Date: 20000619
Docket: IMM-2753-99
BETWEEN:
MEI-HING YUNG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to the judicial review of a visa officer's decision, dated April 13, 1999, refusing the applicant's application for permanent residence in Canada. This was a second application by the applicant within a relatively short period of time. The earlier application had been denied by a refusal letter dated March 5, 1997, which letter was not sent to the applicant until June of that year.
[2] There is some dispute as to communications that occurred between the applicant's immigration consultant and the relevant Immigration Program Manager in the March-June 1997 period. I do not find it necessary to refer to this, since even if the program manager made the commitments that are alleged, those commitments would not be enforceable. The program manager would have been making commitments that were outside the scope of his authority.
[3] The applicant's two applications were processed through the Los Angles visa office, but the two assessments of the applicant were done by different visa officers. The first was done by Mr. Bokhaut on February 12, 1997; the second was done by Ms. Dennis on April 9, 1999.
[4] In the first assessment, the applicant was awarded 6 points for her English language ability; 6 points for the experience she had in her occupation (hairdresser), and 6 points for her personal suitability as a potential immigrant. In the second assessment, she was awarded 0 points for her English language ability; 0 points for the experience she had in her occupation; and 2 points for her personal suitability as a potential immigrant. These differences in the evaluation of the same person within a relatively short time frame, by different officers is disturbing,
[5] I will describe the circumstances relevant to the two language assessments. During the interview with Mr. Bokhaut, the applicant had no interpreter with her. She spoke English to the visa officer and was understood. Mr. Bokhaut took information from her, wrote his CAIPs notes, and prepared his assessment.
[6] The applicant's immigration consultant suggested to Mr. Rankin (the program manager) that the applicant might have been able to explain her financial situation, her occupational experience and her business plans more completely, had she had an interpreter with her. There appears to have been an agreement that the applicant would make a new application and bring an interpreter with her (there was a commitment by the program manager to review any new documentation that was provided).
[7] In any event, the applicant made a fresh application, and took an interpreter with her to the second interview. Ms. Dennis's CAIPs notes record that when she explained the legislative definition of a self-employed person to the applicant, the applicant did not understand. The visa officer had the interpreter explain.
[8] The applicant was then asked to read a text dealing with "medical licensure" and she had difficulty. The visa officer's CAIPS notes read:
| ... SEVERAL TIMES DURING THE TEXT SHE ADMITTED THAT SHE DOES NOT KNOW THIS WORD AND ON SEVERAL ATTEMPTS SHE WOULD STILL MISPRONOUNCE WORDS. WHEN I ASKED HE [SIC] TO TELL ME ABOUT THE TEXT AFTER SHE READ THE TEXT, SHE WAS UNABLE TO TELL ME ANYTHING ABOUT THE PARAGRAPH. WRITING: READ SECTION 22A ALOUD SO SHE COULD WRITE. SUBJ IS UNABLE TO WRITE THE FIRST SENTENCE. WRITING WITH GREAT DIFFICULTY. BASED ON THIS TEST, I SUGGESTED TO APPLICANT THAT THE INTERPRETER SHOULD BE UTILIZED AS MUCH AS POSSIBLE SO SHE FULLY UNDERSTANDS MY QUESTIONS. ... |
[9] There may have been an over hasty assumption by the visa officer that because the applicant had an interpreter with her, she had almost no facility in English, or the visa officer may simply have had less patience with an applicant whose English is less than perfect than did Mr. Bokhaut. I do question the appropriateness of giving a hairdresser a text on "medical licensure" to test her reading ability (I confess to not having been aware that "licensure" was a proper English word). I question, also, the appropriateness of giving legal texts or definitions to applicants to test their comprehension or writing abilities. These are often difficult to comprehend even for native speakers.
[10] At the same time, one can speculate that the difference may have arisen, not only because a different visa officer was doing the evaluation, but also because the applicant may have performed differently. It is possible that since the applicant had an interpreter with her, she relied more on that person than she otherwise would have done. It is possible that on the second occasion she had not had the same opportunity to speak English with others immediately before the interview (i.e., to prepare for the interview) as she had had on the first occasion.
[11] With respect to the 0 points awarded to the applicant for experience, the visa officer appears to have erred. She assessed the applicant's experience in operating a business, rather than her experience in her occupation of hairdresser. I did not understand there to be any dispute that there was an error.
[12] Insofar as the different assessments on personal suitability, the visa officer explained that her assessment was based on the fact that the applicant had not shown motivation or resourcefulness because she had not taken steps to improve her English between the two interviews, nor had she brought additional documentation to support her plans to be a self-employed hairdresser in Canada.
