Date: 19981023
Docket: IMM-5181-97
BETWEEN:
YI ZHANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review from the decision of an immigration officer whereby the applicant was refused permanent residence in Canada. This application was filed on December 16, 1997 and is made pursuant to subsection 18.1 (2) of the Federal Court Act and subsection 82.1 (2) of the Immigration Act. The applicant seeks an order of certiorari quashing the decision of the immigration officer, Merrill Clarke, dated November 5, 1997 and an order of mandamus directing the respondent to process the applicant"s application for permanent residence, or in the alternative, referring the matter to a different visa officer for a redetermination of the application for permanent residence in Canada.
FACTS
[2] The applicant, Mr. Yi Zhang, a citizen of China, applied for permanent residence in Canada to the Canadian High Commission, Immigration Section, in London, in the independent category of skilled worker, Head Chef/Cook, foreign foods. On November 4, 1997, the applicant was interviewed by immigration officer Merrill Clarke. By letter dated November 5, 1997, the applicant was notified that his application was refused. The officer made the following assessment:
| Age 10 |
| Occupational Demand 00 |
| Specific Vocational Preparation 11 |
| Experience 06 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 15 |
| English 06 |
| French 00 |
| Bonus 05 |
| Personal Suitability 01 |
| TOTAL 62 |
SUBMISSIONS
[3] The applicant submits that the officer erred in assessing the applicant"s personal suitability, occupational factor, education and language ability. It is submitted that more than one unit should have been awarded for personal suitability; the officer took into consideration improper considerations and failed to consider the offer of employment dated August 24, 1996 and that the applicant has a brother-in-law in Canada. With respect to the occupational factor, it is submitted that the officer failed to consider his 15 years of work experience as a Chef/Cook and relied on improper considerations as shown in paragraphs 9 to 12 of the respondent"s affidavit. It is also submitted, in the written memorandum, but not argued at the hearing, that the officer took into consideration the applicant"s experience which had already been assessed under Experience, factor 3 of Schedule I. As for the Education, it is submitted that the officer failed to consider that the applicant has in excess of four years of training in the cooking industry and that his combined training, education and experience is equivalent to a general chef position. It is further submitted that the applicant was not provided with the opportunity to produce further evidence in support of his qualifications. Lastly, the applicant submits that the officer erred in assessing his English ability and should have been awarded a minimum of 8 points given that he was able to converse without an interpreter, he has earned various English certificates and has resided in the United Kingdom since 1991.
[4] The respondent submits that the officer assessed the applicant as a professional cook and chef and found that he did not have the necessary qualifications, training and experience as set out in the CCDO. With respect to the issue of education, it is submitted that there was an absence of proof of adequate culinary training and that the applicant did not provide any information on the equivalence or accreditation of his culinary qualifications in China. This consisted in a one year course in Shanghai and an Essential Food Hygiene certificate which was a basic six hours course. It is argued that the applicant has the onus to provide the documentary evidence establishing the equivalence or Canadian accreditation and that the officer was not required to provide the applicant with a specific opportunity to respond to these concerns. Further, the officer reviewed the applicant"s experience as a professional cook and did not find the evidence convincing as no "official" documents confirming his employment were submitted and the evidence regarding his employment and the manner in which he received payment for his services was not credible. Because the visa officer was unable to ascertain a minimum of one year of experience as a professional cook, the applicant was assessed as a Cook, Second, and because there is no occupational demand for Cook, Second, the application was refused.
ISSUES
The applicant raises the following issues:
| 1. Whether the immigration officer failed to observe a principle of natural justice, procedural fairness or other procedural requirements. |
| 2. Whether the immigration officer based his decision on an erroneous finding of fact. |
| 3. Whether the immigration officer erred in law in refusing the applicant for permanent residence. |
DISCUSSION
Personal suitability
[5] The officer awarded one unit for personal suitability. This assessment is challenged on the basis that it was based on improper considerations and that it failed to consider the letter of employment and the fact that the applicant had a brother-in-law in Canada willing to support the applicant and his family. Under this factor, the officer is required to assess the applicant"s initiative, motivation and adaptability to determine whether he or she will be successful in his field in Canada. The officer has a broad discretion when making this sort of determination: Iarochenko v. Canada (Minister of Citizenship and Immigration) , [1997] F.C.J. 150.
