Date: 20000517
Docket: IMM-3841-98
Between :
MOHAMMED ISRAFIL
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of the decision of Raymond Gabin, a visa officer at the Canadian Consulate General in Buffalo, New York, dated June 8, 1998, determining that the applicant did not meet the requirements for immigration to Canada.
[2] On his application for permanent residence, dated April 29, 1997, the applicant, a citizen of Bangladesh, listed his intended occupation as caterer. He claimed to have been employed as a caterer in New York between July 1988 and April 1997.
[3] By letter dated January 12, 1998, the applicant was informed by C. Wittenberg, a visa officer, that he did not appear to qualify for selection as a caterer. Ms. Wittenberg wrote:
| This is to advise you of my serious concern that you do not appear to qualify for selection as a Caterer. I note that when I attempted to verify your experience with the Four Seasons Hotel, I was unable to do so. I first spoke to a person in the Catering section, who stated that they had worked there for a long time but did not know anyone by your name, or the name of Michel Nicoleson, the person who signed your letter of reference. I then spoke to Human Resources, and was advised that Mr. Michel Nicoleson does not now work there, and they have no record of anyone by that name ever working there. Human Resources also stated that there was no record of your having ever worked there in any capacity. I would note that I also attempted to call Belan's Kitchen, where you state you worked as an Assistant Caterer, but the telephone number on that letter had been disconnected, and there was no new listing according to Directory Assistance. I am therefore not satisfied that you have a minimum of one year full-time experience as a Caterer. I would request that you send any information or documents which you consider might respond to this concern within sixty days. I must also advise you that failure to disabuse me of my concern could lead to the refusal of your application. |
[4] In response to this letter, the applicant sent Ms. Wittenberg a letter from Babu, Manager of the "fabulous cafe" in New York, indicating that the applicant had been employed there as a full-time caterer since June 22, 1997.
[5] Visa officer Gabin determined that the applicant was inadmissible pursuant to paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2. The relevant section of his decision reads as follows:
| My assessment of your occupation was conducted according to both the Canadian Classification and Dictionary of Occupations and the National Occupational Classification. You requested assessment in the following occupation [footnote omitted]: Caterer, CCDO 6121-121 and NOC 6242.0 |
| I have carefully assessed and investigated your training and experience in the occupation listed above based on the information you provided in your application, and have concluded that you are not qualified to work in this occupation in Canada, as you do not have the minimum qualifications specified in the Canadian Classification and Dictionary of Occupations and the National Occupational Classification. At least four years and up to ten years training experience is required under the CCDO, and completion of a three-year apprenticeship program for cooks or completion of a college or other program in cooking or several years of commercial cooking experience is required. The concerns letter, dated January 12, 1998, informed you of our concerns regarding your letters of reference and of our finding regarding your work at the Four Seasons Hotel. You failed to answer any of our concerns. Instead you sent us a letter of reference from Fabulous Cafe which states that you have been working there as a caterer since June 22, 1997. I can only account for one year of experience on your part. I have therefore determined that you do not qualify for selection as a caterer. |
| I therefore also assessed you as a caterer's helper, CCDO 6125-130 and NOC 6642.1, an occupation for which you appear to have the necessary training. However there is no demand for that occupation in Canada. Subsection 11(2) of the Regulations does not permit issuance of an immigrant visa to applicants, in the class in which you have applied, who have received zero units of assessment for the occupational factor. The occupational factor for caterer's helper is currently zero. |
[6] Although a visa officer is not obliged to counsel or advise, he is compelled to "consider fully the submissions and information provided by an applicant." (Saggu v. Canada (M.C.I.) (1994), 87 F.T.R. 137 at page 142 (F.C.T.D.)). In addition, where a visa officer is concerned that an applicant may not qualify, fairness requires the officer to give the applicant the opportunity to disabuse him of his concerns (see Muliadi v. Canada (M.E.I.), [1986] 2 F.C. 205 at page 215 (F.C.A.)). In the words of Justice Rothstein in Chen v. Minister of Citizenship and Immigration et al. (1993), 65 F.T.R. 73, at page 76:
| . . . I am not suggesting a visa officer is required to conduct a seminar with each applicant as to the requirements of the Immigration Act or Regulations or indeed to phrase questions always using specific words or formulas. However, where the requirements to be met under the Act or Regulations are fairly straightforward and the visa officer has a concern that the applicant may not qualify, I do not think it is placing too great a burden on the visa officer to address each requirement specifically and to elicit answers so that a clear assessment can be made as to whether the applicant comes within the relevant definition of the Act or Regulations. . . . |
[7] In the case at bar, the applicant was assessed as a caterer under the CCDO and the NOC. Under the NOC, caterers are assessed under 6242.0 "cooks". The education/training requirements for NOC 6242.0 are "completion of a three-year apprenticeship program for cooks or completion of college or other program in cooking or several years of commercial cooking experience". The applicant submitted a letter from Dhaka Catering School indicating that he had completed a six-month course in catering.