[13] Counsel for the applicant argues, first, that the language requirement is a variable one, and the language skill required of a hairdresser is not the same as that required of a person in another occupation. Counsel for the applicant also argues that, in any event, res judicata (or issue estoppel) applies so that the points awarded to the applicant for language ability, occupational experience and personal suitability must be adopted for the purposes of the second assessment.
[14] I turn first to the submissions respecting the assessment of a prospective immigrant's language abilities. I am not persuaded that the assessment of language abilities should proceed by reference to a variable standard. The wording of factor 8 of the Immigration Regulations and the jurisprudence indicates otherwise. There is reason to conclude that language assessments are to be approached from one common standard, not dependent on either the category of application or the intended occupation of a prospective immigrant.
[15] The decision in Alakkad v. Canada (M.C.I.) (1996), 121 F.T.R. 34, suggests that one standard of linguistic ability applies. In that case, the Court did not consider the standard for language ability in the context of different occupation, but considered whether an inference could be drawn, that when assessing a language as a "second" language that the standard should be somewhat relaxed. The Court held that no such inference could be drawn, that the Immigration Regulations make it clear that the assessment standards are identical.
[16] While the Alakkad decision does not deal directly with the point in issue in this case, a non-variable standard appears to me to be more in keeping with the purpose and the text of the legislation. The language assessment is not specifically related to a person's intended profession but to their ability to integrate into a society in which governments communicate with residents in one of the two official languages (French or English).
[17] I turn then to the submissions respecting the applicability of res judicata. There are two decisions that are particularly relevant to the issue: Kaloti v. Canada (M.C.I.) (1998), 49 Imm.L.R. (2d) 185, aff'd A-526-98, March 13, 2000 (F.C.A.) and O'Brien v. Canada (Attorney General) (1993), 153 N.R. 313. The Kaloti decision determined that res judicata applied to an application to sponsor a spouse as a family class member, because the spouse's intention at the time of the marriage had been determined in the first proceeding and was not a matter that could change with changed circumstances.
[18] Mr. Justice Dubé wrote:
| ... I must find that, generally, res judicata has an application in public law. Otherwise, applicants could re-apply ad infinitum and ad nauseam with the same application, an abuse of the process of administrative tribunals. However, that would not prevent an applicant from launching a second application based on change of circumstances provided, of course, that the change of circumstances was relevant to the matter to be decided. |
. . .
[19] In the O'Brien decision, counsel for both parties agreed that issue estoppel applied to decisions of the Public Service Commission Appeal Board. The Court approved the reasoning of Mr. Justice Muldoon in Canada (Attorney General) v. Canadian Human Rights Commission et al. (1991), 43 F.T.R. 47 (F.C.T.D.), at pages 65-66:
| ... There appears to be no sound policy reason for declining to apply this estoppel principle to the decisions of adjudicative boards, commissions and other tribunals insofar as their pronouncements to in fact determine at least nominally contentious issues inter partes, in the same way as courts do. |
| . . . |
| The underlying notion of issue estoppel is to prohibit one party to previous litigation from putting a concluded issue finally determined therein, into contention again in newly instituted proceedings taken against the same opponent before the same, or another, tribunal having jurisdiction to adjudicate and determine that issue anew. |
| . . . |
[20] The assessments of the applicant that Ms. Dennis undertook as a visa officer were assessments that could be affected by changed circumstances. They were not "nominally contentious issues inter partes" that had previously been decided. The assessments were required as the result of a new application by the applicant, an application governed by section 9(2) of the Immigration Act and section 8(1)(b) of the Immigration Regulations.
[21] Accordingly, I am not persuaded that issue estoppel applies.
[22] Whatever may be the errors or inconsistencies in the assessments of the applicant's language ability, occupational experience and personal suitability, quashing the decision under review and sending the matter back for reconsideration would be pointless unless there are reviewable errors in the visa officer's decision that the applicant did not meet the definition of a "self-employed" immigrant, that is, that she did not demonstrate that she "intends and has ability to establish or purchase a [hairdressing] business in Canada that will create an employment opportunity for [her]self and will make a significant contribution to the economy or the cultural or artistic life of Canada."
[23] Counsel for the applicant argues that the visa officer based her decision on three erroneous assumptions and, therefore, that decision should be set aside: (1) she assumed that past experience operating a business was required in order to qualify an applicant as a self-employed immigrant; (2) she assumed that in order to be approved as a self-employed immigrant, the individual must be prepared to commence operation of the business, or self-employment, immediately on gaining admission to Canada; (3) she did not understand that a hairdresser who rents a station in a salon can be self-employed.
[24] While it is appropriate for a visa officer to consider the applicant's previous past experience in operating a business, a visa officer errs if undue emphasis is placed on the applicant's lack of past experience. (See, Grube v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm.L.R. (2d) 219; Du v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm.L.R. (2d) 101.) Likewise, it is an error to require an applicant to be prepared to commence operation of a business or self-employment immediately upon arrival in Canada. (See, Margarosyan v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm.L.R. (2d) 53.)