[6] The officer"s affidavit shows that the officer"s assessment was based on the fact that the applicant failed to become fluent in English despite his years of residence in the United Kingdom and that he had not availed himself of the opportunity to take professional culinary courses. The officer also considered that the applicant did not provide any information regarding his sources of income and funds. The officer took a negative view of these facts.
[7] I am satisfied, from the facts of this case, that the applicant"s language ability should not have been taken into consideration to assess his personal suitability: Dragone v. Canada (MCI) (1995), 31 Imm. L.R. (2d) 97 (F.T.D.). Also, I fail to see how the applicant"s decision not to enroll in professional culinary courses at the age of 42 is a reflection of his lack of motivation, initiative and ability to successfully establish himself in Canada, when the documentary evidence available shows that he had already acquired training and experience as a cook and chef and that the applicant had a job offer. In Amir v. Canada (Minister of Citizenship and Immigration) , [1996] F.C.J. 1706, Justice Dubé states that "the comment that the applicant has not taken steps to "elevate his level of education" is hardly appropriate in the applicant"s case".
English
[8] With respect to the units awarded for English, it is clear that the officer has the discretion required in making such a determination. As stated by the Federal Court of Appeal in To v. Canada (MCI), [1996] F.C.J. 696, the exercise of a discretion should not be interfered with merely because the court might have exercised the discretion in a different manner. Despite the certificate of English earned, the transcript of the visa officer"s notes shows that Mr. Zhang was unable to answer, in detail, questions relating to his qualifications because of his English. I am satisfied that the visa officer"s assessment is reasonable.
Occupational factor
[9] The applicant submits that irrelevant and extraneous factors were taken into consideration, that the officer assessed his application as a Cook, Second, and awarded zero points as there is no occupational demand in this category. The officer came to this conclusion because, as the officer states in his affidavit, the applicant had not provided him with the Certificate of Technical Degree from the Ministry of Labour of the People"s Republic of China as a cook. This certificate was provided by the applicant (see page 64 of the Tribunal"s Record). As well, evidence was submitted that the applicant had an Essential Food Hygiene Certificate, which was a six hour course. The officer based his decision on the fact that the applicant did not have his qualifications assessed in Canada. The decision states: " Although you have a Cooking certificate from a one year course in China, you have not had your qualifications assessed as meeting Canadian standards as a chef or cook". The applicant submits that the duty of fairness requires that the applicant be given the opportunity to respond to impressions of deficiency.
[10] I am satisfied that the above amounts to a breach of procedural fairness. The applicant should have been given the opportunity to respond to any deficiency before being considered under a different category for which there is no occupational demand. Furthermore, the affidavit of the visa officer, filed by the respondent, paragraphs 9 to 12, shows that the officer took into considerations extraneous facts such as the fact that the applicant was not formally employed and whether he paid or did not pay taxes, as well as the method of payment received for services. At the Dragon Vale restaurant, it was said that the applicant received pre-payment for his services by free accommodation and that at the Clover and Chung Ying restaurants, that he was paid in cash. On this basis, the officer concluded that the one letter of reference provided by Dragon Vale was not credible.
[11] While I am of the view that the visa officer has a broad discretion in assessing the credibility of the applicant and the documentary evidence presented by him, I am satisfied that the visa officer took into considerations extraneous factors in the assessment of his credibility and which factors should not have been considered without giving the applicant an opportunity to disabuse the visa officer of any of his concerns.
CONCLUSION
[12] I am satisfied that the immigration officer erred in assessing the applicant"s application under the category of Cook, Second, without giving him an adequate opportunity to respond to prejudicial information or misconceptions. The officer also erred in taking into consideration extraneous elements in the assessment of the occupational factor and personal suitability. For example, the credence attached to documentary evidence should not be based on extraneous evidence.
[13] I therefore refer this matter back for a redetermination before a different visa officer.
[14] Both parties have indicated that they do not intend to submit a question for certification.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, Ontario
October 23, 1998