IMM-3054-96
B E T W E E N:
BINH BOC THANH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D. J.:
INTRODUCTION
This is an application for judicial review of a decision dated July 22, 1996 by Immigration Officer, Nora M. Egan employed in the office of the Canadian Consulate General at Buffalo, New York (the Visa officer). By that decision, the Visa officer refused to grant an immigration visa to this applicant.
THE VISA OFFICER'S DECISION
The Applicant was assessed on the basis of the requirements for two positions: (a) Cook, Foreign Foods; and (b) Cook, Third. At the applicant's interview with the Visa officer, the applicant stated that he had not taken any post-secondary courses and that he did not have any formal training as a cook. He said that he learned to cook by working in his parents' restaurant. During the interview, the Visa officer expressed concern about the applicant's lack of training. The applicant was given the opportunity to dispute this concern but he made no further representations at this time. As a result, the Visa officer advised the applicant of her decision during the interview. She also advised him that he did fulfil the requirements of a cook third. However, since there was no demand for this occupation at that time, the applicant's application was refused.
FACTS
The applicant was born in Vietnam in March of 1972 and is of Chinese descent. He moved to China with his family in 1978 and to Hong Kong in 1979. Subsequently, the family relocated to Ireland. In January 1995, the applicant visited family in Canada and decided to seek permanent residence here. He filed his application for landing on July 6, 1995. In his affidavit the applicant declared that he learned to cook at his father's take-out restaurant. He produced a menu which lists 135 different dishes and stated that he knew how to prepare and cook all of the Chinese dishes.
ISSUES
1. Did the Visa officer apply the correct test in evaluating the Specific Vocation Preparation (S.V.P.), and as a consequence, fail to properly assess the applicant's experience as a Cook, Foreign Foods?
2. Did the Visa officer act arbitrarily in her assessment of the applicant's personal suitability?
3. Did the Visa officer breach the principles of natural justice in neglecting to inquire of the applicant about his experience with Chinese cuisine?
ANALYSIS
1. The Specific Vocation Preparation Test (S.V.P.)
In factor 2 of Schedule 1 of the Immigration Regulations, S.V.P. is defined as follows:
| "To be measured by the amount of formal professional, vocational, apprenticeship, in-plant or on-the-job training specified in the Canadian Classification and Dictionary of Occupations (CCDO), printed under the authority of the Minister, as necessary to acquire the information, techniques and skills required for average performance in the occupation in which the applicant is assessed under item 4." |
The parties do not agree on the proper application of this test to the facts at bar. The applicant submits that the Visa officer did not consider the possibility of on-the-job training at all and improperly concluded that working as a cook in a take-out restaurant could not, under any circumstances, be formal training.
I am unable to agree with this view of the matter. The occupation of "Cook, Foreign Foods" is defined in the CCDO (No. 6121-126) as follows:
| "Prepares and cooks foreign foods according to traditional recipes and methods for consumption in eating establishments...... Orders specialty foods or ingredients. Prepares and serves special dishes at parties tables. Performs feats of dexterity to entertain customers while preparing food, if required." (emphasis added) |
The evidence before the Visa officer was that the applicant's experience was restricted to preparing Chinese food in a take-out restaurant. In my view, his practical experience and expertise is a far cry from that envisaged in CCDO (No. 6121-126) supra. Accordingly, the Visa officer was entitled to conclude that the applicant's on-the-job training simply did not qualify him to perform the rather sophisticated duties contemplated in CCDO (No. 6121-126) supra.
2. Did the Visa Officer Act capriciously?
I do not agree that the Visa officer failed to consider the possibility of on-the-job training being given to the applicant. My view is that the Visa officer after having regard to the totality of the evidence, concluded that the applicant's on-the-job training did not equip him in any way to perform the duties encompassed by Order No. 6121-26. In my view, she was clearly entitled to so conclude on this record and in so finding, she cannot be said to have acted arbitrarily and capriciously.
3. Natural Justice
The relevant jurisprudence establishes that the onus is on the applicant for a visa to provide all relevant information that tends to support his application1. It is clear on this record that this applicant chose not to follow this course2. In paragraph 9 of his affidavit he stated that he "dared" not volunteer information.
Furthermore, my perusal of the record persuades me that the Visa officer did everything in her power to assist the applicant to dispute the assessment and the applicant did not avail himself of that assistance3.
On this basis, I conclude that the Visa officer's treatment of the applicant was consistent with the rules of natural justice.
CERTIFICATION
Neither Counsel requested that a serious question of general importance be certified pursuant to section 83 of the Immigration Act, I agree with that view. Therefore, no question will be certified.
CONCLUSIONS
Accordingly, and for the above reasons the application for Judicial Review is dismissed.
"Darrel V. Heald D.J." Judge
Toronto, Ontario
January 15, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3054-96
STYLE OF CAUSE: BINH BOC THANH
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JANUARY 13, 1997
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: HEALD, D. J. |
DATED: JANUARY 15, 1997
APPEARANCES:
Mr. Marvin M. Moses
For the Applicant
Jeremiah A. Eastman
For the Respondent
SOLICITORS OF RECORD:
Marvin M. Moses
Barrister and Solicitor
212 King Street West
Suite 410
Toronto, Ontario
M5H 1K5
For the Applicant
Jeremiah A. Eastman
Department of Justice
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-3054-96
Between:
BINH BOC THANH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 Hajariwala vs. M.E.I. (1988) 6 Imm. LR. (2d) 222 (F.C.T.D.) at PP 226-227
See also Wang vs. M.E.I. (1988) 6 Imm. L.R. (2d) 243 at 248 (F.C.T.D.)
2 See Application Record P. 11 - Affidavit of Applicant
3 See Affidavit of Nora M. Egan - Sept. 25, 1996 Para. 7.