Date: 19990907
Docket: IMM-851-98
OTTAWA, ONTARIO, THIS 7th DAY OF SEPTEMBER 1999
PRESENT: THE HONOURABLE MR. JUSTICE LUTFY
BETWEEN:
ZHI MING CAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON the applicant"s application for judicial review of the decision of the visa officer dated December 17, 1997, refusing his application for permanent residence;
UPON review of the parties" written submissions and the hearing of July 13, 1999
in Toronto, Ontario;
IT IS HEREBY ORDERED THAT:
1. This application for judicial review is granted.
2. The decision of the visa officer dated December 17, 1997 is set aside and the applicant"s application for permanent residence is remitted for redetermination by a different visa officer.
"Allan Lutfy"
J.F.C.C.
Date: 19990907
Docket: IMM-851-98
BETWEEN:
ZHI MING CAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
| _. The applicant, a citizen of China, sought permanent residence in Canada, as an assisted relative, under the occupation of Cook, Foreign Foods. He has two brothers who have worked in Canada as cooks. |
| _. Since 1988, the applicant has worked in a factory canteen in Guangzhou, China. His functions are more fully described in the visa officer"s CAIPS notes: |
| He states that since 88 to present he works in the canteen. He states that he is one of 4 cookers in canteen and altogether 17 staff. They service both the canteen. He indicates that he reports to canteen manager/cook. He describes duties thusly, he first says that he works as a cook, however, he has great difficulty indicating how dishes are prepared. He seems alright with discussing preparation of veggies, etc. He states that canteen has a set menu prepared by the manager and that clients do not have selection choices. He claims that he buys the materials. However, this is suspect as he cannot respond with any accuracy as to the costs and quantities involved in serving clientele. He does not clearly explain what kind of cooking he does. Can only indicate that 300 staff of factory are served in a day. Was very vague in terms of the amount of people (even when asked to be specific) including the adjacent private restaurant (which he does not cook for specifically), except to say that it could be several hundreds. Based on his description none of the workers in the kitchen has any authority over the others. [unedited] |
| _. The application for permanent residence was refused. The visa officer determined that the applicant did not have the work experience to meet the requirements of the Canadian Classification and Dictionary of Occupations under Cook, Foreign Foods. In her view, the applicant had the qualifications and experience of a Cook, Helper. However, the applicant obtained less than seventy units when assessed under each occupation. |
| _. Prior to the interview process, another immigration official noted that the applicant "might qualify better as a Cook, Institution". The visa officer does not appear to have assessed the applicant under this occupation, although she concludes her own CAIPS notes by stating: "No other occupation for which there is a demand and subject has work experience that would enable him to meet [selection] criteria." |
| _. It is not apparent why the visa officer chose to assess the applicant in the alternate occupation of Cook, Helper and not Cook, Institution. Even prior to his interview, information in Mr. Cao"s application indicated to at least one official that he might qualify as Cook, Institution. The visa officer"s description of his functions as a cook in a relatively large canteen may not be unrelated to those of a Cook, Institution, for which the applicant may be qualified. This is not a determination to be made by this Court but is one which ought to have been addressed, in the particular circumstances of this case, by the visa officer. For this reason, the refusal to grant permanent residence will be set aside and the matter remitted for redetermination. |
| _. The parties also differed on the interpretation of the criteria issued by the Chinese Ministry of Labour and Ministry of Domestic Trade concerning the classification of Grade Two and Grade Three Chinese Chef. As I understand the applicant"s position, the candidate is only required to satisfy one of the three criteria under either Grade. The respondent"s officials take the view that all three criteria under each Grade must be met. This is a simple issue which has surfaced in other cases. During the hearing, I indicated to both counsel that, in my view, the evidence was incomplete. In a future case, I would expect that one or both of the parties should obtain first-hand information from the Chinese government to facilitate the resolution of this fairly straightforward issue. |
| _. The applicant did not vigorously pursue his third argument concerning the interpreter"s failure to sign the declaration that the application forms for permanent residence had been faithfully and accurately interpreted. I had indicated that this omission, absent other evidence, would not warrant this Court"s intervention. |
| _. Finally, the applicant challenged the visa officer"s assessment of three units for personal suitability. The record does not establish that the visa officer "double counted" the applicant"s difficulty in English in her assessment of his personal suitability. In any event, I subscribe to the view that, under personal suitability, a visa officer may have regard to another Schedule I factor, provided that this aspect can be related to the applicant"s adaptability, motivation, initiative, resourcefulness and other similar qualities: Barua v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1571 (QL) (T.D.) per Evans J. at paragraph 19. |
| _. Neither party suggested the certification of a serious question. |
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
| September 7, 1999 _. |
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