Date: 19980302
Docket: IMM-793-97
BETWEEN:
WEN HUA ZHOU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JOYAL, J.
[1] This is an application for judicial review of a decision by a Visa Officer (the "Officer"), dated January 11, 1997, which determined that the applicant did not meet the requirements for immigration to Canada in the Independent category.
The Facts:
[2] In April 1995, the applicant, a citizen of China, submitted an application for permanent residence in Canada in the Independent category. She is married and has a 15-year old son. She indicated in her application that she is a mental health social worker, specializing in substance abuse therapy. She is currently working at the Changsha Therapeutic Centre for Drug Addiction as an associate chief doctor and ward director.
[3] The applicant was interviewed by the Officer on December 12, 1996. She was later advised, on January 11, 1997, that she did not meet the requirements for immigration to Canada.
The Officer's Decision:
[4] The Officer noted that the applicant, contrary to what she claimed on her application, did not have sufficient language ability. During the interview, the Officer got the impression that she was reverting to a memorized speech when asked questions in English. The Officer's main concern, however, was the applicant's lack of training as a social worker. After the interview, the Officer was convinced that the applicant was not a social worker, but a recognized Chinese medical doctor.
Position of the Parties:
The Officer's Affidavit:
[5] The applicant submits that the Officer's affidavit is substantially hearsay. First of all, she questions whether the Officer has the necessary expertise to determine what the training requirements for a social worker might be. Secondly, she alleges that the capability of the Embassy's interpreter, as far as technical terminology is concerned, is questionable. And finally, she submits that the Officer's conclusions about her language ability are purely speculative.
[6] The respondent submits that the applicant failed to cross-examine the Officer and cannot challenge the veracity of her sworn statements. Also, the Officer had personal knowledge of the interpreter's competence and thus, her affidavit does not constitute hearsay.
The Applicant's Experience:
[7] According to the applicant, the Officer made an error of law and an unreasonable finding of fact when concluding that she had no experience as a social worker. The applicant compares the definition of a social worker's duties given in the Canadian Classification Dictionary of Occupations with her duties during her 14 years of experience as described in the affidavit. The applicant notes that the Officer did recognize that she had the necessary training for the intended occupation of social worker by giving her a score of 15 for Specific Vocation Preparation, but submits that some credit should have been given to her other experience.
[8] According to the respondent, the awarding of 0 points for experience is due to the fact that the applicant had no formal training as a social worker and therefore, none of the work she has done amounts to experience in that particular field. As for the 15 points for Specific Vocation Preparation, the respondent argues that the regulations provide that these points be linked to the intended occupation and not with the actual training of the applicant.
Breach of Fairness:
[9] The applicant claims that she was not given the opportunity to answer questions because of the Officer's attitude towards her English. She also alleges that the interpreter was unable to translate crucial technical terms.
[10] The respondent denies that the applicant was unable to make full representations at the interview. It is noted, in particular, that the applicant wrote a lengthy letter on her own behalf, which was received and fully considered by the Officer.
Personal Suitability:
[11] The applicant alleges that the Officer committed an error of law in failing to assess personal suitability. There is no evidence that an assessment of personal suitability was done by the Officer. Even her affidavit is silent about the applicant's personal suitability or about any of the criteria upon which such as assessment might be made. The applicant submits that the Officer discounted letters of reference simply because she believed they were from friends.
[12] The respondent submits that the applicant has not demonstrated that the Officer committed any error in arriving at her determination. The assessment is based on the applicant's adaptability, motivation, initiative and resourcefulness, as demonstrated in the interview. Moreover, the fact that letters of reference may have been discounted does not amount to ignoring the evidence.
Purpose of the Interview:
[13] The applicant submits that the Officer breached her duty of fairness when she misrepresented the purpose of the interview. According to the applicant, the interview should have addressed solely her professional capability and not her language ability. In this respect, she refers to Chen v. Canada (M.E.I.), 13 Imm.L.R. (2d) 172 (F.C.T.D.), where the Court found that an officer had breached his duty of fairness by failing to disclose the true purpose of an interview.
[14] The respondent submits that the applicant's allegation is without foundation. The applicant was administered reading and writing tests, which were properly explained to her.
The Applicant's Qualification as a Psychologist:
[15] The applicant alleges that the Officer made an erroneous finding of fact in concluding that she was not a qualified psychologist. Her work experience shows that she performed the duties of a psychologist for some 14 years. The Officer, according to the applicant, should have awarded her some points for her previous experience and responsibilities. The failure to do so is also a breach of the duty of fairness.
[16] In reply, the respondent indicates that the applicant was not applying for permanent residence as a psychologist, but as a social worker.
Language Ability:
[17] The applicant submits that the Officer committed an error of fact in concluding that she could not speak English. She claims that she was not allowed to express herself in English and was forced to use an interpreter during the interview.
[18] According to the respondent, the applicant did read and write well in English, but spoke it with difficulty. The answers she gave the Officer demonstrated a lack of comprehension of the English language.
Analysis:
[19] I have considered all of the several allegations submitted by the applicant. I have re-read the Applicant's Memorandum, containing some 95 paragraphs spread over 35 pages.
I have re-read as well the Visa Officer's affidavit, together with the guidelines applicable to the assessment process.
[20] There is no doubt that there are inherent risks in such an evaluation system. The process is a discretionary one, but if it leans too much towards an officer's own discretion, the process risks becoming one based on personal selection. Either way, suffice it to say that little ground is left which cannot be the subject of allegations and remedies.
[21] In the matter before me, some of the grievances raised by the applicant with respect to the disposition of her application are proper and legitimate. Others, to my mind, are spurious and have no foundation in fact. Indeed, some of the allegations are completely inappropriate.
[22] In dealing with the grievances which do have some degree of merit, I must decide if individually or collectively, they are of a nature to invite the Court's intervention by way of judicial review.
[23] In my view, the grievances herein do not have sufficient substance to warrant my interfering with the decision. Admittedly, the process of selection can be very stressful and disappointing. A Court, at times, may be tempted to grant relief, but it must not yield too readily to that kind of temptation. With all due respect, the case for the applicant, though framed in particularly cogent and detailed terms, is not sufficient to swing the balance in her favour. That is to say that whatever errors may be attributable to the Officer's disposition of the case, these do not carry enough weight to undermine the essential validity of the decision.
Conclusion:
[24] The application for judicial review is accordingly dismissed.
L-Marcel Joyal
J U D G E
O T T A W A, Ontario
March 2, 1998.