requirement for this occupation. It is possible that duties relating to accounting and other financial matters could be read into the first of the listed duties “Plan, organize, direct, control and evaluate the operations of a restaurant, bar, cafeteria or other food or beverage service”; however, if general accounting and responsibility for banking transactions are considered to be important duties for this occupation they could have been added to the list.

 

[14]           In my opinion, the Officer interpreted the NOC duties relevant to the occupation of Restaurant and Food Service Manager in an unreasonable manner by importing extraneous criteria into the occupation’s duties. The applicant correctly submitted that it is a reviewable error for a visa officer to import her own requirement to the NOC occupational description (see Noman v. Minister of Citizenship and Immigration, 2002 FCT 1169, and Javadimia v. Minister of Citizenship and Immigration, 2002 FCT 892). In my view, the Officer’s error of law is sufficient to warrant the intervention of the Court without having to consider the applicant’s other arguments.

 

[15]           Consequently, the application for judicial review is allowed, the impugned decision is set aside and the matter is sent back for reconsideration by a different immigration officer.

 

 

 

“Yvon Pinard”

Ottawa, Ontario

January 30, 2007

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-2692-06

 

STYLE OF CAUSE:                          YUFANG SHANGGUAN v. THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:                    Vancouver, British Columbia

 

DATE OF HEARING:                      January 10, 2007

 

REASONS FOR JUDGMENT:       Pinard J.

 

DATED:                                             January 30, 2007

 

 

 

APPEARANCES:

 

Mr. Dean D. Pietrantonio                                  FOR THE APPLICANT

 

Ms. Helen Park                                                FOR THE RESPONDENT

 

 

 

SOLICITORS OF RECORD:

 

Dean D. Pietrantonio                                        FOR THE APPLICANT

Vancouver, British Columbia

 

John H. Sims, Q.C.                                          FOR THE RESPONDENT

Deputy Attorney General of Canada