Date: 20010516
Docket: IMM-4468-00
Neutral Citation: 2001 FCT 486
BETWEEN:
NICOLAE BURCATII
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application is for judicial review of a decision of a visa officer, dated July 13, 2000, refusing the Applicant's application for permanent residence in Canada on the ground that the Applicant failed to obtain the minimum units of assessment required by the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") and the corresponding Regulations.
[2] The Applicant, a Moldovian national, applied for permanent residence in Canada at the Canadian Embassy in Bucarest on October 21, 1998. He requested to be assessed under the occupation of "agricultural specialist" (NOC 2123.0). He attended an interview on June 22, 2000.
[3] On July 13, 2000, the visa officer refused the Applicant's application for permanent residence in Canada on the ground that the Applicant had failed to obtain the minimum number of units of assessment required. The Applicant had obtained 65 points. He was awarded 2 points for his French abilities and 4 points under the personal suitability category; the primary issues before the Court.
[4] Whether the visa officer erred in his assessment of the Applicant's language abilities and personal suitability - Whether the visa officer breached the duty of fairness by failing to give the Applicant an opportunity to address his concerns
[5] The Applicant contends that the visa officer erred by failing to assess his abilities to read or write French. The visa officer merely assessed his speaking abilities. Consequently, the visa officer's assessment of the Applicant's abilities to read or write was based on capricious and arbitrary findings.
[6] The Applicant submits that the visa officer's conclusion that he would be unable to establish himself successfully in Canada was based upon irrelevant considerations or extraneous evidence. The visa officer never specifically questioned the Applicant on his concerns regarding the transferability of his working skills because of the difference between the communist and free-market models of agriculture. Furthermore, the visa officer relied on internal reports to the Embassy, which were not disclosed to the Applicant, to evaluate Moldovan agriculture.
[7] The Respondent submits that the visa officer awarded zero points for the Applicant's ability to speak French, but he awarded him the points corresponding to the applicant's self-assessment for reading and writing abilities, as set out in his application for permanent residence. According to the Respondent, there is no obligation on a visa officer to make further inquiries into statements on the application if he is not challenging those statements but is awarding units according to the Applicant's own self-assessment. The Applicant has not shown that, had tests been given by the visa officer, the points awarded would have been different than his own self-assessment. Even if the visa officer erred on this issue, the error is of no consequence as the Applicant could not have obtained the points required for the issuance of a visa (maximum 2 additional points).
[8] As for the visa officer's assessment of the Applicant's personal suitability, the Respondent argues that the Applicant has not demonstrated why the visa officer should have awarded him more points. The visa officer noted that the Applicant did not know who would require his expertise in Canada and where he could find employment. Furthermore, the Applicant was unable to satisfactorily explain to the visa officer his plan to work in Canada. Under those circumstances, the visa officer was under no obligation to further question the Applicant or inform him of any concerns with respect to the transfer of his working skills.
[9] In To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No 696 (unedited), the Federal Court of Appeal held that the appropriate standard of review of the discretionary decisions of visa officers with respect to immigrant applications was the same as that enumerated in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, where MacIntyre, J., stated the following:
"It is, as well, a clearly-established rule that the court should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility.
Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere." (at pages 7 and 8)
[10] This has been confirmed by the Court in Tajammul v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 259. In light of the Supreme Court decision in Baker v. Canada (M.C.I.), [1999] 2 R.C.S. 817, it would seem that the standard of review should be reasonableness simpliciter.
[11] There are two aspects to the claim. One relates to the visa officer's assessment of the Applicant's French proficiency, the other to his assessment of the personal suitability criterion.
[12] The Applicant alleges that at no point during the interview was he tested with regard to his abilities to write and read French. In his notes, the visa officer stated the following:
"LANGUAGE ASSESSMENT: French is extremely rusty but has basic idea. 2 points."
[13] In his application for permanent residence, the Applicant indicated that he wrote, read and spoke French "well".
[14] The Regulations provide that, for a second official language evaluation, an applicant is to be awarded a maximum of 2 credits each for his abilities to speak, read and write fluently, for a maximum of 6 credits. Applicants that speak, read and write well will be awarded 1 credit for each ability, for a maximum of 3 credits. Once this determination is made, the credits are converted into units of assessment on a one-for-one basis.
[15] There is some speculation as to how the units were awarded in the present case. Considering the number of units of assessment awarded to the Applicant, it must be assumed that he was afforded two credits. The Respondent contends that the visa officer awarded 0 credits for the spoken abilities (speaks with difficulty) and that he awarded 1 credit each for written and reading abilities (writes and reads well), pursuant to the Applicant's self-evaluation. The result is 2 credits, which in turn translates into 2 units of assessment. On the other hand, the Applicant contends that the written and reading abilities were never evaluated and that this, in and of itself, constitutes a reviewable error. It is important to note that the Applicant does not appear to dispute the evaluation of his spoken abilities. The visa officer admits in his affidavit that no written or reading tests were administered but contends that he was not legally bound to assess the Applicant for each criterion under the "French" factor if he was in agreement with the Applicant's self-assessment, provided he did not intend to lower the points.
