Date: 19990907
Docket: IMM-4558-98
BETWEEN:
GANA MILOVANOVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN J.
[1] The applicant seeks judicial review of the decision, dated 30 July 1998, made by immigration officer Sara Trillo at the Canadian Consulate General in New York City, in which the applicant"s application for permanent residence was denied. The applicant seeks an order setting aside the decision, and asks that it be redetermined by a different immigration officer.
Background
[2] The applicant, Ganna Milovanova, is from the Ukraine, although she has been in the United States working, apparently without status, since 1996. She applied for permanent residence in Canada, while working in the United States, and sought to be assessed under the independent category as a chef-cook. She was interviewed by Ms. Trillo on 18 June 1998 and 24 July 1998 at the Canadian Consulate.
[3] In her letter of refusal, the immigration officer indicated that the applicant was assessed under her intended occupation of Chef-Cook, General, as described in the Canadian Classification and Dictionary of Occupations ("CCDO"), CCDO 6121-111. The immigration officer determined that the applicant lacked both the necessary qualifications and the required minimum of one year"s experience, and awarded the applicant 61 units of assessment. As the applicant fell short of the required minimum 70 units and also lacked any experience in the intended occupation, the immigration officer could not issue her a visa.
[4] The immigration officer also assessed the applicant under the provisions of the former National Occupational Classification ("NOC"), NOC 6241.1, 6241.2, and 6241.3, but determined that the applicant failed to meet the employment requirements for these occupations. Under NOC 6242, the applicant failed to amass the requisite points.
Applicant"s Position
[5] The applicant contends that the immigration officer erred in four instances: in failing to award her any points for her experience; in awarding her only 10 points for her education; in awarding her only 3 points for personal suitability; and in failing to award her any points for language ability.
[6] With regard to her work experience, the applicant argues that she provided the immigration officer with her official employment book, two letters of reference, as well as her oral description of her employment experience at Bereg Cooperative from 1992 until 1996. The applicant contends that this evidence establishes that she received training as a chef-cook by Bereg Cooperative"s chef-cook, whom she also replaced after he retired. The applicant also submits that this evidence indicates that she worked as a 3rd grade cook for Bereg Cooperative between June 1992 and August 1994, was promoted to 4th grade cook in September 1994, and held that position until November 1996.
[7] According to the applicant, her position at Bereg involved planning and preparing a lunch menu for 12 executives. Her duties included estimating the food required in advance, preparing soups, meat and fish dishes, potatoes, rice, pasta, salads, fruits, and vegetables. She also monitored the kitchen equipment and supervised a two-person staff.
[8] The applicant contends that this work experience is consistent with the duties of chef-cook, general, or cook, small establishment.
[9] With regard to the education factor, the applicant disputes the immigration officer"s assessment of 10 points under this category. The applicant possesses a diploma from the Odessa Pedagogical College, based on studies from 1987 to 1991. Based on evidence in the form of letters from the University of Toronto"s Comparative Education Service, the applicant contends that her diploma is equivalent to an Ontario Secondary School Diploma, plus two years of post secondary study comparable to a two year diploma in pre-school education. She also contends, based on the same letters, that her studies at the Odessa Training Centre in 1992 are comparable to a one year certificate in cooking offered by a college of applied arts and technology in Ontario.
[10] The applicant submits that the immigration officer erred by failing to consider whether her diploma from the Odessa Training Centre entitled her to 13 units of assessment. She argues that she should be entitled to the additional points because the one year cooking program she completed was intended for those students who had completed secondary school. Thus, her 1991diploma should have been assessed differently.
[11] With regard to personal suitability, the applicant disputes the three units she was awarded out of a possible maximum of 10. The applicant contends that the immigration officer relied on improper grounds as articulated in the immigration officer"s notes. The immigration officer noted that the applicant had been awarded five bonus points for education; she had not managed to learn English despite living in the U.S. for over a year; her stories regarding her education and employment were not credible; she was working illegally in the U.S.; and she came to the U.S. under false pretences.
[12] The applicant contends that these factors do not relate to her ability to become successfully established in Canada. Moreover, the immigration officer erred by reconsidering language and education, effectively engaging in double counting. The applicant submits that the immigration officer ignored the fact that she had been employed for the past 18 months in the U.S., that she had enrolled in part-time English classes while working full-time, and that she had received positive responses to her enquiries to a Canadian employment placement agency.
