Date: 19990618
Docket: IMM-2052-98
BETWEEN:
ZHANG QING-QIANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is an application for judicial review of the decision of a visa officer in the Canadian Embassy in Beijing, denying the applicant permanent residence in Canada in the Assisted Relative category under the occupation of Cook, Foreign Foods, CCDO 6121-126. The visa officer found that the applicant did not have the equivalent of one year of full-time experience in this occupation and awarded him zero units of assessment under the category of experience.
[2] The CCDO definition for Cook Foreign Foods makes reference to the duties performed by a Chef, Cook General:
| 6121-126 COOK, FOREIGN FOODS |
| Prepares and cooks foreign foods according to traditional recipes and methods for consumption in eating establishments. Performs duties similar to those of 6121 111 CHEF, COOK GENERAL employing traditional methods and utensils. Orders specialty foods or ingredients. Prepares and serves special dishes at patrons table. Performs feats of [illegible] to entertain customers while preparing food if required. Supervises activities of kitchen workers. |
| 6121-111 CHEF-COOK, GENERAL |
| 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, toasts, broils, grills, fries, poaches, stews, braises, boils, sautes and steams meats, fish, vegetables and other foods. Adds seasoning to foods during mixing or cooking according to personal judgement, 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 [illegible].1 |
[3] The applicant is a citizen of China. He has worked at the Shahe Hotel, a China-Hong Kong Joint Venture, in the Guangzhou area since 1980. He began as a kitchen helper and became a Grade 3 Cook in 1985. In 1995, he became a Grade 2 Cook. The applicant reports that he was offered a promotion to the position of Head Chef in mid-1995, but declined because of his intention to immigrate to Canada.
[4] The applicant applied for permanent residence in Canada as an assisted relative sometime between November 8, 1995, and January 25, 1996.2 His parents, an older brother, and a twin brother have all successfully immigrated to Canada. His twin brother applied for permanent residence at the same time as the applicant, apparently with the same qualifications, and was accepted in October 1997. He has been living in Canada since March 1998. The information about the twin brother"s application status was not before the visa officer.
[5] The affidavits included in the applicant"s record before this Court contain a great deal of new evidence, which the respondent correctly submits is inadmissible on judicial review and should be ignored.3 The difficulty, of course, is that there is no way of knowing how much of this "new" evidence was provided to the visa officer orally, since no verbatim record exists of the interview with the visa officer.
[6] The written evidence before the visa officer included information contained in a letter from the applicant"s immigration consultant. That letter stated that the applicant has been a "specialist in cooking and preparing traditional Chinese cuisine" for the past 10 years. The letter explains that the applicant "works in coordination with other cooks to prepare and cook food. His main responsibilities include planning menus for each forthcoming seasons, consulting with chief cook regarding banquet menus, preparing and cooking food according to recipes or patrons" instructions, and supervising subordinate cooks and kitchen workers." The letter also points out that Mr. Zhang "developed new recipes and demonstrated cooking techniques at the Guangzhou Food Festival "95."
[7] The Tribunal Record also contains a certificate confirming that the applicant was a kitchen worker from December 1980, to November 1985, a grade-3 chef from December 1985, to April 1995, and a grade-2 chef since that time. At pages 25A and 25B of the Tribunal Record is a copy (not translated) of the applicant"s results in a cooking test he took for immigration purposes. The results show that he scored 59.85. The visa officer states that 60 is a passing score.
[8] The visa officer describes and comments in his CAIPS notes on the information he obtained from the applicant at the immigration interview. The visa officer wrote:
| Based on subject verbal description, I am not satisfied that the subject meets the CCDO definition for cook foreign foods. Subject works in kitchen with staff of 37 people. There are 8 responsible to cook with 8 assistants. Indicates that a head chef supervises this group. Subject indicates that he is responsible for food preparation. Specifically, subject indicates that he is responsible for preparing sauces and that he does not cut up the food. Indicates that he is responsible for cooking foods as well as they are subject indicates that he reports to the managers and the head chef. He does not have supervisory responsibility over anyone and does not provide guidance or demonstration of methods. Furthermore, subject took part in examination by Chinese Cuisine Association (reputable and established as standard for chef ability determination) on 29/10/97. Based on the Chinese Cuisine Association assessment, it does not appear that he meets the minimum requirements to be considered as a cook/chef. |
| I question the reliability/accuracy of his grade two certification. Based on his job duties description and using the cooking test as a tool of measurement, I am not satisfied that he meets the CCDO for his intended occupation of Cook, Foreign Foods. Based on a detailed analysis, I am of the opinion that he meets the CCDO definition of Cook, Third (AKA Cook Helper - an occupation with zero demand under both CCDO and NOC). ... Presented my concerns, but he can only state that he is a cook.4 |
[9] In his letter of rejection, the visa officer stated that the applicant did not have "one year of full-time experience, or the equivalent, in this occupation, and so I cannot award you any units of assessment for experience." The visa officer went on to explain his reasoning as follows:
| You completed a test of cooking ability conducted by the China Cuisine Association on 29 October 1997 prior to your interview at the Canadian Embassy in Beijing. Although this test indicates if an applicant has ability it does not verify if the applicant has the required work experience for the intended occupation. On your application form you indicated that you are a "Chef" and that you intend to work as a "Cook, Foreign Foods" in Canada. I assessed your qualifications and work experience and compared the information you provided with the information provided in the Canadian Classification and Dictionary of Occupations (CCDO). Your work experience does not meet the definition of Cook, Foreign Foods and you have therefore been assessed zero units for experience in this occupation. |