[16] The Applicant has cited three decisions (Atacan v. M.C.I. (April 19, 1999), IMM-1309-98 (F.C.T.D.); Chatrova v. Canada (1996), 34 Imm. L.R. (2d) 59; Teodorvici v. M.C.I. (August 31, 2000), IMM-1429-99, (F.C.T.D.)) in support of his contention that the visa officer was under a strict obligation to assess all three of his French language abilities in order to fairly evaluate the "French" criterion. I believe important distinctions can be made with respect to all three decisions. In Atacan, the visa officer did not interview the applicant and relied on two study certificates to determine that his French was "well" but not "fluent", thus going against the applicant's self-assessment without even giving him an opportunity to demonstrate his abilities. No test actually occurred. Similarly in Teodorvici, there was no evidence on file that the visa officer had actually assessed the applicant's French abilities.
[17] In Chatrova, the visa officer tested the applicant's verbal abilities and decided that she spoke French "well" but not "fluently", contrary to the applicant's self-assessment. The visa officer then accepted, without administering a test, the applicant's self-assessment with respect to her reading abilities. The visa officer assumed, without any tests, that her writing abilities were comparable to her speaking abilities and therefore disregarded the applicant's self-assessment in this respect. Reed J., who wrote the decision, held the following:
"No test was done nor was she asked to demonstrate her writing ability. In the circumstances of this case, this is a significant error. The applicant has a university degree for which her major area of study was English language and literature. Following her graduation she held several jobs including that of English teacher and librarian. She now works with the Lativian - Russian Joint Venture Solis - Riga. In that job she works mainly in the Russian and Lativian languages but she also translates documents, when required, into English. It is certainly within the common knowledge of many people who acquire a second language that when one is not surrounded by the spoken language, fluency in reading and writing is more easily attained than fluency in speaking. Even if I may not take notice of this consideration, given the applicant's educational and employment history, I do not think the visa officer can reject her self assessment with respect to her writing ability on the basis of the assumption that it is at the same level as her speaking ability. Counsel for the respondent argues that it is for the applicant to prove her skills. That is so but, in the circumstances of this case, I think that she is entitled to be alerted to the fact that her self assessment in being questioned before a burden falls on her to provide further evidence in this regard."
[18] I believe that the reasoning of this latter decision should be applied to the present case. The evidence before the visa officer showed that as part of the Applicant's training, he had to undergo a French examination. In his cross-examination, the visa officer indicated that he felt that on the basis of the evidence before him, and after having done an evaluation of the Applicant's verbal abilities, it was reasonable to assume that the Applicant could perform "well" in reading and writing, as he had claimed on the application form. Applying the Chatrova decision, I agree that in the circumstances of this case, the visa officer's assessment was reasonable and that no breach of the duty of fairness occurred. I would furthermore point out that had the Applicant been tested on the two abilities and had he obtained points corresponding to "fluency" (which is a higher level than that at which he had assessed himself), he still would not have obtained the necessary units of assessment to be granted a visa.
[19] According to the Regulations:
"Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities."
[20] As the visa officer's interview notes, affidavit and cross-examination show, the visa officer considered a number of elements in his assessment of the Applicant's personal suitability. The visa officer noted that the Applicant did not know who would be needing his skills in Canada and had no idea as to where he would find work. The CAIPS notes contain some relevant findings:
"MOTIVATION: Firstly for future of children. No possibility to use knowledge and potential. Situation getting worse.
TRAINING & EMPLOYMENT - PA: Works for state structure for inspections in Ministry of Agriculture. Coordinate activities of breeding on state-run farms. Provides advice and counselling to farmers. Coordinates scientific activity such as research and results. Reports for exhibitions, etc. Develop drafts of regulations, methods, etc.
Clearly meets description of Agricultural specialist 2123.
What is plan for fitting in to profession in Canada. Knows there is breeding-agriculture in Canada. Does not seem to have too clear idea who he would actually work for, but seems reasonably determined. When I ask later, says it doesn't matter much to him where he lives, and is willing to begin at lower level. [...]
SUITABILITY: A little below average. Nice, straightforward people, but I'm not sure I see quite where they fit into Canadian workplace. No experience with free-enterprise system, little sign of having had to adapt to new places or types of work. While I have no doubt about PA's skills, not sure he will be able to transfer them to Canadian system. Mrs. would not be employable in short term. With one worker and three to support, prospects uncertain."