[13] Finally, with regard to the immigration officer"s award of zero points for English language ability, the applicant submits that she was improperly and unfairly assessed as speaking and reading "with difficulty", as opposed to "well." She points out that the first interview was conducted without a translator and that she was able to accurately communicate facts regarding her application. She also points out that the first 30 minutes of the second interview were conducted without a translator"s assistance.
[14] The applicant disputes the fairness of the immigration officer having her read and explain a portion of the application for permanent residence form, IMM 0008.
[15] The applicant contends that the immigration officer failed to take into account difficulties in oral communication occasioned by the plexiglass barrier which was between the applicant and the immigration officer. The applicant also submits that the immigration officer ignored evidence indicating that she was placed in the fourth, out of six, levels of English at the John Adams Community College Centre in San Francisco, where she was enrolled in English language studies in March 1997.
Respondent"s Position
[16] The respondent submits that it was open to the immigration officer to conclude that the applicant"s duties at Bereg Cooperative fell short of the training and experience requirements for chef-cook, general. In the alternative, the respondent submits that even if the immigration officer had awarded the applicant the disputed points, she would still fall short of the required 70 units of assessment.
[17] The respondent submits that with regard to the units of assessment awarded for education, the documents provided by the applicant established that her middle school certificate"earned in 1987"did not permit her to enter university.
[18] With regard to the personal suitability assessment, the respondent maintains that the decision was open to the immigration officer and further, that she did not engage in double counting by reconsidering the applicant"s inability to speak English after living in the U.S. for some two years.
[19] Finally, the respondent submits that the immigration officer resorted to the use of a translator after attempting to interview the applicant on her own on 18 June 1998. The respondent maintains that the immigration officer assessed the applicant"s language ability in a fair manner and that her decision to award zero points was open to her.
Issue
[20] The issue to be decided is whether the immigration officer erred in assessing the applicant under the particular categories of experience, education, personal suitability, and language ability.
Discussion
[21] The relevant jurisprudence places the onus on the applicant, in cases such as this one, to fully satisfy the immigration officer of all of the positive elements in her application for permanent residence status. Mr. Justice Muldoon"s comments in Prasad v. Canada (MCI) (1995), 34 Imm. L.R. (2d) 91 (F.C.T.D.) are instructive:
| The onus is on the applicant to satisfy the visa officer of all of the positive ingredients in the applicant"s application. It is not for the visa officer to wait and offer the applicant a second, or several opportunities to satisfy the visa officer of the necessary points which the applicant may have overlooked. The visa officer exhibited no error of law, egregious error of fact, nor yet any unfairness on this record. One must remind oneself that even if the Court might have come to a different conclusion, the purpose of these proceedings is to determine whether the visa officer went off the rails according to the classical criteria for successful judicial review. |
[22] A visa officer"s decision is granted considerable curial deference on judicial review: Hajaraiwala v. Canada (MEI), [1989] 2 F.C. 79 (T.D.).
[23] The reviewing court may not interfere with the visa officer"s exercise of statutory discretion when it was exercised in good faith and, where required, in accordance with the appropriate principles of natural justice, and where reliance was not placed on irrelevant or extraneous considerations: Maple Lodge Farms Ltd . v. Government of Canada et al., [1982] 2 S.C.R. 2.
Experience
[24] In the case at bar, the applicant was assessed under CCDO 6121-111, as chef-cook, general. The description for this occupation reads as follows:
| Prepares, seasons and cooks food for consumption in hotels, restaurants and similar establishments: Plans menus. Reads menus to estimate food requirements. Obtains food from storage. Adjusts thermostat controls to regulate temperature of oven, broilers, fryers, burners, pressure cookers, grills, roasters, steam kettles and other cooking equipment. Bakes, roasts, broils, grills, fries, poaches, stews, braises, boils, sautés, and steams meats, fish, vegetables and other foods. Adds seasoning to foods during mixing or cooking according to personal judgment, experience and recipes. Observes, tastes, and smells food being cooked to determine stage of cooking. Portions food, places in appropriate dishes, containers or pans, adds gravies and sauces, and garnishes to fill orders. Cleans or instructs cleaning staff to clean dishes, utensils, kitchen equipment and work area. Stores food in temperature controlled facilities. |
[25] Training and entry requirements for chefs and cooks under this category normally entail eight to ten years of general education; three to four years in an apprenticeship program; vocational training in a community college or vocational centre and on-the-job training for approximately three years; or progressive on-the-job training under the guidance of experienced cooks for a period of one to two years.
