Federal Court Decisions

Date: 20050615

Docket: IMM-8567-04

Citation: 2005 FC 853

Ottawa, Ontario, this 15th day of June, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

MANDEEP KAUR JHATTU

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]     This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (AIRPA@) for judicial review of the August 11, 2004 decision of a visa officer (the Aofficer@), wherein the applicant's application for a work permit as a live-in caregiver was refused.

[2]    The applicant requests that the officer's decision be set aside, and the matter be referred back for redetermination by another officer.

Background

[3]    The applicant, Mandeep Kaur Jhattu (the "applicant"), is a citizen of India. She first submitted an application for a work permit as a live-in caregiver pursuant to subsection 112(d) ("subsection 112(d)") of the Immigration and Refugee Protection Regulations SOR/2002-227 (the "Regulations") in June 2003. The application was initially denied in September 2003 on the basis that her future employer "was unable to demonstrate sufficient financial ability to engage a full-time employee."

[4]    The applicant then filed an application for leave and for judicial review in which leave was granted. The judicial review was later discontinued as the parties agreed that the application would be considered anew by another visa officer.

[5]    The applicant received a letter from the Canadian High Commission on or about July 22, 2004, advising her that she was to attend an interview and to bring all relevant documents with her.

[6]    The applicant was interviewed in New Delhi, India on August 11, 2004. Her application was refused based upon the officer's determination that the applicant did not meet the language ability requirements for a work permit.

[7]    This is the judicial review of that decision.

The Officer's Decision

[8]    By both letter dated August 11, 2004, and verbally at the end of the interview, the officer advised the applicant that her request for a work permit was denied as she "did not have the ability to speak, read and listen in English or French at a level sufficient to communicate effectively in an unsupervised situation."

[9]    The CAIPS notes stated as follows:

Applicant interviewed this date.

Introduced myself to the applicant, explained to her the purpose of the interview (to                         determine if she meets the requirements of the live-in caregiver program), and asked if                        there were any problems with comprehension, the applicant indicated that there were                             not. Applicant was told that if at any point she did not understand what I was saying,                                 that she should inform me so that I could repeat the question. The applicant stated that                               she understood.

The applicant was asked several basic questions relating to herself, and her current                                    situation in India (eg. her age, name/occupation of parents, name/number of siblings).                             The applicant asked me to repeat at minimum three times each question as she could                                 not understand.

Example of type of questions asked: What are your parents' names? When did you                             complete your 10+2? How old is your brother?

The applicant was only able to answer the questions if I spoke extremely slowly, and                               repeated key words several times.

Explained to the applicant the english requirement for the LCP, and informed her that                              if she did not satisfy me that she met this requirement, that I would be refusing her                                      application. The applicant was nodding her head, saying "yes sir" the entire time I                                   was explaining. Following my explanation, I asked the applicant if she had                                                         understood. She said yes sir. I then asked the applicant to explain to me what I had                  just said. The applicant said 'yes sir'.

RAS called in to interpret. Explained to applicant that I would be continuing the                                             interview with the aid of an interpreter, that if she did not understand the question,                         that the interpreter would repeat the question in Hindi, and that whenever possible,                                     that she (the applicant) should respond in english. The applicant immediately looked                               to the interpreter and asked what I had said (Hindi). I then repeated myself with the                                     aid of the interpreter. The applicant stated that she understood and when asked said                        there were no problems with comprehension between herself and RAS.

I then asked the applicant how she had found her current job in India. I repeated the                                question once, and the applicant asked the interpreter what I had asked. The applicant                               then responded in English "friend say me". I asked if she meant a friend had told her                                  about the job with Dr. Gill, and after translation, she said yes.

The remainder of the interview was conducted in Hindi, with my repeating to the                                                  applicant on several occasions that if she could answer in English, that she should do              so.

The applicant was able to satisfy me that she has the work experience claimed in her                                 application. She was able to describe in detail all her job responsibilities, and was                                able to do so in a clear and consistent manner.

While I am satisfied that the applicant meets the requirements of R112(a),(b), and                                (c)(ii), I was not satisfied the applicant had the ability to speak, read, or listen in                                               English at a level sufficient to communicate effectively in an unsupervised setting.                The applicant was explained this once again and asked if she had anything she wished                               to say in response. She did not.

The applicant was refused at interview. Ppt and refusal letter given at interview.

Issues

[10]                        The issues as framed by the applicant are:

1.         Did the officer err in law in reaching the decision in this case, in particular, with his conclusion that the applicant was unable to speak, read and listen to English or French at a level sufficient to communicate effectively in an unsupervised setting?

2.         Did the officer err by ignoring portions of the evidence? Did the officer base his decision on irrelevant considerations or on erroneous findings of fact that he made in a perverse or capricious manner or without regard to the material presented before him?

3.          Did the officer err by failing to have regard to the totality of the evidence properly before him? Did the officer fail to give reasons for rejecting significant documentary evidence put forwarded by the applicant?

4.         Did the officer breach his duty of fairness in making a negative decision without first providing the applicant an opportunity to respond to any concerns he may have had?

[11]                        The issue as framed by the respondent is:

Did the officer make a reviewable error on any of the statutory grounds listed in subsection 18.1(4) of the Federal Courts Act, R.S.C., 1985 c.F-7?

