Date: 20020710
Docket: IMM-1727-01
Neutral citation: 2002 FCT 770
Ottawa, (Ontario), this 10th day of July, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
DI MING HU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant was refused an employment authorization visa for a position of Head Chef at a large restaurant in Quebec. The visa officer assessed the applicant as neither experienced nor qualified for the position described in his offer of employment. The applicant now applies for judicial review of the negative decision, claiming relief based on erroneous finding of fact.
ISSUE
[2] Should this Court intervene and quash the visa officer's decision?
[3] The answer is no.
FACTS
[4] The applicant has been offered a validated job offer that stated the following:
CNP: 6241 TITRE: HEAD CHEF
EXIGEN: PROFESSIONAL COOKING SKILL; MIN. 5 YRS EXP. AS "HEAD CHEF" IN BIG REATAURANT [sic] OR HOTEL ANY LANGUAGE
FONCT: SETTING MENU - EVALUATION & SUGGESTION ON IMPROVING WORKING ROUTINE RE-EFFICIENCY, UPGRADE QUALITY OF FOOD & CREATION OF ATTRACTIVE ITEMS - SUPERVISE & TRAIN STAFF - CONTROL OF FOOD VOLUME ESTIMATION/ PURCHASING
[5] The applicant started in the kitchen at a hotel as a general helper between 1987 and 1992.
[6] In 1992, he became a Third Wok; in 1994, a Second Wok and in 1995, he was promoted to First Wok. He was working in the kitchen of the hotel where there were 60 tables, each table sitting eight people. Nine people were working in the kitchen and someone else was in charge of the management. In the end, the applicant was cooking the most expensive food and did the regular dishes for staff training or for the VIP customers.
DECISION FROM THE VISA OFFICER
[7] On a short form, the visa officer indicated to the applicant that:
You have not satisfied the visa officer that you had the qualifications and experience for the employment for which the authorization is sought.
APPLICANT'S SUBMISSIONS
[8] The Applicant submits that the visa officer's decision is unreasonable mainly because she emphasized too much on unrelated and non pertinent elements of the validated job offer.
[9] The Applicant meets the criteria of the job offer and because he had someone else with him in the management section, he could offer suggestions and recommendations.
RESPONDENT'S SUBMISSIONS
[10] The decision is not patently unreasonable.
[11] The visa officer has all the jurisdiction to decide and this Court should not intervene.
ANALYSIS
Standard of Review
[12] Even though the Respondent argues that the standard of review for the visa officer's decision is patently unreasonable, I am of the opinion that the standard of review is reasonableness simpliciter. In Chow v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1384 (Q.L.) (F.C.T.D.), Lemieux J. stated at paragraph 18:
In Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 95, Justice Rouleau found that the standard of review on the merits of an immigration officer's decision dealing with an application for a Canadian student visa was reasonableness simpliciter. I find the same standard of review applicable to a visa officer's decision on an application for an employment authorization and a visitor's visa. [emphasis added]
LEGAL PROVISIONS
[13] The legal provisions that apply here are s. 20(1), (3) and (4) of the Immigration Regulations. These read:
| 20. (1) An immigration officer shall not issue an employment authorization to a person if,
(a) in his opinion, employment of the person in Canada will adversely affect employment opportunities for Canadian citizens or permanent residents in Canada; or
(b) the issue of the employment authorization will affect
(i) the settlement of any labour dispute that is in progress at the place or intended place of employment, or
(ii) the employment of any person who is involved in such a dispute.
(3) In order to form an opinion for the purposes of paragraph (1)(a), an immigration officer shall consider
(a) whether the prospective employer has made reasonable efforts to hire or train Canadian citizens or permanent residents for the employment with respect to which an employment authorization is sought; (b) the qualifications and experience of the applicant for the employment for which the employment authorization is sought; and
(c) whether the wages and working conditions offered are sufficient to attract and retain in employment Canadian citizens or permanent residents.
(4) Where an immigration officer considers the questions set out in paragraphs (3)(a) and (c), he shall take into consideration the opinion of an officer of the office of the National Employment Service serving the area in which the person seeking an employment authorization wishes to engage in employment.
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20. (1) L'agent d'immigration ne peut délivrer d'autorisation d'emploi à une personne
a) s'il est d'avis que l'embauchage de cette personne nuira à celui des citoyens canadiens ou des résidents permanents au Canada; ou
b) si la délivrance de ce permis nuira
(i) au règlement de tout conflit de travail qui sévit au lieu de travail ou au lieu prévu de travail, ou
(ii) à l'emploi de toute personne touchée par ce conflit.
(3) Pour être en mesure de se faire une opinion aux fins de l'alinéa (1)a), l'agent d'immigration doit tenir compte des facteurs suivants, à savoir :
a) si l'employeur éventuel a fait des efforts raisonnables pour embaucher ou former des citoyens canadiens ou des résidents permanents afin qu'ils puissent exercer l'emploi pour lequel une autorisation d'emploi a été sollicitée; b) si le requérant possède les qualités et l'expérience voulues pour exercer l'emploi pour lequel une autorisation d'emploi a été sollicitée; et
c) si les conditions de travail et le salaire offerts sont de nature à attirer des citoyens canadiens ou des résidents permanents pour qu'ils exercent et continuent d'exercer l'emploi en question.
(4) L'agent d'immigration doit tenir compte de l'opinion d'un agent du Bureau du service national de placement dont relève le secteur où la personne sollicitant une autorisation d'emploi désire exercer un emploi pour ce qui concerne les points visés aux alinéas (3)a) et c).
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[14] After a complete review of the facts before me, I am satisfied that the visa officer rendered a reasonable decision when she refused the applicant's employment authorization. I do not agree with the applicant's submissions that he possessed all the qualifications and experience mentioned in the job description.
[15] The visa officer considered that the applicant was not the kitchen manager at the hotel who was responsible for the administration and management of the kitchen operation.
[16] By reading carefully the functions in the validated job offer, I conclude that the word "experience" meant more than only "recommendations and suggestions" as alleged in the applicant's submissions.
[17] The visa officer had concerns that the applicant did not have the required administrative and managerial experience to perform all the duties outlined in the job offer.
[18] I am also satisfied that the visa officer considered the pertinent elements of the job description and came to the conclusion that the applicant did not possess the required experience to perform the job being offered.
[19] It is important to note that the applicant was interviewed and was given the opportunity to respond to the questions from the visa officer.
[20] I therefore see no reason why I should disturb her decision.
[21] The application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
(signed) Michel Beaudry
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1727-01
STYLE OF CAUSE:
HU, Di Ming
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: May 7, 2002
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE BEAUDRY
APPEARANCES:
Mr. Jean-François Bertrand FOR APPLICANT
Mr. Guy Lamb FOR RESPONDENT
SOLICITORS OF RECORD:
Bertrand, Deslauriers FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec