Date: 20011107
Docket: IMM-4313-00
Neutral citation: 2001 FCT 1221
BETWEEN:
DIODORA ZACARIAS ET AL.
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] In the present case, the Applicant applied for permanent residence in the job category "Baker", NOC 6252. The Visa Officer refused the application on the grounds that the Applicant did not have the required experience in her intended occupation. The Applicant seeks judicial review of this decision.
[2] At the time of her application, the Applicant had been employed as a Planning Officer with the Phillippines government since 1992, and also had been a self-employed baker operating out of her home for approximately 10 years. After conducting a selection interview with the Applicant, the Visa Officer concluded that the Applicant had not accumulated at least one year of experience as a baker. Based on this lack of experience, the Visa Officer awarded the Applicant 0 units under the Experience Factor. Subsection 11(1) of the Immigration Regulations prohibits visa officers from awarding visas to applicants who fail to earn at least one point in this factor.
[3] With respect to the interview and the decision reached, the Visa Officer's CAIPS notes read as follows:
INTERVIEWING NOTES
- CONFIRMED APPLICANT WISHES TO BE ASSESSED AS A BAKER.
- ASKED HER HOW LONG SHE HAS BEEN BAKING - SAID OVER 10 YEARS
- ASKER HER WHAT KIND OF BAKING SHE DOES - SAYS SHE SPECIALIZES IN LITTLE PHILIPPINO CAKES,
- IS BAKERY BUSINESS LICENSED? - NO
- ASKED HER WHEN SHE BAKES - SAYS AT NIGHT AND SOMETIMES ON THE WEEKEND.
- CLARIFIED IT WAS NOT FULL TIME WORK
- SAYS SHE WORKS IN THE PLANNING DEPT DOING CLERICAL WORK 8 HOURS PER DAY.
- SAYS SHE BAKES A NIGHT AND TAKES ORDERS FROM CANTEENS,
- I ASKED IF SHE HIRED ANY STAFF OR BAKING PERSONNEL
- SAID NO - JUST HAS HER HELPER AT HOME AND SHE DOES GROCERIES AND TAKES ORDERS
- ASKED IF SHE HAS TAKEN ANY BAKING COURSES - SAYS SHE TOOK A CAKE DECORATING COURSE.
- ASKED APPLICANT IF SHE HAD ANY PRODUCTION SCHEDULES
- DID NOT UNDERSTAND QUESTION
- ASKED APPLICANT HOW SHE TOOK ORDERS - SAID SOMEONE WOULD CALL HER UP AND TELL HER HOW MANY CAKES THEY WANT AND SHE WOULD PREPARE THEM. THEN SOMEONE WOULD PICK THEM UP.
I ADVISED APPLICANT AT THE CONCLUSION OF OUR INTERVIEW I COULD NOT APPROVE HER APPLICATION SINCE I WAS NOT SATISFIED SHE HAD THE EXPERIENCE FACTOR BY ANY SORT OF WESTERN STANDARD AS DESCRIBED IN NOC.
BUSINESS HAS BEEN PART TIME, NOT LICENSED, SHE DOES NOT DO ANY FORMAL BOOKKEEPING TO TRACK HER BAKING. [Emphasis added]
[4] The central issue in this judicial review is: "Did the Visa Officer err in her assessment of the Applicant's work experience as a baker by improperly applying the National Occupation Classification requirements". I find the answer to be: "Yes".
[5] NOC 6252 stipulates that "bakers perform some or all of the following duties":
• Prepare dough for pies, bread and rolls and sweet goods, and prepare batters for muffins, cookies, cakes, icings and frostings according to recipes or special customer orders
• Bake mixed doughs and batters
• Frost and decorate cakes or other baked goods
• Draw up production schedule to determine type and quantity of goods to produce
• Purchase baking supplies
• Hire and train baking personnel
• May oversee sales and merchandising of baked goods.
[6] I find that the Visa Officer's CAIPS notes constitute the evidence to which weight can be given regarding the criteria used to reach the decision in the present case. The problem is that the criteria applied as evidenced in the CAIPS notes as emphasized above are not requirements of the NOC. Therefore, in my opinion, the decision reached is based on extraneous considerations.
ORDER
Accordingly, I set aside the Visa Officer's decision and refer this matter to a different Visa Officer for reconsideration.
"Douglas Campbell"
Judge
Winnipeg, Manitoba
November 7, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-4313-00
STYLE OF CAUSE: Diodora Zacarias et al v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: November 7, 2001
ORDER AND REASONS FOR ORDER OF
THE HONOURABLE MR. JUSTICE CAMPBELL
DATED NOVEMBER 7, 2001
APPEARANCES
David Davis for the Applicant
Nalini Reddy for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg, MB R3C 0S6
SOLICITORS OF RECORD
Davis & Luk Immigration Law for the Applicant
Barrister, Solicitor & Notary
201 - 233 Portage Ave.
Winnipeg, MB R3B 2A7
Morris Rosenberg for the Respondent
Deputy Attorney General of Canada