Federal Court Decisions

     IMM-3067-95

B E T W E E N:

     BEN LI HE

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CAMPBELL J.

     In March 1995, Mr. He applied at the Canadian High Commission in London England for permanent residence in Canada. As a necessary critical element of the application, Mr. He was assessed according to the Canadian Classification and Dictionary of Occupation as a Chef Cook. In respect of this element, on August 23, 1995, Mr. Hi was interviewed at the High Commission offices in London by a visa officer, Ms. Noralyn E. McGuinty. As a result of this interview, Mr. He's application for permanent residence was denied, which is the decision under review pursuant to s.18.1 of the Federal Court Act.

     The decision was reported by Ms. McGuinty to Mr. He in a letter dated September 29, 1995, the italicized portion of which is a finding of law which Mr. He submits is made in error:

...

The occupations of a chef-cook, general and cook, foreign foods as defined in the Canadian Classification and Dictionary of Occupations (CCDO) have specific vocational preparations (SVP) of 15. SVP is a reflection of the time required to learn the techniques and skills needed for satisfactory performance in an occupation. The CCDO outlines that a period of over two years up to and including four years is required to achieve the level of training to qualify as either chef-cook general or as cook, foreign foods in Canada.

Further to your interview of 23 August 1995, you do not have the required qualifications as a chef-cook. You advised you completed a one year full- time course at the Banan Chinese Professional Training School in your home country, graduated as a Class 2 Chef. You explained that Class 2 was not the highest level, and you were unable to continue obtaining more training because at that time your employer in Dubai, the Mandarin Chinese Restaurant, required a Cook immediately.

As your training is insufficient for consideration in this particular occupation, I am unable to award you any units for the factor of experience. [emphasis mine]

     Ms. McGuinty's finding that she was unable to award any units for the factor of experience is further explained in the following paragraphs from the affidavit she filed for this judicial review hearing:

19....According to the CCDO extract, found at Exhibit "E", the Specific Vocational Preparation for Chef Cook, General is 7. As shown in Exhibit "G" taken from the CCDO, an SVP of 7 represents over two years up to and including four years of preparation. In accordance with Schedule I Factor 2 of the Immigration Regulations, this translates into an equivalent of 15 units of assessment out of a possible 18.

20. The applicant could not be awarded any units for the factor of experience because he did not have the minimum amount of training required to be considered as a Chef Cook, General. Units of assessment can only be awarded for experience gained after an applicant has achieved the necessary vocational training, in this instance two to four years. [emphasis mine]

     There is no issue as to the provisions that Ms. McGuinty applied to make the italicized finding. The issue is whether Ms. McGuinty misinterpreted the provisions which she applied and thus made an error in law.

     The provisions to be considered in determining whether Level 7 has been achieved are found the description of "Specific Vocational Preparation", which is Section II of the CCDO. The description is as follows:

Specific vocational preparation is measured by the amount of time needed to acquire the information techniques and skills needed for average work performance in a specific occupation. This training may be acquired in a school, work, military, or institutional environment, or through vocationally-oriented hobbies. It does not include orientation training required of a worker to become accustomed to the specific conditions of a new job for which he is already fully qualified. Specific vocational preparation includes training given in any of the following forms [emphasis mine]:

a. University of College Training:...

b. Vocational Training:...

c. Apprenticeship:...

d. In-Plant Training:...

e. On-The -Job Training:...

f. Experience in Other Jobs:...

     It is clear that, in deciding whether Mr. He had reached Level 7 of vocational preparation of "over 2 years up to and including 4 years", Ms. McGuinty focussed only on Mr. He's "Vocational Training" and, consequently, only gave him credit for his one year, full-time course. I find that by the wording of the provisions just quoted, this is only one of six forms of training that must be taken into consideration. In my opinion, to comply with the provisions, Ms. McGuinty should have considered Mr. He's qualifications according to each of clauses "a" to "f", and then decided whether, on the results taken in combination, Mr. He had reached level 7.

     I find that in reaching the finding first italicized above, Ms. McGuinty misinterpreted the provisions which she applied. Accordingly, I find she made an error in law

     For these reasons, I set aside Ms. McGuinty's decision to deny Mr. He permanent residence, and refer his case back to another visa officer for reconsideration according to the interpretation of the Specific Vocational Preparation guidelines I have provided in this decision.

                        

                         Judge

OTTAWA

January 15, 1997