[25] After a careful reading of the CAIPs notes, the decision itself, and the cross-examination of the visa officer on her affidavit, I cannot conclude that the visa officer's decision was based on the errors alleged.
[26] The CAIPS notes read:
| DO YOU HAVE ANY BUSINESS PLANS IN CDA? YES I THINK I WILL GO INTO BUSINESS WITH SOMEONE. DO YOU HAVE EVIDENCE OF THIS? NO I DID NOT BRING. HOW DO YOU PLAN TO CREATE BUSINESS FOR YOURSELF? MAINLY MY CLIENTS IN HK HAVE MOVED TO CDA SO I WILL CONTACT MY OLD CLIENTS. DO YOU HAVE EVIDENCE OF YOUR OWN CLIENTS? NO, I DO NOT. WHERE ARE YOUR OLD CLIENTS AT IN CDA? I WILL CONTACT THEM ONCE IN CDA. BUT AS I MENTIONED, I WILL GO TO CDA TO GO INTO BUSINESS WITH A PERSON. WHO IS THIS PERSON AND HOW DID YOU MEET THEM [SIC]? ONE OF MY COLLEAGUES IN HK FROM WAY BACK, AND I HEARD THAT HE JUST IMMIGRATED TO CDA. WE WILL GIVE HAIR STYLIST AND WIG SERVICES TO CDA. HAVE YOU SIGNED BUSINESS CONTRACTS WITH HIM? NO I DO NOT, I WILL RENT A STATION FROM HIM AT THE SALON HE OWNS AND HE HAS GOOD CLIENTELE SO I WILL INVEST $40,000 IN BUSINESS TO EXPAND THE CLIENTELE. SUBJ IS MAKING SEVERAL CLAIMS BUT NO EVIDENCE TO SUPPORT ANY OF HER CLAIMS. SHE HAS NOT PROVIDED ANY NEW DOCUMENTATION. SUBJ HAS NOT PROVIDED ANY EVIDENCE IN SUPPORT OF ALL OF HER CLAIMS. SHE HAS NOT PROVIDED EVIDENCE OF THER [SIC] CLIENTELE IN HONG KONG. SHE HAS NOT PROVIDED ANY EVIDENCE TO SUPPORT HER BUSINESS IN CDA. |
[27] The decision reads:
| . . . |
| During the interview I asked you several questions relating to your ability to become self-employed in Canada. You did not demonstrate the ability to set up a business or the ability to run the business. I asked you during the interview to describe your business plans and the requirements to set up the business. You indicated verbally that you would go into business and be employed by a hair salon that already exists but you did not provide documentation or details on the business. Nor did you explain during the interview your ability to run or operate the business as a self-employed person, you were only able to describe that you had the tools necessary such as dyes and scissors, as well as old clients from Hong Kong that have moved to Canada. I asked if you had contacted any of your old clients who now live in Canada or if you had information on where they were in Canada. You stated that you would contact them once you were in Canada. In order to assess your past business experience I asked you to provide evidence that you currently have or in the past had your own clientele as a hair stylist. You did not provide verifiable evidence of past clientele and were only able to provide letters of reference which state you were an employee of several hair salons as a hair stylist. Moreover, since your last immigrant visa application, you have not provided new verifiable evidence to satisfy me that you have the ability to become self-employed in Canada. I am not satisfied that the services you provided are sufficient to avail you the abilities required to be a self-employed hair dresser. You received the following assessment: |
| . . . |
[28] A reading of the above described documents leads me to conclude that the visa officer considered the nature of the applicant's business in Hong Kong as relevant to the issue of her ability to establish a hairdressing business in Canada. I cannot conclude that she found it essential that that business had to have been one of self-employment. She did err in saying that the letters of reference state that the applicant was an employee of several hair salons. One of the letters, at least, refers to a rental arrangement with the store owner. The visa officer's questioning discloses that she was seeking further information and details about that business (e.g., a clientele list), as verification that the applicant's business was as she had asserted it to be, not because the visa officer thought that a person had to be self-employed in the country from which he or she was emigrating in order to be accepted as a self-employed immigrant to Canada.
