Date: 19980805
Docket: IMM-3838-97
BETWEEN:
DINESHKUMAR PATEL
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to the review of a visa officer's decision, in which the applicant was not awarded any points for experience in the occupational category "sales representative, wine, beer and spirits (whole, trade)".
[2] The description of that occupation in the CCDO reads:
| 5133-132 SALES REPRESENTATIVE, WINE, BEER AND SPIRITS (whole, trade) |
| Sells and promotes sale of wine, beer or spirits to beer and liquor outlets, hotels, restaurants and other sales outlets: |
| Performs duties described in the definition for the Unit Group 5133, COMMERCIAL TRAVELLERS. Specializes in selling alcoholic beverages. Tastes, smells and observes beverage to become acquainted with product characteristics. Advises customers on product usage, displays, new product lines and describes characteristics and tastes. Addresses clubs and groups, attends special events, arranges special promotions and provides samples to promote product line. May be designated by type of beverage sold. |
[3] The applicant describes his duties as:
| Placing orders, receiving, merchandising, assembly of interbranch & customer orders. I am also in charge of stock transfers to our other 9 cash & carry warehouses. Weekly liquor inventory control (wine, beer and spirits) computerised stock ordering and controlling of wine, beer and spirits. |
| I deal with existing and new customers over the phone and in person. The majority of our sales of wine, beer and spirits are to hotels, restaurants, motels and liquor retail outlets. |
| I am in charge of displaying our wines, beers and spirits and also pricing them. |
| I deal with the general administration work related to purchasing and credits. This means when stock is low I have to review prices, suppliers promotional deals and place orders accordingly. |
[4] The visa officer, in his affidavit sets out his reasons for the decision he made:
| I compared the duties performed by Mr. Patel as "Liquor Supervisor" with the CCDO occupational description (attached to this affidavit as Exhibit "C") for "Sales Representative - Wine, Beer and Spirits" (CCDO 5133-132), which among other duties includes the following: |
| - Sells and promotes sale of wine, beer or spirits to beer and liquor outlets, hotels, restaurants and other sales outlets; |
| - Advises customers on product usage, displays, new product lines; |
| - Arranges special promotions; |
| - Performs the duties described in the definition for the Unit Group 5133 "Commercial Travellers" which among other items includes : Occupations concerned with selling commodities on a wholesale basis in an allocated geographical area to wholesale, retail, industrial, professional or other establishments quoting prices and credit and discount terms; arranging delivery schedules; processing orders to office or warehouse. |
| Mr. Patel's duties as "Liquor Supervisor" as described by himself in the form entitled "Full Description of My Occupational Duties", attached to this my affidavit as Exhibit "D", included: |
| - Placing orders; |
| - Receiving; |
| - Merchandising; |
| - Assembly of interbranch and customer orders; |
| - Stock transfers to the company's other 9 cash and carry warehouses; |
| - Weekly inventory control; |
| - Computerized stock ordering and controlling; |
| - Dealing with customers over the phone and in person; |
| - Displaying wines, beers and spirits and pricing them; |
| - Dealing with general administration work related to purchasing and credit |
| Based on my comparison, I concluded that the duties performed by Mr. Patel did not have the depth, scope or level of responsibility of those described in CCDO 5133-132 "Sales Representative - Wine, Beer and Spirits". For example, Mr. Patel's duties did not include as a major responsibility sales promotion, addressing clubs and groups nor did the duties relate to those of "Commercial Travellers". Mr. Patel was therefore not considered to have experience as "Sales Representative - Wine, Beer and Spirits". |
[5] Counsel for the applicant argues that there was some ambiguity in the material filed by the applicant concerning the sales promotional activities of which he had experience and that the visa officer, at the very least, was obligated to seek further information from the applicant before refusing his application.
[6] I have not been persuaded that such ambiguity exists. The applicant described his job as liquor supervisor for James Gilmour & Co. Ltd., a food, tobacco and liquor wholesaler. The applicant's employer described the duties of the job as including "purchasing, receiving, merchandising, assembly of interbranch and customer orders, stocktaking and dealing with customer queries and problems". The employer described his business as the operation of "10 [ten] Wholesale Food Warehouses and Confectionary/Tobacco Van Sales Service" that sell a wide variety of products: "Dry Goods (Catering and Retail Size), Liquor, Tobacco, Confectionary, Frozen Goods and Deli Items". The employer's description continues:
| We provide a self service option for customers who wish to come into any of our Warehouses to shop for themselves and a service/rep option where the customer can fax/phone their orders to the Warehouse and have Rep call on them and their Goods are picked, processed and delivered to them the next day. |
[7] It was in this context, then, that the applicant's description of his duties was assessed. I have not been persuaded that an ambiguity exists in the material supplied by the applicant and his employer. Thus I cannot conclude that there was a duty on the visa officer to investigate further before making a decision.
[8] The appropriate test to be applied by a reviewing court is well known. One must find a decision based on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material on the record. I cannot conclude that the visa officer's decision falls within that category of decision.
[9] For the reasons given, this application will be dismissed.
"B. Reed"
Judge
Toronto, Ontario
August 5, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3838-97
| STYLE OF CAUSE: DINESHKUMAR PATEL |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, AUGUST 4, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: WEDNESDAY, AUGUST 5, 1998
APPEARANCES:
Mr. Arthur W. Weinreb
For the Applicant
Ms. Susan Nucci
For the Respondent
SOLICITORS OF RECORD: J. Norris Ormston
| Barrister & Solicitor |
| 44 Woodrow Avenue |
| Toronto, Ontario |
| M4C 5S2 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980805
Docket: IMM-3838-97
Between:
| DINESHKUMAR PATEL |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER