Date: 19980629
Docket: IMM-3744-97
OTTAWA, Ontario, this 29th day of June, 1998.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
NAFEEZA ALI HANIF
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
UPON application by the applicant for judicial review of, and for an order setting aside, the decision of a visa officer at the Canadian High Commission in Jamaica, made on July 21, 1997 rejecting the applicant's application to be admitted to Canada as a permanent resident;
UPON hearing counsel for the parties in Toronto on May 6, 1998, when decision was reserved pending opportunity for counsel to make further written submissions, and upon consideration of those submissions and matters discussed at the hearing;
O R D E R
IT IS ORDERED that the application for judicial review is dismissed.
W. Andrew MacKay
Judge
Date: 19980629
Docket: IMM-3744-97
BETWEEN:
NAFEEZA ALI HANIF
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks an order quashing the decision of a visa officer of the Canadian High Commission in Jamaica made on July 21, 1997, rejecting the applicant's application to be admitted as a permanent resident in Canada. The applicant also seeks mandamus directing that her application be reconsidered by a different visa officer, or directing that the applicant meets the requirements for an immigrant visa.
[2] In the originating notice of motion, the grounds for relief are said to be that the applicant was denied procedural fairness, and that the decision was so unreasonable as to constitute an error of jurisdiction. In the course of hearing the application, on May 5, 1998, counsel for the applicant raised an additional circumstance, which is said to constitute procedural unfairness. While the visa officer did consider some occupations as alternatives to that originally proposed by the applicant, it is urged that she failed to consider other alternative possible occupations, for which the applicant's experience indicates qualification. By so doing, the officer is said to have breached her duty to fairly consider the application.
Background
[3] The applicant is a citizen of Guyana. In October, 1995, her application for permanent residence in Canada, together with her children, made under the independent category, was received by the Canadian Consulate in Buffalo, New York. By letter dated October 23, 1995 from the applicant's solicitor, the applicant indicated that her intended occupation in Canada was that of Cook, CCDO 6121-111.
[4] An interview with the applicant was ultimately arranged at her request for the Canadian High Commission in Kingston, Jamaica. On paper screening of the applicant, she was assigned a total of 73 points. However, an interview was viewed as necessary to assess the applicant's settlement potential and to confirm her qualifications, education and experience. In particular, there was no evidence in the written documentation provided by the applicant of her having completed secondary school or of any extensive professional training and it was considered there was a need to determine whether the applicant had any other academic or professional training.
[5] At the interview, the applicant indicated that she had attended three years of secondary school, rather than the five reported on her application for permanent residence, and that she had not completed secondary or high school. The applicant indicated that she had attended evening cooking class for a total of 20 hours between July to December 1991 at an evening school which also provided interest classes such as crocheting and tie-dying. No diploma was awarded by the school for such evening classes.
[6] The applicant explained that her duties at her present employment at S. Boodoo Fast Food/Cafeteria consisted of cooking in a cafeteria style environment in a high school at which less than half of the 100 students ate in the cafeteria. The cafeteria served lunches and afternoon snacks only. The menu included for the cafeteria included several soups, some curry dishes, beef fried rice, chowmein, spaghetti and meatballs, potato salads, burgers and fries. The applicant also furnished proof that she worked as a caterer from time to time, but provided no menus or other documents, other than a business card, concerning her catering work.
[7] The applicant reported having a job offer from a Comfort Inn in Port Hope, Ontario, either as a cook in a Swiss Chalet or Harvey's Restaurant, or as a room attendant in the hotel. The job offer was not validated by the Canada Employment Centre and thus, no units of assessment could be awarded in relation to the employment offer.
[8] By letter dated July 21, 1997, the applicant's application for permanent residence was rejected. The visa officer concluded, from the absence of a diploma for the cooking class she had completed and the types of other courses offered by the school, that the course in advanced cooking taken by the applicant was an interest class, and provided no qualification as a chef or cook as those occupations are described in the CCDO. The visa officer concluded that the applicant's qualifications and experience indicate that she is a short order cook or fast food preparer, rather than a cook within the meaning of the occupational qualification she applied under, an occupation for which she had no experience or qualification. There was no occupational demand for short order cook or fast food preparer in Canada.