[26] It is clear that the applicant lacked the second and third requirements. However, she contends that her experience falls within the progressive on-the-job training provision. The immigration officer concluded that the applicant did not fall within this category and this conclusion was based, in part, on the applicant"s failure to produce any credible evidence of on-the-job training under the supervision of an experienced cook. The applicant did provide two letters of reference from Bereg Cooperative; however, they are couched in fairly general terms only indicating that she was an expert in preparing salads made from fruits and vegetables (applicant"s application record, pp. 21-22).
[27] As the jurisprudence indicates, the applicant bears the onus of satisfying the immigration officer that she meets the requirements of her intended occupation. This includes providing evidence which establishes that she has the required work experience. The applicant, however, has not done so. What she did provide by way of evidence does not support her contention that she had progressive on-the-job training. The immigration officer"s conclusion on this point does not display any error such that judicial intervention is warranted.
Education
[28] With regard to education, Schedule I of the Immigration Regulations provides:
Subject to subsections (2) to (4), units of assessment shall be awarded as follows:
| (b) where a diploma from a secondary school has been completed, the greater number of the following applicable units: |
| (i) in the case of a diploma that does not lead to entrance to university in the country of study and does not include trade or occupational certification in the country of study, five units, |
| (ii) in the case of a diploma that may lead to entrance to university in the country of study, ten units, and |
| (iii) in the case of a diploma that includes trade or occupational certification in the country of study, ten units; |
| (c) where a diploma or apprenticeship certificate that requires at least one year of full-time classroom study has been completed at a college, trade school or other post-secondary institution, the greater number of the following applicable units: |
| (i) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(i) or (iii) as a condition of admission, ten units, and |
| (ii) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(ii) as a condition of admission, thirteen units. |
[29] The immigration officer applied paragraph 1(c)(i) to the applicant, awarding her ten units of assessment.
[30] The applicant submitted three letters from the University of Toronto Comparative Education Service, to which she submitted her diplomas for assessment in relation to Canadian standards (applicant"s application record, pp. 32-34). The applicant"s 1987 diploma was assessed as comparable to Ontario"s grade ten. The 1991 diploma in pre-school education was considered to be equivalent to an Ontario Secondary School Diploma, along with two years of post-secondary study. The two additional years of study were considered comparable to a two-year diploma offered by a college of applied arts and technology in Ontario. The applicant"s third diploma, earned in 1992 from the Odessa Training Centre, was assessed as comparable to a one year certificate in cooking, offered by a college of applied arts and technology in Ontario.
[31] The immigration officer makes no mention of these letters in her affidavit. In her computer notes, their receipt by fax is noted on 21 July 1998. It is not clear, however, whether she took this evidence into consideration when assessing the applicant"s education factor.
Personal Suitability
[32] Personal suitability is defined in Schedule I of the Regulations as follows:
| Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person"s adaptability, motivation, initiative, resourcefulness and other similar qualities. |
[33] In Amir v. Canada (MCI) (1996), 125 F.T.R. 158 (F.C.T.D.), Mr. Justice Dubé opined that personal suitability is an economic factor, and the immigration officer is required to form an opinion as to whether or not the applicant will succeed in his or her chosen field in Canada. The Court held, in Amir, that the immigration officer erred by basing the personal suitability assessment on two irrelevant grounds: the fact that the applicant intended to visit his wife and child in Pakistan once a year, and the fact that the applicant had taken no steps to elevate his level of education.
