Date: 20010420
Docket: IMM-2217-00
Neutral Citation: 2001 FCT 343
Between:
SHAH, Syed Dilawar Mohammed
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION c/o Department of Justice,
Complexe Guy-Favreau, 200 René-Lévesque west,
East Tower, 5th Floor, Montreal (Quebec) H2Z 1X4
Respondent
REASONS FOR ORDER
PINARD, J.:
[1] This is an application for judicial review with respect to the decision of visa officer Judyanna S.H. Ng, of the Canadian Consulate General in Hong Kong, dated March 30, 2000, refusing the applicant's application for permanent residence in Canada.
[2] The applicant, a citizen of Pakistan, has submitted an application for permanent residence in Canada under the Assisted Relatives category, governed by subsection 8(1) of the Immigration Regulations, 1978, SOR/78-172, as amended (hereinafter the "Regulations"). The applicant and his spouse were interviewed in Hong Kong on March 30, 2000.
[3] The applicant received insufficient units of assessment for immigration to Canada. The visa officer awarded the following units of assessment in the occupation of Contractor and Supervisor, Mechanic Trades, NOC 7216.0:
Age 10
Occupational Factor 03
Education/Training Factor 15
Experience 06
Arranged Employment 00
Demographic Factor 08
Education 10
English 02
French 00
Bonus 05
Personal Suitability 05
Total 64
[4] In her letter of refusal, the visa officer further specified:
In order to be selected as an Assisted Relative, you must earn 65 units of assessment. This figure has been reduced from the usual level of 70 in your case to reflect a 5 unit bonus for Assisted Relatives. Nonetheless, you have failed to earn more than the minimum required number of units of assessment.
[5] The applicant contests the award of 2 units for the English language component and 5 units for the personal suitability component.
[6] The applicant submits that the visa officer erred in finding that his English proficiency was "good" rather than "fluent". The applicant claims that English is his primary language, that he studied in English from age 6 to 13 and that during this time, he lived in an English-speaking country - Tanzania. He claims that English is his main language of communication with family and friends, and that English was the predominant language in both his education and his 12 years of work experience. In any event, he states that under Factor 8 of Schedule I of the Regulations, he should have been awarded at least 4 points. The applicant also submits that there is no evidence that the visa officer was adequately competent in English or that she had proper training in language proficiency evaluation, or that the test was reliable. It is not the visa officer's evaluation which is flawed, but the method of testing itself.
[7] The applicant submits that, in her evaluation of the applicant's personal suitability, the visa officer erred in faulting him for never having visited Canada. He submits that it was equally irrelevant that his work experience was limited to his own country. The applicant finally submits that at the time of the interview he was perturbed by his wife's illness and that it would be in the interest of justice to order a new assessment.
[8] At the outset, I must remind the applicant that this Court has repeatedly stated that a visa officer is in the best position to assess an applicant's qualifications and abilities. These are factual findings which this Court will not disturb unless it is demonstrated that the statutory discretion has been exercised in bad faith, in violation of the principles of natural justice, or where reliance has been placed upon irrelevant or extraneous considerations (see Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 1, at pages 7 to 8, as cited by the Federal Court of Appeal in Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93). The applicant has not succeeded in establishing any of these circumstances with respect to the visa officer's language assessment. As for the applicant's previous experience with the English language in the context of social, educational and professional pursuits, I must concede that this means relatively little when contradicted by the officer's personal observations (Bhatia v. Minister of Citizenship and Immigration (October 16, 1996), IMM-343-96). Again, the visa officer is the best placed to observe the applicant's abilities and great deference must be given to such determinations.
[9] Concerning the method of testing, as the applicant has not submitted any evidence with respect to the visa officer's qualifications or language abilities, this part of his argument cannot stand. Further, I cannot agree that the test itself is unreliable. I repeat that language assessments, among others, are central to the statutory mandate and expertise of a visa officer. In light of its nature, such an assessment could never be purely "objective and scientific" as suggested by the applicant.
[10] As for the applicant's argument that the visa officer's assessment of his English language capabilities was contrary to Factor 8 of Schedule I of the Regulations, it must be set aside. The provision reads as follows:
8. Knowledge of (1) For the first official language, whether English or French, as
English and stated by the person, credits shall be awarded according to the
French Lan- level of proficiency in each of the following abilities, namely,
guages speaking, reading and writing, as follows:
(. . .)
(b) for an ability to speak, read or write well but not fluently, two credits shall be awarded for each ability; and
(c) for an ability to speak, read or write with difficulty, no credits shall be awarded for that ability.
(. . .)
