Date: 20061027
Docket: IMM-5795-05
Citation: 2006 FC 1294
Ottawa, Ontario, October 27,
2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
GURBRINDERJIT
SINGH RANDHAWA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision dated September 16, 2005 by a visa officer refusing Mr. Randhawa’s
application for a work permit. Mr. Randhawa is a citizen of India and an assistant cook specializing in
the North Indian cuisine. The visa officer questioned the applicant about food
hygiene and decided he was not qualified to perform the cook’s job he was
offered in Toronto.
Facts
[2]
Mr. Randhawa received a job offer as a full time
assistant cook at the Mantra Indian Restaurant in Toronto (Mantra). On June 6, 2005, Mr. Hemant Bagwani, the General Manager
of Mantra, applied to Human Resources and Skills Development Canada (HRSDC) for
a positive Labour Market Opinion Confirmation, explaining that he required Mr.
Randhawa’s skills as an assistant cook specializing in North Indian cuisine to
assist Mantra’s head chef and train its staff. HRSDC confirmed the job offer
and provided a positive Labour Market Opinion on July 5, 2005.
[3]
On July 13, 2005, Mr. Randhawa applied to the
Canadian High Commission in New Delhi for a work permit. On August 24, 2005, he attended an assessment
interview.
[4]
At the interview, the visa officer asked Mr.
Randhawa questions about his sister in Canada, his education, and Indian cooking in general. With respect to
cooking, Mr. Randhawa answered questions about Indian spices and kitchen
hygiene. The visa officer asked questions about how to verify the freshness of
chicken and about refrigerating meat. At the end of the interview, the visa
officer advised Mr. Randhawa that she would not issue him a work permit because
she was concerned that he would be unable to observe principles of hygiene. The
job offer from Mantra listed as one of Mr. Randhawa’s duties as “maintaining
high standards of hygiene and sanitation”. Accordingly, the visa officer
advised Mr. Randhawa that she would keep his file open for 30 days and require
that he complete a course in proper kitchen hygiene, at which time a final
decision would be made following an interview at which Mr. Randhawa would be
required to demonstrate that he was able to function with attention to proper
hygiene in a kitchen environment.
[5]
Mr. Randhawa enrolled in a Food Hygiene and
Kitchen Operations course through the Dare Education Group from August 26, 2005
to September 8, 2005. On September 9, 2005, Mr. Randhawa submitted to the visa
officer a certificate stating that he completed the course with modules in food
hygiene, safe food handling, and kitchen operations and received a “Grade ‘A’”
standing.
[6]
On September 16, 2005, Mr. Randhawa attended a
second interview. The visa officer asked Mr. Randhawa questions concerning
cross contamination, causes of food poisoning, precautions when using eggs,
assessing the freshness of eggs, pest control, re-freezing thawed meat, the
proper internal temperature for cooking poultry, and dishwashing. Mr. Randhawa
answered every question.
[7]
As indicated in the CAIPS notes, the visa
officer concluded that Mr. Randhawa was unable to perform the duties required
of an assistant cook:
Conclusions:
Despite his stated completion of a hygiene course, I am not satisfied that the
applicant would be able to adequately observe principles of hygiene as required
by his job contract. I also note that I checked with several other people in
the office about his explanation as to how to test whether or not chicken is
fresh (i.e., the explanation about the bloated chicken) and none of them had
ever heard of it, either. Said before that chicken could be kept in the fridge
for 3 weeks before it goes bad.
Not
satisfied applicant can perform the duties sought. Not satisfied he meets reqts
of job confirmation letter.
The visa officer issued a written decision
letter refusing Mr. Randhawa’s application for a work permit. The visa officer
selected from the form letter the following two reasons applicable to her
refusal:
Although
you have presented a confirmation letter from Human Resources and Skills
Development Canada referring to the economic effect of your employer’s job
offer to a foreign national, I am not satisfied that you are able to perform
the work sought as required by R200(3)(a) of the Immigration and Refugee
Protection Regulations.
Although you have
presented a confirmation letter from Human Resources and Sills Development
Canada, I am not satisfied that you meet the requirements of the job as
specified in the job offer confirmation.
[Emphasis added]
Issue
[8]
The issue is did the visa officer err in
refusing Mr. Randhawa’s application for a work permit.
Legislation
[9]
Paragraph 200(3)(a) of the Immigration and
Refugee Protection Regulations provides:
|
Division 3
Issuance of Work Permits
Work permits
200.
