Date: 19990514
Docket: IMM-2753-98
BETWEEN:
YEUH BUN HUEY
also known as
RUIBIN XU and RUIBIN CAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant is a citizen of the People"s Republic of China. In April 1997, he applied for permanent residence in Canada under the independent category occupation of Cook, Foreign Foods (CCDO 6121-126). In her letter of decision of April 1, 1998, the visa officer confirmed that she assessed the applicant for his intended occupation but her award of units of assessment was sixty-two, eight units less than the required minimum.
[2] In his application for judicial review, the applicant argues that he should have been awarded six units instead of two for the experience factor, thirteen units instead of ten for education and six units instead of two for English language. These eleven additional units would have brought the applicant to seventy-three units.
[3] The applicant completed his primary and secondary education in his city of birth, Taishan, China. In 1990, he graduated from Xushan Middle School. Immediately upon his graduation, when he was 19 years old, the applicant was hired as an assistant Cantonese chef by a restaurant in Taishan. After two years, he was promoted to the position of Cantonese chef in the same restaurant. In April 1997, he received his Intermediate Grade II Cook certificate from a municipal authority.1
| (i) Education assessment |
[4] In assessing the applicant under the education factor, the visa officer took into consideration the applicant"s part-time English studies over ten months in 1994-95. As a result of these studies, he earned a certificate of English intensification from Zhongshan University. On cross-examination, the visa officer stated that the applicant informed her that he attended the English classes in the morning prior to commencing his restaurant employment at 11:00 a.m. Because she was satisfied that this represented part-time studies, she assessed ten units under the education factor.
[5] Thirteen units are to be assessed for education where the applicant completes "at least one year of full-time classroom study" in obtaining a post-secondary diploma or apprenticeship certificate.2 It is rare that a person can be gainfully employed on a full-time basis as a restaurant chef and simultaneously meet the requirement of "at least one year of full-time classroom study". Even if that might be possible in some exceptional circumstances, I find no reviewable error in the visa officer"s conclusion that the applicant was pursuing his English studies on a part-time basis and did not meet the threshold of one year of full-time classroom study.
| (ii) Language assessment |
[6] Concerning the applicant"s knowledge of English, his application form for permanent residence noted that he spoke, read and wrote English with difficulty. The visa officer deposed that during the interview, the applicant spoke and read English well. She amended his application form to reflect this higher assessment concerning his ability to speak and read English.
[7] She also tested his written English by asking him to write a paragraph explaining how to prepare "premium broth" and to list its ingredients. Upon review of his written assignment, the visa officer noted spelling mistakes, syntax errors and vocabulary difficulties. During her cross-examination, she pointed out that words such as "first", "soup", and "several" were misspelled. She added that the applicant used Chinese and not English words for "simmer", "internal organs" and when he referred to units of measurement. The visa officer formed the opinion that he wrote English "with difficulty", which was consistent with the notation in the application form.
[8] It is common ground that if the visa officer had chosen to assess the applicant"s writing ability as "well", as she did for his reading and speaking of English, he would have been awarded six units for language instead of two. However, as I indicated to the parties during the hearing, I find no reviewable error of fact in the visa officer"s appreciation of the applicant"s written assignment nor in her decision to assess his ability to write English as "with difficulty".
| (iii) Experience assessment |
[9] In view of the conclusions I have reached concerning the education and language factors, the applicant"s challenge concerning the visa officer"s assessment of his work experience is somewhat moot. Even if he were awarded the maximum six units for experience, his total assessment would still be four units shy of the required minimum of seventy. However, the applicant, through his counsel, argued strongly that the visa officer"s overall assessment of this application was biased as the result of her approach on the experience factor. It is appropriate, therefore, to review the applicant"s threefold submissions on this issue.