(3) Units of assessment shall be awarded on the basis of the total number of credits awarded under subsections (1) and (2) as follows:
(. . .)
(b) for two to five credits, two units; . . .
8. Connaissance (1) Pour la langue que la personne indique comme sa première
du français et de langue officielle, le français ou l'anglais, selon son niveau de
l'anglais compétence à l'égard de chacune des capacités suivantes : l'expression orale, la lecture et l'écriture, des crédits sont attribués de la façon suivante :
(. . .)
b) la capacité de parler, de lire ou d'écrire correctement mais pas couramment, deux crédits sont attribués pour chaque capacité;
c) la capacité de parler, de lire ou d'écrire difficilement, aucun crédit n'est attribué pour cette capacité;
(. . .)
(3) Des points d'appréciation sont attribués sur la base du nombre total de crédits obtenus selon les paragraphes (1) et (2), d'après le barème suivant :
(. . .)
b) de deux à cinq crédits, deux points;
[11] I am of the opinion that the applicant misconstrued the Regulations in relying only on subsection 8(1) of the above provision. Upon reading subsection 8(3) it becomes clear that if the total number of credits awarded under subsections (1) and (2) are between 2 and 5, only 2 units of assessment shall be awarded.
[12] In her Computer Assisted Immigration Processing System (CAIPS) notes, the visa officer made the following observations with respect to the applicant's English language abilities:
PI SPEAKS ENGLISH WELL, NOT FLUENTLY AS INDICATED ON IMMS. PI ABLE TO COMPREHEND AND RESPOND TO QUESTIONS REGARDING WORK. HOWEVER DOES NOT SPEAK AND UNDERSTAND WITH EASE OF ARTICULATE NATIVE SPEAKER.
WRITING TESTED. PI WRITES WELL, NOT FLUENTLY AS INDICATED ON IMMS. TEST ON FILE. 5 MINUTES, ABLE TO WRITE AT BASIC LEVEL. SAMPLE DOES NOT REFLECT PROFICIENCY.
READING TESTED, TEST ON FILE. 5 MINUTES DURATION. READS WITH DIFFICULTY. PI IS UNABLE TO DEMONSTRATE COMPREHENSION OF TEXT. SHOWS MINIMAL UNDERSTANDING OF THE TEXT.
[13] Upon reading the above provision in its entirety, as well as the visa officer's observations, it is clear that she did in fact respect the Regulations in awarding only two units of assessment.
[14] In my opinion, the visa officer's conclusion with respect to the applicant's English abilities has a strong evidentiary basis and there is no evidence on the record that it was based on irrelevant considerations or made in an arbitrary or capricious manner.
[15] The applicant's argument that the visa officer considered irrelevant factors in assessing his personal suitability must be considered in the light of the relevant portion of Schedule I of the Regulations, which reads as follows:
9. Personal Units of assessment shall be awarded on the basis of an interview
Suitability 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.
9. Personnalité Des points d'appréciation sont attribués au requérant au cours d'une entrevue qui permettra de déterminer si lui et les personnes à sa charge sont en mesure de réussir leur installation au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et autres qualités semblables.
[16] Contrary to the applicant's submission, I believe that the visa officer's central consideration in assessing the applicant's personal suitability was his lack of resourcefulness and his failure to learn more about Canada. In my view, the visa officer's remarks concerning the fact that he had never been to Canada, which in itself is not an irrelevant fact, were made only in the context of his adaptability in Canada, i.e. whether he had the interest or motivation to learn more about the country and the job market in Canada. This conclusion stems from the visa officer's CAIPS notes, which read as follows:
PI DOES NOT APPEAR TO BE VERY RESOURCEFUL. HE HAS NEVER BEEN TO CDA OR OTHER COUNTRIES. PI HAS LITTLE IDEA ABOUT CDA, CLAIMS HE LEARNED BRIEF INFO ABOUT CDA FROM HIS SISTER AND HAS DONE SOME JOB SEARCH THRU INTERNET. PI HAS NO DEFINITE PLAN RE HOW TO SEEK INTENDED OCCUP IN CDA. PI S ADAPTABILITY IN QUESTION SINCE HE HAS LITTLE IDEA FOR HIS INTENDED DESTINATION, HIS WORK EXP ONLY LIMITED IN HIS OWN COUNTRY.
POINTS ACCURATELY REFLECT SETTLEMENT. . . .
[17] Finally, with respect to the applicant's wife's illness, as the latter did not bring this factor to the visa officer's attention, he cannot now be allowed to use it to challenge her decision.
[18] For the foregoing reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
April 20, 2001