[…]
Exceptions
(3) An officer shall not issue a work permit to a foreign
national if
(a) there are reasonable grounds to believe that
the foreign national is unable to perform the work sought;
|
Section 3
Délivrance du permis de travail
Permis de travail
200. […]
Exceptions
(3) Le permis de travail ne peut être
délivré à l’étranger dans les cas suivants:
a) l’agent
a des motifs raisonnables de croire que l’étranger est incapable d’exercer
l’emploi pour lequel le permis de travail est demandé;
|
Accordingly, Mr. Randhawa’s application stands
or falls depending on whether there are reasonable grounds to believe that he
is unable to perform the work of an assistant cook. The visa officer found
specifically that Mr. Randhawa was unable to “maintain high standards of
hygiene and sanitation”.
Standard of
Review
[10]
The issue is a question of mixed fact and law.
The facts must be applied to paragraph 200(3)(a) of the IRP Regulations
regarding work permits. This regulation coincidentally incorporates a
reasonableness standard, i.e. did the visa officer have reasonable grounds to
believe that the applicant is capable to perform the work sought. Accordingly,
the Court will review this matter on a reasonableness simpliciter standard.
I adopt the reasoning of Mr. Justice de Montingny in Ouafae v. Canada (Minister of Citizenship and
Immigration), 2005 FC 459 at paragraphs 20 and 21.
Analysis
[11]
Mr. Randhawa submits that the visa officer
clearly erred in reaching her conclusion. He argues that the visa officer, not
being an expert on food hygiene, was in no position to conclude that his
cooking methods were not sufficiently hygienic to allow him to fulfill his job
duties in Canada.
[12]
This Court in Chen v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 594 per Mr. Justice Blais
held that visa officers are not in a position to assess the employment skills
of an applicant and specifically held that it is improper for a visa officer to
assess the employment skills of a chef. Justice Blais held at paragraph 23:
Are
visa officers going to assess employment skills of engineers?, of chefs?
Obviously, they are not in a position to do so.
[13]
I agree that a visa officer is not an expert on
food hygiene, yet the visa officer “grilled” the applicant on this subject. The
Court concludes that the intense questioning of the applicant by the visa
officer on his ability to “maintain high standards of hygiene and sanitation” was
an unreasonable basis to form the conclusion that there were reasonable grounds
to believe that the applicant is unable to perform the assistant cook job
offered by the Mandra Indian restaurant in Toronto.
[14]
Mr. Randhawa has seven years experience as an assistant
cook. Reference letters from his previous restaurant employers attest to his
skill and ability. He successfully completed, at the visa officer’s behest, a
food handling training program recognized by the Government of India. Mantra
has indicated in its business plan that it will train its staff:
Employees
will be trained not only in their specific operational duties but also in the
philosophy and applications of our concept. They will receive extensive
information from the chef and be kept informed of the latest information on
healthy eating. The sommelier will also train the staff on the wines.
[15]
In her cross-examination on September 14, 2006,
the visa officer acknowledged that the National Occupational Classification
(NOC) for cooks does not specifically list the duty to maintain high standards
of hygiene and sanitation. Instead, the visa officer imported this requirement
from the description of duties provided in Mantra’s job offer letter.
[16]
The visa officer sought to assess Mr. Randhawa’s
fitness for this particular job by applying her own standards of hygiene and
sanitation. There is nothing in the evidence to indicate that she obtained
objective standards against which to assess Mr. Randhawa’s level of fitness.
Indeed, the only objective measure of fitness is the completion of the food
hygiene training course at the visa officer’s request.
[17]
The visa officer refused to consider the
training that Mr. Randhawa would receive in the course of his employment with
Mantra. At paragraph 15 of her affidavit, she states:
An
applicant is required to satisfy a visa officer that he/she meets the
requirements for a work permit, including being able to perform the duties
required for the prospective position, prior to visa issuance. Therefore,
the fact that the Applicant would “have to be trained in the restaurant by-laws
for Toronto,
including the hygiene system” is immaterial to me.
Moreover, knowledge of what specific by-laws do and don’t say was not a
requirement of the job, nor was I assessing his knowledge of any regulations or
systems. The ability to “maintain high standards of hygiene and sanitation,” on
the other hand, was a requirement, and he had not satisfied me that he could
meet this requirement. […]
[Emphasis added]
While it is reasonable to require that an
applicant satisfy the job requirements of a particular position before
obtaining a work visa, it is unreasonable not to take into account some measure
of job orientation that would inevitably be provided to the claimant.
[18]
For these reasons, this application for judicial
review will be allowed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
This
application for judicial review is allowed, the decision of the visa officer
dated September 16, 2005 refusing the applicant’s work permit is set aside and
the application for a work permit is referred to another visa officer for
re-determination including an interview with the applicant.
“Michael
A. Kelen”
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