Federal Court Decisions

Date: 19971125

Docket: IMM-122-97

BETWEEN:

     TATIANA KULIEV,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

HEALD D.J.

[1]      This is an application for judicial review of the decision of visa officer Lynn M. Lawless dated December 10, 1996. Visa officer Lawless was employed at the Canadian Embassy in Guatemala City, Guatemala. By that decision the applicant's application for permanent residence in Canada was refused.

FACTS

[2]      The applicant applied for permanent residence in the independent category. On her application she stated her present occupation as "Head Chef-Pastry". She said that she intended to pursue the occupation of "Chef-Patissier" in Canada. She attended for an

interview before visa officer Lawless on December 9, 1996. Prior to the interview, visa officer Lawless consulted the C.C.D.O. job descriptions for "Chef-Patissier"and related occupations. She also consulted the Occupational Entry Requirements for Cooks and Chefs in order to become informed as to the duties, as well as the education and training requirements associated with those occupations in Canada.

[3]      The December 9th interview was conducted in English without an interpreter. The applicant stated that she did not have any trouble communicating during the interview. However, the visa officer had a different view. She said the applicant spoke English with difficulty. It was necessary for her to repeat or clarify her responses. The applicant's evidence was that she had completed 10 years of schooling and then entered a 10 month college course entitled "Cook - Patisserie of Industrial Production". She described her duties as a cook-patisserie from September 1989 to October 1990. She also described her work experience at a well-known restaurant in Israel from May, 1992 to August 1995.

THE DECISION OF THE VISA OFFICER

[4]      By a decision dated December 10, 1996, the applicant's application for permanent residence was refused. In the view of the visa officer, the applicant did not possess the required vocational preparation and work experience as set out in the C.C.D.O. job description of "Chef-Patissier". In her view, the applicant's vocational preparation and work experience more closely resembled the position of "Baker-Pastry Chef".

ISSUES

[5]      In my view there are four principal issues raised by this application.

a)      Did the visa officer fetter her discretion by referring to the Occupational Entry Requirements for Cooks and Chefs?

b)      Did the visa officer err by ignoring the evidence with respect to the applicant's work experience?

c)      Did the visa officer err in assessing the applicant's English language ability?

d)      Did the visa officer err in assessing the applicant's education and experience?

ANALYSIS

a)      Fettering Discretion

[6]      The applicant submits that the visa officer fettered her discretion by taking into consideration guidelines set by the National Occupational Classifications ("N.O.C."). In my view, the record does not support this view. In her affidavit the visa officer deposes that she consulted the N.O.C. to familiarize herself with the duties for cooks and chefs. Her affidavit clearly shows that she relied on the description of "Chef-Patissier" in the C.C.D.O. for her conclusion that the applicant's training and experience was insufficient to satisfy the requirements for the occupation of "Chef-Patissier". She did not rely on the N.O.C. material.

b)      Ignoring Evidence

[7]      The applicant submits that the visa officer failed to consider a letter received from the applicant's employer in Israel. In that letter the employer stated that the applicant performed supervisory duties. In her questioning of the applicant, the visa officer specifically addressed this issue. She asked her directly about her experience in supervising other employees. Her response was that her main responsibility was to bake holiday cakes and to decorate them. On the basis of the applicant's replies to the questions of the visa officer, it was reasonable for the visa officer to conclude as she did that the applicant did not satisfy the requirements of a Chef-Patissier as set out in the C.C.D.O definition.

c)      English Ability

[8]      The applicant alleges error on the part of the visa officer for only awarding the applicant 2 units of assessment for language. On her application the applicant stated that she spoke English well. However, during the interview it became apparent that she spoke English only with difficulty. On this basis, the visa officer's assessment does not appear unreasonable and should not be disturbed.

d)      Education and Experience

[9]      The applicant submits that the visa officer erred in awarding her only 10 units of assessment for education. The applicant completed a 10 month full-time post-secondary college program. Such a course is equivalent to two complete semesters of one complete academic year. The applicant should have been awarded 13 units of assessment instead of ten. However, the difficulty from the applicant's perspective is that even with this addition, the applicant has only 56 units of assessment, some 14 units below the 70 units required for an independent applicant.

[10]      The applicant makes a further submission of error, namely, that in assessing units for specific vocational preparation ("S.V.P."), the visa officer considered only the period of the applicant's academic studies whereas she should also have considered the applicant's training and work experience.

[11]      I do not agree that the visa officer ignored the applicant's experience. She had regard to the applicant's experience and concluded that such experience was more closely related to the occupation of a baker, and, on this basis, found that the applicant's experience did not correspond to the occupation under which the applicant sought to be assessed. In such a conclusion, I am unable to find reviewable error.

CONCLUSION

[12]      For all of the foregoing reasons I have concluded that the within application for judicial review must be dismissed.

CERTIFICATION

[13]      Counsel for the applicant submitted two questions for certification pursuant to section 83 of the Immigration Act. Those questions are as follows:

1.      Where an applicant for independent immigrant status attends an interview without an interpreter, hoping thereby to demonstrate her language skills, but the visa officer determines that she is in fact unable to communicate effectively, is the visa officer under a duty to warn the applicant of this fact in circumstances where the applicants' inability to express herself may jeopardize the evidence that the applicant is able to present to support her claim?

2.      Should a writ of certiorari issue in circumstances where correction of the error for which relief is sought may have no direct impact, in and of itself, on the ultimate disposition of the case?

[14]      Insofar as Question No. 1 is concerned, I agree with counsel for the respondent that the question is fact specific to this case and, in any event, such a situation has been considered in the general jurisprudence of this Court.

[15]      Dealing now with Question No. 2, it is my view here as well that the law is well settled.

[16]      For these reasons, I decline to certify either of the questions put forward by counsel for the applicant.

                             Darrel V. Heald

                             Deputy Judge

OTTAWA, ONTARIO

November 25, 1997