[21] The Applicant takes issue with the fact that the visa officer believed that the Applicant would have difficulties in transferring his skills to Canada because of the differences in the communist and free-market models of agriculture. According to the Applicant, the visa officer could not take these concerns into account without informing him and giving him an opportunity to respond.
[22] I believe the Applicant's contention is without merit. It is true that visa officers may have a duty to provide an opportunity to rebut specific concerns that might arise in the course of an interview (Nicolae v. Canada (Secretary of State), [1995] F.C.J. No. 244, November 14, 1994; Fong v. Canada (M.E.I.), (1990) 11 Imm. L.R. (2d) 205). But this is not true in every case. In Jiying Yin v. M.C.I. (IMM-4258-98, July 5, 1999 (F.C.T.D.)), in which concerns similar to those present in the case at bar were raised, I made the following comment:
"2. The duty of fairness
The applicant has worked for the same State employer for his entire career, and thus has never sought employment in an open economy. The visa officer felt it was important that he demonstrate motivation, initiative, adaptability and resourcefulness.
The applicant submits that the visa officer breached the duty of fairness by failing to provide the applicant with an opportunity to address the officer's concerns about his employment history. This was considered a negative factor by the officer which he had to overcome in his personal suitability assessment.
It is established that, in some circumstances, a visa officer may be obliged to apprise an applicant of a potential negative assessment, permitting him or her to clarify his or her position. However, a visa officer does not have a duty to inform an applicant of each negative impression as they arise, particularly when the negative impression concerns some aspect of the application which is not amenable to change.
In the present case, nothing the applicant could say would change the fact he has never changed jobs or sought employment in an open market. As well, as mentioned before, the applicant's professional history was not considered as a negative factor. For these reasons, this argument is unfounded, and the intervention of this Court is not justified." (See also: Savin v. M.C.I. (1995), 102 F.T.R. 67 (Cullen J.), in which the Court gave "personal suitability" and "language ability" as examples of aspects which are not amenable to change.)
[23] In addition to the above, I am satisfied that the visa officer was well within his rights to consider the transferability of the Applicant's work skills as relevant, I would note that this aspect of the application was merely one of the many elements that were taken into account for the general assessment on personal suitability.
[24] In his memorandum, the Applicant alleges that the visa officer improperly considered internal reports of the Embassy dealing with Moldovan agriculture without disclosing them to him. The Applicant's concerns arise out of the following passage of the visa officer's cross-examination:
"Q. Okay, but you're not really getting my question. In what way was this Applicant's experience deficient in such a way as it would give rise to a below average personal suitability score?
A. The Applicant in this case had worked entirely within the State controlled agricultural system in his country, which is structured upon the models, as Moldova was, as part of the U.S.S.R., and the agricultural system in that country has had little or no reform since the changes that occurred about ten (10) years ago.
Q. Can I as you what your source of information is on the Moldovan agricultural system?
A. I have lived in this region for two (2) years and .... (interrupted)
Q. This region being where, Mr. Brown?
A. Pardon me?
Q. This region being where?
A. This region of Rumania, Bulgaria and Moldova, Southeastern Europe.
Q. You've lived in Moldova?
A. No, I've lived in Bulgaria and Rumania.
Q. In Rumania. Okay, continue please.
A. I've lived in this region for over two (2) years and I read regularly newspapers, reports within the Embassy, other sources of information that explain the economic and social factors of the area."
[25] In my view, it is clear that the Applicant's argument in this respect is unfounded. It is obvious that the visa officer did not base his findings on specific Embassy documents, but merely relied on general information which he had previously been made aware of because of his experience. I believe that the visa officer could not, in those circumstances, be expected to point to specific documents since he relied on none.
[26] Considering the above, this application for judicial review is dismissed.
[27] At the outset of this hearing, counsel for the Applicant wished to raise further argument, that of "double-counting" which had not been previously raised in his written submissions. Counsel for the Respondent objected and correctly so.
[28] As Justice Décary wrote in Gurvinder Sandhu c. Le ministre de la Citoyenneté et de l'immigration du Canada, A-110-98:
"Par ailleurs, s'appuyant sur l'arrêt Baker c. Canada (Ministre de la Citoyenneté et de l'Immigration), [1999] R.S.C. 817, le procureur de l'appelant a voulu soulever, dans sa plaidoirie orale, des arguments qui n'apparaissaient pas dans son mémoire des faits et du droit et qui, par surcroît, ne concernaient pas la question certifiée.
L'arrêt Baker a sans doute élargi la portée de l'appel lorsqu'il y a question certifiée, mais sûrement pas au point d'écarter les règles élémentaires de la plaidoirie en appel qui veulent qu'un avocat ne peut soulever à l'audience des arguments qu'il n'avait pas soulevés dans son mémoire des faits et du droit."
[29] I agree with the objection raised by counsel for the Respondent and I will not elaborate on this submission.
JUDGE
OTTAWA, Ontario
May 16, 2001