| I have also assessed your application considering the occupation of Cook, Third (CCDO 6121-134) in which you are qualified and experienced. There is however no demand in Canada for this occupation and you therefore receive zero units of assessment for occupational demand.5 |
[10] The definition for the occupation of Cook, Third, mentioned by the visa officer is as follows:
| 6121-134 COOK, THIRD |
| Assists cook in food preparation and cooks food for consumption in dining rooms, restaurants, hospitals and similar establishments. Performs cooking duties similar to those of 6121 111 CHEF COOK GENERAL under supervision. Washes, peels, [illegible], cuts, trims and performs related duties to prepare foodstuffs for [illegible] chefs, cooks and other kitchen workers. Places leftover food in containers and stores food in designated areas. Distributes supplies and trays of food to other workers, by hand or using push cart. |
[11] The applicant submitted a second affidavit after reading the visa officer"s affidavit and the CAIPS notes. In the second affidavit, he expands upon the information he provided in his first affidavit, and disputes much of the visa officer"s assessment of how the interview was conducted. For example, at paragraph 3 he states that the information reported by the visa officer is incorrect. The applicant states that when the visa officer asked him about his work duties, he began explaining that he begins each morning by preparing the sauces needed for cooking that day, he also meets with the head cook and second cook to discuss new dishes and so on. He then states that he began to tell the officer that he helped to train new staff when the visa officer told him to stop. He claims that he was never asked to complete his job description and "assumed that the visa officer was satisfied with my description." He also alleges in his second affidavit that he was not asked any questions about his supervisory responsibilities and indicates that he would never have answered no to such a question, since he spends a great deal of time teaching junior cooks and supervising the third cooks. As for cutting food, he explains in his affidavit that as a Second Cook, he has more senior duties to fulfil than cutting food, a task he frequently completed while working as a kitchen helper.
[12] The applicant also explains his discussion with the visa officer regarding he and his brother"s plans to open a restaurant. The visa officer stated the following on this issue in his CAIPS notes:
| Subject scores low on PS. Does not demonstrate the initiative or resourcefulness to empower himself for establishing in Canada. Aside from motivation apparently based on subject indicating that Canada is a democratic and free country and will offer him a lot of job opportunities, there is little else of substance. Vague references only. Maybe start up a restaurant in Cda. When asked if has looked into what is required, he does not know. When asked how his skill sets would transfer, he does not know. When asked what difficulties he feels he may encounter, he does not appear to considered it. Appears to want to rely solely on brother.6 |
[13] The applicant describes the conversation he had with the visa officer at paragraph 5 of his second affidavit:
| I told the Visa Officer that I intended to open a restaurant with my brother after I landed in Canada. The Visa Officer inquired if I had any knowledge about opening a restaurant in Canada. Initially, I misunderstood his question and I replied that I would need staff and equipment. The Visa Officer then rephrased his question and asked me about the procedure of starting a restaurant in Canada. I told the Visa Officer that I would need to apply for at least four licenses before I could start a restaurant: an operating license, a health and hygiene certificate; a waste disposal certificate and a fire certificate. |
| The Visa Officer also asked me about the difficulties that I anticipated to encounter. I told him that I thought language was my major barrier. But I also told him that I intended to take lessons to improve my English. I was not asked any questions about the transfer of my skill sets. I deny telling him that I did not know how my skill sets would transfer. |
[14] The applicant denies that the visa officer raised concerns about his job duties and responsibilities, although he does state that from the very beginning of the interview, the visa officer stated that he doubted the applicant"s Grade 2 Cook qualification. The visa officer affirms in his affidavit that he explained his concerns to the applicant. He states that "when given the opportunity to respond, [the applicant] only would state that he was a cook."
[15] The respondent asserts that the issue underlining this application is credibility - that the visa officer's version of the interview is more likely to be accurate than the applicant's. The respondent, of course, has the capacity to record these interviews should she so choose. A reviewing Court is in a difficult position when the respective parties come forward with different versions of what occurred. Visa officers must often be subject to pressures and overwork that can affect their judgment. The CAIPS notes are certainly a very cryptic record of the interview to which they relate.
[16] All that having been said, however, I must remain mindful of the fact that in reviewing the visa officer's decision I must be able to conclude that he based his decision "on an erroneous finding of fact [...] made in a perverse or capricious manner or without regard for the material before" him. I cannot so conclude in this case.
[17] For the reasons given the application will be dismissed.
Judge
OTTAWA, ONTARIO
June 18, 1999
__________________1 A copy of these CCDO definitions are provided as attachments to the visa officer"s affidavit. The photocopy quality is very poor and difficult to read.
2 The application bears the date November 8, 1995, and is date stamped as "received" on February 22, 1996.
3 The respondent relies on LGS Group Inc. v. Canada (Attorney-General) , [1995] 3 F.C. 474 at 495 (T.D.) and Quintero v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 251 (T.D.), both of which clearly state that no new information can be considered by the Court on judicial review. In Quintero, Mr. Justice Teitelbaum stated, "It is not for a Judge on judicial review to assess documents not produced before the Board to conclude that the Board rendered its decision in a manner not in accordance with the law or without proper appreciation of the facts."
4 CAIPS notes, Tribunal Record, page 6.