[10] Units of assessment are awarded for experience "in the occupation in which the application is assessed". In this case, the burden was on the applicant to establish his work experience at the level and within the meaning of Cook, Foreign Foods. The assessment of specific vocational preparation also turns on "the occupation in which the applicant is assessed".3
[11] The applicant"s first argument on this issue is that the visa officer refused to consider his work experience prior to April 1997, when he received his Grade II Cook certificate. In her affidavit, the visa officer stated that only Intermediate Grade II Cooks in China have the requisite experience corresponding to the occupation Cook, Foreign Foods. She explains this as follows:
| 8. ... I know that in China there are only 3 levels of cook recognized: Senior Cooks, Intermediate Cooks and Junior Cooks. Intermediate Cooks (such as the Applicant) are further broken down into Grade II, III and IV Cook; the highest being Grade II. The Applicant"s Cook Certificate demonstrated that he was granted his Intermediate Grade II Cook certificate on April 3, 1997, less than one year prior to our interview. |
...
| 13. ... Given that the Applicant had obtained his Intermediate Grade II Cook Certificate, I did assess him, as he had requested, as a Cook, Foreign Foods, but I could not award him the 6 units for experience recommended by his consultants, because he had only been an Intermediate Grade II Cook for less than one year prior to the interview. I therefore gave him 2 units for his limited experience, explaining that in evaluating him as a Cook, Foreign [F]oods, it was only his recent Grade II work experience which was relevant for the specific occupation in which he was applying. |
On cross-examination, the visa officer added that the middle or Intermediate Grade II Cook certificate required the person to work as a cook for six successive years, three of which at the junior grade level. The certificate is issued after the candidate successfully passes the appropriate examination for that level.4
[12] The Intermediate Grade II certificate was provided to the visa officer by the applicant. She had previously interviewed many applicants with various Chinese cooking backgrounds. The certificate afforded her the information she needed concerning his work experience. In these circumstances, she was not further required to "direct a specific line of questioning as to the applicant"s actual work experience".5
[13] It was on the basis of the certificate that the visa officer assessed the applicant as a Chef, Foreign Foods. It was open to her, also on the basis of the certificate, to determine his work experience for the occupation for which he sought to be assessed, pursuant to the Immigration Regulations. The certificate was not extrinsic evidence in the sense suggested by Gibson J. in Sorkhabi v. Canada (Secretary of State),6 relied upon by the applicant. I find that the visa officer was neither arbitrary, biased or patently unreasonable in limiting the applicant"s work experience to the one-year period subsequent to his obtaining the certificate.
[14] The applicant also attempted to characterize, as a breach of the visa officer"s duty of fairness, her failure to follow up on her initial effort, during her interview with the applicant, to communicate with his restaurant employer. However, I accept the visa officer"s uncontradicted evidence that the sole purpose in trying to reach the applicant"s employer by telephone was to confirm that he had in fact worked at the restaurant. She stated that it was not necessary for her to inquire further about his experience because of her reliance on the certificate.7
[15] Finally, the applicant took the view that the visa officer demonstrated her bias and, at the very least, her lack of thorough analysis of the application, by deciding to refuse his application for permanent residence on the very day of the interview. Again, I accept the visa officer"s evidence that this is not an unusual practice.
[16] In summary, the applicant has failed to establish any reviewable error in the visa officer"s assessment of his application for permanent residence under the experience, education and language factors. The applicant"s comments concerning the assessment of personal suitability are also of no assistance to his challenge of the decision under review. For these reasons, this application for judicial review will be dismissed.
[17] The applicant suggested the following question for certification:
| Does a visa officer breach the duty of fairness to an applicant to have an adequate opportunity to answer the case against her: when considering similar occupational experience only from the time a certificate of formal training or education is obtained though none is otherwise specifically mandated, without providing the applicant with notice of the specific evidence relied upon and providing the applicant a reasonable opportunity to obtain evidence in response thereto? |
In view of my conclusions concerning the education and language factors, the visa officer"s assessment of the applicant"s occupational experience is moot. As the experience issue cannot be determinative of this proceeding, it would be inappropriate to certify this question.
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
May 14, 1999
__________________1 Tribunal record, pp. 39 and 41.
2 Immigration Regulations, 1978, SOR/78-172, Schedule 1.
4 Applicant"s record, pp. 127-8.
5 Fong v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.) at 716.