Date: 20010126
Docket: IMM-2113-99
BETWEEN:
YI ZHOU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] This is an application under section18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 ("Act") for judicial review of the March 19, 1999 decision of visa officer Warren K. Apesland of the Canadian Consulate General at Los Angeles, refusing the applicant's application for permanent residence in Canada.
Background
[2] The applicant, a citizen of China now residing in the United States, applied for permanent residence in Canada in the Independent category. She asked to be assessed under the National Occupational Classification System as a microbiologist (NOC 22121.2), which includes the occupation of histologist.
[3] According to the documentation submitted with her application, she is a qualified and experienced histologist, who has worked as a research scientist in the fields of histology and embryology. At the time of her application, she had been appointed to the position of research fellow, without pay, at the University of Texas, Health Science Center in the Division of Oncology.
[4] Her application was refused because she obtained insufficient units of assessment to qualify for immigration to Canada. She received 66 out of the required 70 units of assessment.
[5] The visa officer awarded the applicant two units out of a possible fifteen for proficiency in English, having determined she had "difficulties reading and writing English". He awarded her four points out of a possible ten for personal suitability "because it is my opinion that you would encounter difficulties securing available employment in your discipline due to your limited language abilities...".
[6] The applicant raises two issues on this application for judicial review. The first concerns the fairness and adequacy of the language testing used by the visa officer. The second is whether the visa officer erred in law by "double counting" the applicant's weakness in language skills in his assessment of her personal suitability.
[7] The applicant states she was interviewed through a plate of clear plastic and that the microphone, which was necessary to communicate through the plastic, was malfunctioning. She states the alleged malfunction required the visa officer to ask her to repeat herself; the applicant says she also had to ask the visa officer to repeat his questions. While the applicant has sworn an affidavit to this effect, the visa officer has also sworn in his affidavit that he has no recollection of the alleged difficulties with the microphone; nor does he recall the applicant making any mention of difficulties during the interview. The record makes no mention of a malfunction.
[8] To test her English reading skill, the visa officer asked the applicant to read a passage from his Department's Visa Paper. The visa officer's affidavit states "... The Applicant mispronounced words, she could not pronounce other words at all and enunciation and syntax problems were noted...". The applicant admits to having had difficulty pronouncing unfamiliar words, but indicates she understood the content. The visa officer makes no mention of comprehension.
[9] To test her English writing skill level, the visa officer dictated a short paragraph to the applicant and asked her to write it down. The visa officer's affidavit states "... Upon a review of the applicant's written text, I noted that there were more than ten errors in the three sentences including spelling errors, punctuation errors, missing words and wrong words..." (Respondent Application Record at page 2, paragraph 7).
[10] The applicant submits the visa officer failed to give her an opportunity to demonstrate her true abilities in English, in accordance with the Ministry of Citizenship and Immigration Canada Language Assessment Guide. The applicant had indicated on her application that she reads, writes, and speaks English well.
[11] The Language Assessment Guide defines "Well" with regard to speaking, reading and writing as follows (Application record, exhibit "B" to the affidavit of Echo Hu, Tab 4):
| Skill/Level |
Speak |
Read |
Write |
| Well: |
The applicant is able to comprehend and to communicate effectively on a range of general topics |
The applicant is able to comprehend almost all documents of a general, non-abstract nature |
The applicant is able to write a basic report or summary relevant to their education, work, or social situation |
[12] The applicant argues that the writing test administered by the visa officer is not a test of "ability to communicate in writing in a social, educational or work situation" as described above, but of ability to transcribe. As such, it did not test adequately or fairly her ability to write English, as provided in the Language Assessment Guide, which, although it is not binding, must be intended to provide guidance for consistent evaluation of applicants. Similarly, the reading test did not test her comprehension.
[13] In ShanWang v. The Minister of Citizenship and Immigration [2000], F.C.J. No. 1554 Docket IMM-2904-99, where it was argued on a similar set of facts that the visa officer's manner of testing the applicant's reading and writing abilities were unreasonable, Sharlow J. stated at paragraph 12:
| The applicant's reading ability apparently was tested by having her read aloud the solemn declaration on the application form. It appears that she was not asked about her comprehension of the words she was asked to read. The applicant's writing ability was tested by requiring her to write something dictated by the visa officer. She was not asked to write anything that would have assisted the visa officer to determine whether she was able to communicate in written English. Based on the material in the record, I am unable to conclude that the visa officer's assessment of the applicant's English language ability was reasonable. |
[14] I am not persuaded that the tests as administered would render a meaningful indication of comprehension or the applicant's ability to "...write a basic report or summary relevant to ...education, work, or social experience". I also note that the errors in the applicant's transcription are not inconsistent with hearing difficulties.
[15] Even if this Court were persuaded of the efficacy of the visa officer's approach to assessing the applicant's English reading and writing skills, it is left without foundation for reviewing the reasonableness of the visa officer's assessment, given that neither the original passage the applicant was asked to read, nor the original passage she was asked to transcribe is included in the record.
[16] Without the document from which the visa officer dictated, it is impossible to determine if the original itself was free of error, let alone to assess the reasonableness of the visa officer's determination of the import of the applicant's deviations from this original.
[17] In the result, I am not persuaded that the visa officer fairly or effectively tested the applicant's English language skills, and this is leaving aside the question of whether or not there was a barrier to effective communication in the form of a malfunctioning microphone.
[18] Having so concluded, it is unnecessary to consider the applicant's second ground for judicial review.
[19] Accordingly, the application for judicial review is allowed, the decision dated March 19, 1999 is set aside and the matter is remitted back for reconsideration by a different visa officer.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
January 26, 2001