[29] Also, I cannot conclude that the visa officer assumed that the applicant had to establish her Canadian business immediately upon arrival. She was concerned, however, that the applicant's plans were not specific enough to convince her that the applicant had the ability and intention to establish in Canada. The CAIPs notes read:
| I DO NOT BELIEVE SUBJ MEETS THE DEFINITION OF SELF-EMPLOYED. SUBJ HAS NOT/NOT PROVIDED ANY DOCUMENTATION TO PROVE THAT SHE HAS AND/OR HAD HER OWN PERSONNEL LIST OF CLIENTELE. SHE HAS NOT PROVIDED DOCUMENTATION TO SUPPORT HER CLAIMS OF WHAT SHE INTENDS TO DO IN CDA AND SUBJ HAS HAD THE PAST 2 YRS TO COMPILE THIS INFORMATION SINCE LAST IMMIGRANT APPLICATION WHICH WAS FINALIZED 03/97. SUBJ HAS NOT MET THE DEFINITION OF SELF-EMPLOYED, HAS NOT SHOWN ANY INITIATIVE, RESOURCEFULNESS, MOTIVATION ETC SINCE SHE HAS NOT PREPARED ANY SORT OF BUSINESS DOCUMENTATION TO PROVE THAT SHE MEETS THE DEFINITION OF SELF EMPLOYED. THIS IS A NEW APPLICATION BUT FACTS OF THIS CASE AND SUBJECTS DOCUMENTATION HAVE NOT/NOT CHANGED SINCE DATE OF LAST FD. |
[30] I turn then to the third allegation, that the visa officer did not think that a hairdresser who rents a station in a salon is self-employed. When asked about her personal experience and knowledge, the visa officer explained that she knew a hairdresser who rented a station from a salon, but was not self-employed because she received benefits from the salon owner. I cannot conclude that because the visa officer did not have experience with hairdressers who rent stations being self-employed, that she was of the opinion that this could never occur.
[31] The portion of the transcript on which the applicant relies for the assertion that this visa officer thought that a hairdresser could never be self-employed reads:
. . .
| 39. Q. Do you consider a person, a hairdresser who is renting a station to be self-employed? |
| A. Well, I think in this sense I use the definition for self-employed as is stated in the Act. |
| 40. Q. Would you consider a person who is renting a station to be self-employed as defined by the Act, actually by the Regulations? |
| A. No. |
| 41. Q. Why not? |
| A. The Act indicates that a self-employed person is an immigrant who ... has the ability to establish or purchase a business in Canada, creates employment opportunities for himself, and makes a significant contribution to the economy or the cultural or artistic life of Canada. I don't consider a self-employed person a hairdresser. |
| 42. Q. So that in your view -- |
| A. For instance, in this case, in front of us, I did not see that she had the ability or that she had intentions to establish a business. [Underlining added.] |
[32] However, a later exchange with counsel indicates that the visa officer did appear to be confused when she responded "No" to question 40, above.
| 48. Q. ... Within the definition of self-employed as found in the Immigration Regulations, do you believe that a hairdresser can meet that definition for being self-employed? |
| A. You mean any hairdresser or this particular applicant? |
| 49. Q. You earlier said that a hairdresser cannot meet the definition. |
| A. No, I don't believe I said that. |
| 50. Q. Well, you actually did. Then you went on to say -- |
| A. I believe you asked me if you thought my friend was self-employed. |
| 51. Q. Well, I asked you that, but then I also asked you -- |
| Do you have that on your screen? Can you go back and find that? |
| THE COURT REPORTER: "Question: Would you consider a person who is meeting a |
| station to be self-employed as defined by the Act, actually the Regulations? |
| "Answer: No. |
| "Question: Why not? |
| "Answer: The Act indicates that a self-employed person is an immigrant who intends, who has the ability to establish or purchase a business in Canada creates some employment opportunities for himself, and makes a significant contribution to the economy or the cultural or artistic life of Canada. I don't consider a self-employed person a hairdresser." |
| BY MR. LEAHY: |
| * * * |
| 57. Q. Why do you believe a hairdresser cannot meet the definition of self-employed as found in the Act or the Regulations? |
| A. An applicant meets the definition of self-employed as described in the Act. |
| 58. Q. No, a hairdresser. Can a hairdresser be self-employed as defined by the Immigration Regulations? |
| A. If she meets the requirements, yes. He or she meets the requirements. [Underlining added.] |
[33] There is confusion in the cross-examination in the use of the term "self-employed". At times the visa officer responded to questions about a "self-employed" immigrant by using "self-employed", as defined in the Immigration Act, to include the making of a "significant contribution to the economy ... of Canada." At other times the term was being used in the more usual sense, to describe the business arrangements under which a person earns income.
[34] The tone of the visa officer's CAIPs notes, decision, affidavit and cross-examination is not that a hairdresser can never be a self-employed immigrant. The cross-examination indicates that the visa officer was of the opinion that the applicant had not provided sufficient documentary evidence to support her claim that this was the arrangement under which she had worked in Hong Kong and no documentary evidence to support her claim that it would be the arrangement under which she would work in Canada. It was not unreasonable for the visa officer to have expected some more concrete evidence concerning the applicant's future plans.
[35] For the reasons given, this application will be dismissed.
Judge
OTTAWA, ONTARIO
June 19, 2000