Applicant's Submissions

[12]                        Standard of Review

The applicant submitted that as an officer's decision to refuse to issue a work permit to Canada as a live-in caregiver is a question of mixed fact and law, it is reviewable on a standard of reasonableness simpliciter (see Ram v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 855).

[13]                        The applicant submitted that the officer erred in concluding that the applicant did not have the ability to speak, read and listen to English at a level sufficient to communicate effectively in an unsupervised situation. The applicant submitted that IRPA and the Regulations do not define what language level would be sufficient for the purposes of subsection 112(d) of the Regulations.

[14]                        The applicant submitted that the only case on point, Giaccia v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 186, was decided under the former Immigration Act and Regulations. The sole issue in that case was whether the officer properly refused the applicant's application that on the basis that "she did not speak, read or understand the English language at a level sufficient to communicate in an unsupervised setting as required by subsection 20(1.1) of the Immigration Act Regulations, 1978." The Court held that there had been a denial of natural justice because the speakers worked intermittently and because the applicant did not hear the questions that the officer asked.

[15]                        The applicant submitted that the officer failed to follow the guidelines set out in Immigration Manual OP 14 when assessing the applicant and did not provide a reasonable analysis that could substantiate his finding that the applicant's language ability was deficient. The applicant further submitted that Immigration Manual OP 14 provides some guidance for an officer assessing the language ability of an applicant applying under the caregiver program. The tasks listed therein do not require a stringent standard of language ability. The applicant demonstrated her ability to accomplish the required tasks.

[16]                        The applicant submitted that she demonstrated sufficient language ability and was able to communicate with the officer for over 20 minutes with no one else in the interview room. Though the CAIPS notes indicated that the officer "explained to the applicant the English requirement for the LCP"; the officer did not articulate what the English requirement might be. He did not provide any standard that the applicant must meet, nor do the notes indicate he assessed the applicant against a particular English requirement.

[17]                        The applicant submitted that the CAIPS notes showed that she responded only in English to the questions she was asked. The notes also show she was able to, for example, explain and detail her responsibilities in a clear and consistent manner. The officer did not look at the documents the applicant had with her at the interview. The applicant had provided copies of her matriculation and senior secondary marks showing that she passed English. She also provided a letter from Times Academy proving that she had completed basic and advanced understanding and communication in the English language.

[18]                        The applicant submitted that the officer failed to ask her any questions to determine if she could read in English, nor was she provided with a written test. The officer erred in finding that the applicant could not read English as required. The CAIPS notes disclose that he did not assess the applicant's reading skills at all. In Mascarenas v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 737, Gibson J. found that a visa officer's decision to reject an application under the live-in caregiver class was unsatisfactory because the officer failed to conduct a qualitative analysis of the applicant's education. Similarly here, the officer failed to perform any qualitative analysis to assess the applicant's language ability according to the requirements set out in subsection 112(d).

[19]                        The applicant submitted that the officer's refusal of the applicant's application was based on an erroneous finding of fact. There was documentary evidence before the officer that showed that the applicant had sufficient English language abilities. The officer failed to give any explanation as to why he rejected the reliable and verifiable documentary evidence.

[20]                        The applicant submitted that if the officer had concerns about the applicant's language abilities, it was incumbent upon him to inform the applicant of his concerns. He failed to do so in this case. That is a reviewable error.

Respondent's Submissions

[21]                        Standard of Review

The respondent submitted that considerable deference must be given to the decision-maker when reviewing an exercise of discretion (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). In the alternative, the Court should review the exercise of discretion on a standard of reasonableness simpliciter.

[22]                        The respondent submitted that the applicant is requesting that the Court re-weigh the evidence about her facility with the English language. A fair reading of the CAIPS notes shows that there was nothing unreasonable about the officer's findings of fact.

[23]                        The respondent submitted that the CAIPS notes show that the applicant did not in fact establish that she met the minimum requirement of being able to respond to emergency situations by contacting a doctor or emergency services, or that she would be able to communicate with others outside her home. For example, the applicant failed to answer the officer's simple, direct questions about her family and education without the officer repeating each question very slowly and a minimum of three times.

[24]                        The respondent further submitted that the applicant relied heavily upon an interpreter's assistance to answer questions. The applicant's responses did not demonstrate that she had the ability to communicate effectively in the English language. It was entirely reasonable for the officer to infer that the applicant would require the same consideration and patience from others in an emergency situation as the applicant's inability to communicate would inhibit her ability to seek emergency assistance if required to do so.

[25]                        The officer had evidence before him that the applicant could neither speak nor listen well enough to communicate effectively in the English language. She therefore did not comply with the requirements of the live-in caregiver program.

[26]                        The respondent submitted that the onus is on the applicant to satisfy the legislative requirements. The officer was not required to advise the applicant of any concerns and how they may impact the decision to be made. In any event, the officer explained the language requirement to the applicant at the start of the interview.

[27]                        The respondent submitted that this case is distinguishable from Giacca, supra. In this case, the applicant was in the same room as the officer, and later on the interpreter, and the officer was able to clearly and distinctly hear each of the applicant's replies. There is no indication that the officer and the applicant were speaking at the same time, or that the officer did not hear the applicant's responses.

[28]                        The respondent submitted that the officer properly exercised his discretion after assessing the evidence submitted by the applicant and examining her in person. The Court should not interfere with the decision.

Relevant Statutory Provisions

[29]                        Section 11 of the Immigration and Refugee Protection Act, supra, states: