Jurisprudence: Procedural Fairness

BETWEEN: - WEN JIE HUANG, (Applicant) - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION, (Respondent).

REASONS FOR ORDER

HEALD D.J.:

[1] This is an application for judicial review of a visa officer's decision dated September 9, 1996. By that decision, the applicant's application for permanent residence was refused.

FACTS

[2] The applicant applied for permanent residence in Canada under the assisted relative category. The occupation listed was "cook, foreign foods". The applicant had worked in the same restaurant since 1983. Until 1989, he was employed as a kitchen helper. Thereafter, he has been employed as a chef. In a refusal letter dated September 9, 1996, the visa officer awarded the applicant 54 units of assessment. In that letter she stated:

You stated that you obtained your Grade 3 cooking certificate in February 1995, and your Grade 2 certificate in July 1996. You claimed that you completed 6 weeks of full time cooking training at the Vocation Training School in Taishan in February 1995 in order to qualify for the Grade 3 certificate. You did not state that you have taken any other formal cooking training since then. According to guidance we have received from the PRC Ministry of Labour, the following is required in order to obtain the Grade 2 or Intermediate Level Certificate:

1. After receiving the junior (Grade 3 certificate), a cook must work for at least three successive years, AND

2. the cooks' skills must be formally trained by a middle grade cook.

As you have not met either of these requirements, I can only conclude that your Grade 2 Certificate was improperly obtained. For your information, in order to qualify as a cook of foreign foods, you must be able to demonstrate a combination of vocational cooking training, a grade 2 cooking certificate or higher AND acceptable working experience in a large, well-established restaurant or hotel. Your experience in the Sanhe Supply and Marketing Cooperative Restaurant in Taishan City, which was verified by telephone following your interview, does not meet the latter requirement.

[3] The visa officer then proceeded to assess the applicant in the occupation of cook second. However, since there was no demand for that occupation in Canada, no units of assessment for occupational demand were awarded.

ISSUE

1. Did the visa officer violate the principles of procedural fairness by relying on evidence not known to the applicant and by not disclosing to the applicant the allegation that the applicant's Grade 2 certificate had been fraudulently obtained?

ANALYSIS

[4] The applicant submits that the vocational assessment standard relied on by the visa officer was not disclosed to the applicant at his interview with the visa officer. It appears that this information was received by applicant's counsel after the refusal letter was received. Counsel had the letter translated. In the submission of counsel based on that translation, the document does not establish the facts upon which the visa officer relied. In her refusal letter, the visa officer said that for a Grade 2 certificate to be obtained, an applicant must work for three years after receiving a Grade 3 certificate and must be trained by a middle cook. However, the applicant's translated letter provides that an applicant is eligible to apply for a Grade 2 certificate if she has fulfilled one of the following conditions:

a) has worked in this field consecutively for 6 years;

or

b) obtained a Grade Three Chinese Chef Certificate and had been working in the field for over 3 years;

or

c) obtained the Grade Three Chinese Chef Certificate and attended the formal Grade Two Chinese Chef training course and a graduation (or completion) certificate awarded.

[5] Based on her translation of the document, the visa officer concluded that the applicant had improperly obtained her Grade 2 certificate. This was a serious allegation which should have been put to the applicant by the visa officer. However, the problem is that the visa officer was not in possession of this information until after the applicant's hearing was completed. In my view, the visa officer breached the principles of procedural fairness by: a) relying on this document without the applicant having been given an opportunity to review the translation and make submissions thereon; and (b) by failing to put such a serious allegation of impropriety to the applicant so that he could respond. There are significant discrepancies between the translation by the visa officer's staff and the translation by applicant's counsel. These discrepancies should have been explored at the visa officer's interview.

[6] The applicant should have been given the opportunity to disabuse the visa officer of her conclusions which were based solely on one translation.

CONCLUSION

[7] For the foregoing reasons, the within application for judicial review is allowed, the decision of the visa officer herein dated September 9, 1996, is set aside and the matter is returned to a different visa officer for rehearing and redetermination on a basis not inconsistent with these reasons for order.

CERTIFICATION

[8] Neither counsel suggested certification of a serious question of general

importance pursuant to section 83 of the Immigration Act. I agree that this is not a proper case for certification.

Darrel V. Heald Deputy Judge

OTTAWA, ONTARIO

January 20, 1998