[9] In providing points for education, the visa officer failed to properly consider the fact that the applicant had attended only 3 years of secondary or high school and had not completed those studies and the officer incorrectly assigned 5 points. According to the regulations, the applicant should have received 0 points, as she had never completed secondary school. In arriving at her figure for personal suitability, the officer considered that the applicant had failed to demonstrate much motivation and initiative, as she had not upgraded her qualifications, beyond taking a short, 20 hour course. Ultimately, the applicant received 66 points, including 0 points for experience, 0 points for arranged employment in her designated occupation, 5 points for education and 4 points for suitability.
Arguments of the parties
[10] The applicant submits that, in rendering her decision, the visa officer failed to observe principles of natural justice and acted beyond or refused to exercise her jurisdiction, erred in law in making her decision and based her decision on a erroneous finding of fact. It is urged that the failure of an administrative decision maker to take into account a highly relevant consideration is just as erroneous as the improper consideration of an extraneous consideration. As there is nothing in the guidelines of the Canadian Classification and Dictionary of Occupations (CCDO) with respect to general education training requirements for cooks, the visa officer, it is said, erred in demanding special education from the applicant in order to qualify as a cook. Instead, the applicant's qualifications are based on her extensive practical experience and some supplemental education. The applicant urges that the visa officer should have looked at the essence of her occupation and then compared this to the description of the occupation classifications in the CCDO. The applicant submits that the visa officer erred in classifying the foods prepared by the applicant as short order or fast food. On personal suitability, the applicant contends that as she is fluent in English, has extensive work experience as a cook and caterer, extensive ties in Canada and a job offer as a cook waiting for her in Canada, she should have been awarded more than 4 points for suitability.
[11] The respondent submits that the decision of the visa officer is administrative and discretionary in nature and, if exercised fairly, uninfluenced by irrelevant considerations, and not arbitrarily or illegally, is not subject to be set aside on judicial review. The visa officer assessed the applicant's experience from the information provided by the applicant and the CCDO guidelines, as required under the immigration regulations. Specifically, the officer directed her attention to the job descriptions contained in CCDO guidelines, including 6121-111, Chef-Cook, General; and 6121-130, Short-Order Cook. These occupations the officer considered relevant in light of the applicant's work experience which was carefully reviewed with her at the interview. However, the officer concluded that the applicant had no work experience as Chef-Cook. It is urged, as a consequence, that the applicant's arguments concerning the failure of the officer to contemplate the essence of what the applicant was doing are not relevant. With regard to personal suitability, it is urged that the assessment of personal suitability was within the discretion of the visa officer and that the applicant has not demonstrated any basis for judicial intervention.
[12] The respondent also notes that while the applicant received 66 units of assessment, the applicant was in fact only entitled to 61, as the 5 units provided for education was an error.
Conclusion
[13] In my view, this application should be dismissed. The visa officer assessed the applicability of the applicant's work experience, finding it to be irrelevant to the position of chef-cook, CCDO 6121-111, the occupation for which assessment of the applicant was requested. The applicant's experience was deemed relevant to the occupational categories short order cook or fast food preparer or caterer, but there was no occupational demand for these occupations. Without that demand an application for permanent residence in the independent category may not be approved. In light of the fact that the applicant's present employer identifies itself as a fast food outlet, and the cursory nature of the applicant's training in cooking, I do not agree with the applicant that the visa officer erred in her assessment of the nature of the applicant's work experience.
[14] With respect, the visa officer did not fail to meet any legal duty in terms of assessing the applicant's qualifications for her intended occupation. There is no basis for the Court to intervene. Similarly, the applicant provides no justification for the Court to intervene on the basis that, in reaching a figure for personal suitability, the visa officer erred. Mere disagreement with the visa officer's exercise of discretion is not grounds for allowing intervening.
[15] Finally, I come to the circumstance raised by counsel for the applicant at the hearing of this matter. It is urged that the visa officer here failed to consider the application fairly because she did not assess the application in relation to all possible occupational classifications for which, by her experience, the applicant might be considered to be qualified.
[16] For the applicant it is urged, in written submissions following the hearing, that the duty of fairness requires the visa officer to assess the applicant in this case in regard to several cooking classifications: Cook, Small Establishment, CCDO 1121-114; Cook-Foreign foods, CCDO 6121-126; Cook, Domestic, CCDO 6121-118; or Cook, first, CCDO 6121-127. In this the applicant relies upon Chan v. Minister of Citizenship and Immigration[1], in which Heald D.J., following Man v. M.E.I.[2] applied the principle that, in fairness, the visa officer must assess an applicant for any alternate occupation for which the applicant is qualified. In that case, failure to assess the applicant as a secretary constituted procedural unfairness where that position was on the occupation demand list, and the visa officer there acknowledged that the applicant had at least 6 years of secretarial experience.
[17] I am not persuaded that in this case the visa officer's decision should be set aside. In Parmar v. M.C.I.[3], I held that "[w]here there is no evidence presented of alternate of inherent occupations, the officer does not err in failing to consider other occupations than those which the applicant has requested." In Asghar v. Canada (Minister of Citizenship and Immigration),[4] Muldoon J. held "there must be evidence on the record that indicates that the applicant is qualified to pursue those occupations, otherwise the visa officer cannot be faulted for his failure to consider those occupations". There is no doubt that here the officer did carefully assess the experience of the applicant as a result of the interview and evidence presented. It may be, as the applicant urges, that for occupations in the field of cooking, general formal education may not always be essential, but a visa officer may not ignore the formal educational requirements for those occupations as described in the CCDO, the Dictionary of Occupations used in this case to assess experience and qualifications of prospective immigrants. Moreover, the assessment of the qualifications and experience of the applicant is a matter of fact entirely within the discretion of the visa officer. Unless that is exercised in a manner that is found to be patently unreasonable, or unfairly or for some improper purpose, there is no basis for this Court to interfere.
[18] In this case, the evidence before the visa officer of the experience of the applicant was scanty, aside from that derived from the interview. The applicant provided the menu from the school cafeteria where she was employed, a letter from the school where she had completed evening cooking classes, and letters from persons for whom she was said to have done catering. In my view, the officer did not err, on the evidence before her, in not considering her in relation to the special cooking classifications now suggested on her behalf as warranting consideration. The officer's decision in failing to consider each of those classifications cannot be considered improper, given the absence of evidence before the officer that indicates that the applicant is qualified, particularly by education or training, to pursue those occupations. Moreover, there must be some evidence, not mere speculation by the officer concerned, that the experience of the applicant supports assessment under an alternative classification. For example, it is insufficient to conclude that because the menu at her place of employment included dishes from different cultures that she would be qualified as Cook-Foreign foods, or that the size of her place of employment qualified her as Cook, Small Establishment, within the CCDO classification.
[19] For these reasons, I dismiss the application for judicial review, and an order goes so providing.
W. Andrew MacKay
Judge
OTTAWA, Ontario
June 29, 1998.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3744-97
STYLE OF CAUSE: NAFEEZA ALI HANIF v. MCI
PLACE OF HEARING: Toronto. Ontario DATE OF HEARING: May 6, 1998 REASONS FOR ORDER OF MacKay, J. DATED: June 29, 1998
APPEARANCES:
Ms. Robin L. Seligman FOR THE APPLICANT
Ms. A. Leena Jaakkimainen FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Ms. Robin L Seligman FOR THE APPLICANT Toronto, Ontario
Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada
[1]. (October 30, 1997), Court File No. IMM-506-97 (F.C.T.D.).
[2]. (1993), 59 F.T.R. 282.
[3]. (1997), 139 F.T.R. 203.
[4]. (August 21, 1997) Court File No. IMM-2114-96 at 3, [1997] F.C.J. No. 1091 (F.C.T.D.).