[34] In the case at bar, the applicant was awarded three units for personal suitability. In her affidavit, the immigration officer explains this decision:
| In assessing personal suitability I took into consideration the ability of the Applicant to become successfully established in Canada based on her adaptability, motivation, initiative and resourcefulness. The Applicant had never visited Canada. She did not pay taxes in the country where she resided and worked. After living in the United States for almost two years she had not managed to learn English. She did not have any knowledge of the Canadian way of living and had not shown any understanding of what would be involved in finding employment in Canada. She had unrealistic expectations of what would happen on her arrival in Canada. Taking all this into consideration, I awarded the Applicant three units of assessment for personal suitability. |
(Applicant"s application record, p. 14)
[35] In her computer notes, the immigration officer wrote the following after personal suitability:
| HAVE ALREADY AWARDED HER THE 5 POINTS BONUS FOR EDUCATION. SHE HAS NOT MANAGED TO LEARN ENGLISH AFTER HAVING LIVED OVER A YR IN THE USA. HER STORIES NOT CREDIBLE, SEEMS SHE DID NOT EVEN COMPLETE HS [high school], STUDIED TO BE PRE-SCHOOL TEACHER, SAYS WAS HIRED IN THIS OCC., THEN SAYS WAS A COOK, THEN WHEN SHE APPLIED FOR CVV SHE WAS SUPPOSED TO BE A SECRETARY (ALL FOR THE SAME CONSTRUCTION CO., BEREG) THEN SHE WAS ISSUED A VISA TO THE USA AS AN ENTERTAINER, ARRIVED IN THE US AND SAYS DID NOT WORK IN THAT, SAYS WORKED AS A SECRETARY (NOT CREDIBLE DOES NOT EVEN KNOW ENGLISH) NOW IS WORKING AS A DOMESTIC FOR A FAMILY IN MASS. WHO EVEN HAVE THE DATES ON THEIR LETTER RE THE TIME SHE HAS BEEN WORKING THERE WRONG, THIS IS WHAT SHE SAYS. ILLEGAL IN THE USA, CAME UNDER FALSE PRETENCES. 3 UNITS OF ASSESSMENT FOR PER SUIT. |
(Applicant"s application record, p. 18)
[36] It is well established in the jurisprudence that an immigration officer cannot engage in double counting when assessing an applicant under the personal suitability factor. Thus, an immigration officer cannot consider an applicant"s language ability or education: Zeng v. Canada (MEI) (1991), 12 Imm. L.R. (2d) 167 (F.C.A.).
[37] Other factors, however, may be considered for personal suitability, so long as they are assessed from a different perspective: Ajmal v. Canada (MCI) (IMM-2399-97, 17 April 1998); Stefan v. Canada (MCI) (1995), 35 Imm. L.R. (2d) 21 (F.C.T.D.).
[38] Knowledge of Canada has been held to be a relevant consideration in the assessment of personal suitability: Hussain v. Canada (MCI) (1997), 36 Imm. L.R. (2d) 232 (F.C.T.D.) and Ali v. Canada (MCI) (IMM-4873-97, 22 July 1998).
[39] Failure to contact employers or engage in a job search in Canada is also a valid consideration for personal suitability: Bhatia v. Canada (MCI) (1996), 121 F.T.R. 85 (T.D.).
[40] In her considerations, the immigration officer appears to have faulted the applicant for having never visited Canada or paid taxes in the U.S. It is difficult to see how either of these points are relevant to personal suitability as set out in the Regulations and interpreted in the jurisprudence.
[41] The immigration officer also faults the applicant for having failed to learn English, which constitutes double counting as the applicant was already assessed negatively on this point, having failed to earn any units of assessment for language ability. Indeed, the immigration officer does not even note the applicant"s attempt to learn English while she was in San Francisco, poor though that attempt may have been.
[42] Furthermore, the applicant"s counsel faxed a letter, marked urgent, to the immigration officer on 20 July 1998, indicating that the applicant had engaged in a somewhat rudimentary job search. While this letter may not be determinative of the issue, it should have been considered by the immigration officer and accorded weight, even if minimal weight.
Language Ability
[43] Insofar as the immigration officer"s assessment of the applicant"s language ability, which resulted in zero units of assessment, her conclusion does not warrant this Court"s intervention. The immigration officer was in a far better position than this Court to assess the applicant"s ability to speak English. The necessity of the second interview, with the assistance of a translator, supports the immigration officer"s conclusion that the applicant speaks English "with difficulty." The same can be said for the immigration officer"s assessment of the applicant"s reading and comprehension abilities.
Conclusion
[44] In the result, because the immigration officer appears not to have considered the applicant"s evidence relating to the comparative assessment of her diplomas and because the immigration officer took into account irrelevant considerations when assessing personal suitability, this application for judicial review is granted and the matter is referred back to another immigration officer to be redetermined.
Ottawa, Ontario
September 7, 1999.
B. Cullen J.F.C.C.