[8] Ms. Wittenberg considered the applicant to have sufficient training to meet the requirements under NOC 6242.0.1 She wrote:
| AS OCCUPATION OF CATERER HAS SVP OF 18 UNITS, REQUIRES MORE THAN 4 YRS UP TO AN INCLUDING 10 YRS OF TRAINING (NOTE THAT CCDO STATES AVERAGE 4 YR UNIVERSITY/COLLEGE CURRIC. EQUIVALENT TO ABOUT 2 YRS SVP), THEREFORE SUBJ CLEARLY HAS INSUFFICIENT TRAINING TO QUALIFY PER CCDO. |
| HOWEVER, WHEN REVIEWED UNDER EQUIVALENT OCCUPATION "COOKS" IN NOC (NOC 6242.0), EDUC./TRAINING FACTOR FALLS TO 7 UNITS AND SUBJECT HAS SUFFICIENT TRAINING TO MEET THIS REQUIREMENT. |
| HOWEVER, ISSUE OF EXPERIENCE REMAINS PROBLEMATIC. . . . |
| (My emphasis.) |
[9] In my opinion, Ms. Wittenberg's use of the word "however" in the last line of this extract indicates that by "experience" she meant the type of experience described in Factor 3 of Schedule I: "experience in the occupation". That is, I do not think that she was referring to the words "several years of commercial cooking experience" in the NOC 6242.0 education/training requirements. Therefore, according to Ms. Wittenberg, the applicant was qualified to be a caterer, but had failed to demonstrate that he had any experience in that occupation, which might have disqualified him under subsection 11(1) of the Immigration Regulations, 1978, SOR/78-172.2
[10] In contrast, nothing in the record indicates that Mr. Gabin turned his mind to whether the applicant's catering course satisfied the education/training requirements under NOC 6242.0. Although the respondent argues that Mr. Gabin concluded that the applicant's catering course did not constitute a "college or other program in cooking", there is no evidence of this type of reasoning on the part of Mr. Gabin. In fact, the only time Mr. Gabin refers to the catering course is in his affidavit, where it is listed as part of the application and supporting documents.
[11] While it is true that the letter from Dhaka Catering School provides no details as to the contents of the catering course taken by the applicant, there is nothing to indicate that Mr. Gabin expressed any concerns regarding the catering course to the applicant. Instead, it seems that he disregarded the catering course altogether, and looked only at whether the applicant had "several years of commercial cooking experience". In this context, he looked at the applicant's one year of experience at the "fabulous cafe" and determined that the applicant was not qualified under NOC 6242.0.
[12] In my opinion, Mr. Gabin failed to consider fully the submissions of the applicant, as required by Saggu, supra. In addition, he neither expressed his concerns to the applicant nor addressed the requirements under NOC 6242.0 with the applicant so as to make a clear assessment of the application, as required by Muliadi, supra and Chen, supra. Therefore, Mr. Gabin breached the duty of fairness owed to the applicant.
[13] Consequently, the application for judicial review is allowed.
JUDGE
OTTAWA, ONTARIO
May 17, 2000
__________________
1 Tribunal Record at page 3, CAIPS dated January 12, 1998.
2 Subsection 11(1) reads as follows: 11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant (a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience; or (b) is qualified for and is prepared to engage in employment in a designated occupation. 11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant : a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire.