Date: 19990827
Docket: IMM-1982-98
BETWEEN:
TIANTONG ZHENG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED J.
[1] The applicant seeks an order quashing a decision of a visa officer that found he was not qualified as a Chef-Cook, General (6121-111) under the Canadian Classification and Dictionary of Occupations (CCDO), nor a Cook (6242) under the National Occupation Classification (NOC).
[2] Counsel for the applicant argues that the visa officer: (1) created an environment that was not conducive to easy communication when she interviewed the applicant; (2) treated his cook"s certificate as fraudulent without giving him an opportunity to respond; (3) relied on extrinsic evidence that he was not given an opportunity to comment on; (4) did not inform him about a test that he could have taken to establish his credentials as a cook/chef; (5) relied too heavily on foreign standards for testing cooks rather than on the Canadian requirements found in the CCDO and NOC.
[3] After review of the material on the file and having listened to counsel"s submissions, I conclude that none of these assertions are well founded. The basis of the applicant"s claim that the atmosphere created by the visa officer was not conducive to easy communication is his assertion that the visa officer repeatedly told him "you are wasting my time". In her affidavit, the visa officer flatly denied that she said any such thing. I accept the visa officer"s evidence because there is nothing else on the record that would indicate impatience or antagonism on her part. Some of the applicant"s assertions, however, with respect to other matters to which he attests are shown to be of questionable credibility. I consider it appropriate when assessing the respective credibility of the contradictory statements found in the two affidavits, to do so in the light of the credibility of other material presented by the two affiants, and thus I accept the visa officer"s evidence. (It certainly would be preferable if these interviews were recorded on a tape machine). I cannot conclude that the visa officer created an environment that was not conducive to easy communication.
[4] The visa officer"s CAIPs notes indicate that there was concern about the validity of the applicant"s cook"s certificate even before the interview, because it carried a 1997 issue date when he was asserting that it had been acquired in 1995. The CAIPs notes of the interview indicate that the visa officer asked the applicant about the cooking classes he took in 1995, which allegedly led to the issuance of the certificate. In that context, he asserted that he had previously obtained class 2 and class 3 cook"s certificates, but he had no proof. The CAIPs notes also record that the applicant could provide no details regarding the assessments of his abilities that would have been preliminary to the issuance of his grade 3, grade 2 and, then, grade 1 cook"s certificate.
[5] The visa officer in her affidavit states:
| The Applicant claimed he had attended a three month cooking training program in 1995, prior to being assessed as a grade 1 cook. The Applicant presented a grade 1 cook certificate issued by the Beijing Labour Department on March 11, 1997, to support his qualifications as a Chef Cook, General. This certificate was obtained by the Applicant one month prior to submitting the application for immigration. The Applicant claimed he was originally assessed as grade 1 cook in 1995, and he was also assessed as grade 2 and 3 cook prior to 1995. The Applicant was asked to explain how he was assessed as a grade 1 cook as well as the details of assessments as grade 2 and 3 cook. The Applicant did not have the proof of his original grade 1 certificate nor the grade 2 and 3 cook certificates and he was unable to give details of his assessments as grade 2 and 3 cook or his assessment as grade 1 cook in 1995. I found it not credible that the Applicant had obtained his grade 1 certificate, given that he clearly does not meet the Ministry of Labour requirements for that level outlined above. According to the information provided by the Applicant he was assessed as a grade 1 cook in 1995, when he only received two years cooking experience. The document also purports to rank him in both the old and new standards ie, as a Middle Grade and a Grade one. This should not be done. These reasons cast doubts on the authenticity and or legitimacy of the grade 1 cook certificate obtained in a region where fraudulent documentation is readily available and authentic certificates may be obtained by improper means. |
[6] The applicant, when describing the interview in his affidavit, records that the visa officer "stated that she did not believe that I am qualified as cook/chef". The visa officer"s conclusion in her CAIPs notes that his grade 1 cook"s certificate "is highly suspicious" was not made lightly, or without questioning the applicant about the circumstances of its issue, as well as about other relevant matters that related to its validity. He had an opportunity to respond to the questions that were posed as a result of the visa officer"s concerns about the document"s validity. I cannot conclude that the visa officer treated the applicant"s cook certificate as fraudulent without giving him an opportunity to respond to that suggestion.
[7] The allegation that the visa officer relied on extrinsic evidence arises from the following facts. The applicant filed an affidavit in support of his application for judicial review explaining that he had enrolled in a Middle Level Chinese Cooking Class in July 1995, and in October 1995 took the Middle Level Chinese Cook Certificate Examination. He explained that there are three levels of certificates and a person"s grade within a level depends on the marks received at the examination. The visa officer, in her responding affidavit, contradicted this evidence:
| The grading system referred to by the Applicant in paragraph 9 of his affidavit is not correct. The actual grading system is provided on the 3rd page of Exhibit "E". It indicates that applicants must obtain a score of 60% to pass; those with a score from 80 to 90% are considered good, while those above 90% are excellent. Contrary to the Applicant"s affidavit, there is no reference to first to third grades being awarded within the rank of Middle grade based on an applicant"s scores on the examinations. |
[8] Exhibit "E" to the visa officer"s affidavit is information respecting the different cook classifications that have been used in the People"s Republic of China since 1993. It describes the different levels of cook certificates and the conditions for attaining the different levels. Among the conditions are the lengths of time someone is expected to work as a cook before obtaining a certificate at a given level. The visa officer states that this information is used by visa officers when assessing individuals who claim they are cooks, and it is clear from both her CAIPs notes and her affidavit that she asked the applicant questions during the interview about his cook certificate by reference to the information contained in this document. I am not persuaded, however, that the visa officer"s conduct constituted the use by her of extrinsic evidence.
[9] All the jurisprudence that was cited to me concerning the use of extrinsic evidence involves circumstances in which decision-makers obtained information, not disclosed to the applicants, and based their decisions on that information, without giving the applicants an opportunity to respond to the concerns that had arisen as a result of the acquisition of the information. In Huang v. The Minister of Citizenship and Immigration (IMM-1144-97, January 20, 1998, F.C.T.D.) the same PRC document regarding cooks that is in issue in this case was received by the visa officer after the interview and concerns arising from the receipt of that information were never put to the applicant. In Aujla v. The Minister of Citizenship and Immigration (IMM-1789-97, July 9, 1998, F.C.A.) information was obtained through an independent inquiry, after the interview by the visa officer, that one of the restaurants at which the applicant said he had worked did not exist, and that an employee at a second restaurant did not know the applicant. The applicant was never given an opportunity to comment on this newly acquired information. In Muliadi v. Minister of Employment and Immigration (1986), 18 Admin.L.R. 343 (F.C.A.), the applicant was not told about a decision by the Province of Ontario to reject the applicant. In Park v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm.L.R. (2d) 52 (F.C.T.D.), the visa officer obtained information after the interview that the applicant was not employed at the university at which he had said he was employed. This was obtained by the visa officer making a telephone call to someone at that institution, and the applicant was never given an opportunity to comment on the newly acquired information.
[10] The essential characteristic in this jurisprudence is that concerns were raised in the mind of the decision-maker as a result of new information, concerns that were not put to the applicant, and those concerns were significant in leading the decision-maker to decide against the applicant. That did not occur in this case. While the applicant may not have been given a copy of the PRC information document, the concerns arising in the visa officer"s mind, as a result of her knowledge of the information in the document, were raised with the applicant and he was given an opportunity to comment thereon. Her CAIPs notes reflect this:
| PI has great difficulty to give details regarding his daily cooking and he is unable to give example of daily dishes he needs to prepare. Claims he attended a 3 mth cook training in 95 prior he assessed as grade 1 cook. However, orig grade 1 cook cert seen which was issued on 11/3/97. Claims he was originally assessed as grade 1 cook in 95 and he was also assessed as grade 2 and 3 cook prior to 1995, no proof. PI cannot provide any details how he was assessed as grade 3 and 2 cooks. He is also unable to give details how he was assessed as grade 1 cook. Grade 1 cook cert is highly suspicious as it is normally issued to senior cook with 10 yrs cooking exp and usually for the cook with good work exp in well know hotels or well established restaurants. According to his info he was assessed as grade 1 cook when he only had 2 yrs exp as cook. Although claims he is a cook for preparing Chinese dishes in the restaurant, he is unable to give details of daily cooking. Based on above factors, am not satisfied PI has work exp and training under intended occup. |
[11] With respect to the allegation that the visa officer failed to inform the applicant that there was a cooking test he could take to establish his credentials as a cook, the visa officer explained that the test in question was available through the Beijing visa office, not in Hong Kong. She states that if the applicant wishes to demonstrate his credentials by taking that test, he should reapply, but this time to the Beijing visa office. There was no breach of a duty to inform this applicant about the availability of the test when his application was filed with and processed through the Hong Kong office.
[12] With respect to the argument that the visa officer placed too much emphasis on foreign standards such as whether or not the applicant held a PRC cook"s certificate, rather than on whether or not he met the Canadian requirements as set out in the CCDO and NOC, the evidence does not support that allegation. The visa officer asked the applicant questions about his experience, as well as about his cook"s certificate. It was the answers to the questions concerning his experience that led her to conclude that the applicant should be assessed under the CCDO category, Supervisor, Food Services, rather than as a cook.
[13] For the reasons given, I conclude that this application must be dismissed.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
27 August 1999
[14]
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1982-98
STYLE OF CAUSE: TIANTONG ZHENG
v.
MCI
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: AUGUST 25, 1999
REASONS FOR ORDER OF THE HOUNOURABLE MADAME JUSTICE REED
DATED: AUGUST 27, 1999
APPEARANCES:
| MR. DOUGLAS PAGE FOR THE APPLICANT |
| MR. VICTOR CAUX FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| DOUGLAS PAGE |
BARRISTER & SOLICITOR
| NEW WESTMINSTER, B.C. FOR THE APPLICANT |
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL
| OF CANADA FOR THE RESPONDENT |