Date: 20020208
Neutral citation: 2002 FCT 146
BETWEEN:
WANG, JIA QIANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of a visa officer, dated June 19, 2000, dismissing the applicant's application for permanent residence in Canada under the independent category, as a tool and die maker.
[2] The visa officer awarded the applicant 66 points, 4 short of the 70 points required to succeed in his application. In the course of an interview the visa officer administered language tests to the applicant, and, finding that the applicant had difficulty writing in English, she awarded him 2 points out of a possible 9 for his abilities. Under the heading of "personal suitability", the visa officer awarded the applicant 5 points out of a possible 10. These assessments, and the applicant's concern about the quality of the interview by the visa officer, are raised as issues in this appeal.
[3] I propose to deal with the issue of assessments for language ability and personal suitability before considering the applicant's concern about the interview, which is in essence a concern about alleged procedural unfairness, all after considering the standard of review which should be applied in this case, and after brief reference to the visa officer's decision and to her CAIPS notes of the interview of the applicant.
Standard of review
[4] While the applicant makes no submissions about the appropriate standard of review to be applied in this case, the respondent notes that the decision of the visa officer was discretionary in nature, and submits, based on, inter alia, Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, that a court should not interfere with the exercise of discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. In the respondent's submission, this Court should not intervene in this case unless it finds an error of law apparent on the face of the record, or a breach of the duty of fairness. I would only add that the Court may also intervene if it concludes that, in the exercise of her discretion, the visa officer reached a conclusion of fact that was patently unreasonable.
The visa officer's decision, and her CAIPS notes of the interview of the applicant
[5] In her decision of June 19, 2000, the visa officer advised the applicant that he was not admissible since he failed to earn the minimum number of units of assessment (70) required to pass in the independent category.
[6] The officer's CAIPS notes from the interview of the applicant are as follows:
GFK 24-MAR-2000
PI interviewed this date, commenced at 9:54 a.m., finished at 10:17 a.m.:
LANGUAGE
PI speaks English well. Reading and writing tests administered, on file, well in reading, with difficulty in writing. In aggregate, 2 for English, no French.
OCCUPATION
PI was able to provide technical details on the different moulds he designed, satisfied of his experience.
PERSONAL SUITABILITY
PI demonstrated motivation in completing university studies. However, he lacked the initiative, resourcefulness and adaptability to research the general Canadian labour market, evidenced from his vague answers to questions related to securing employment in Canada. 5 for personal suitability.
Explained reasons of refusal to PI. PI provided no comments. Application refused, refusal letter to be sent.
The applicant's abilities in the English language
[7] The applicant submits that the visa officer erred by awarding him only 2 points for his abilities in speaking, reading and writing English.
[8] He urges that the visa officer fettered her discretion by assessing his reading and speaking of English, against a standard of "well", instead of against a standard of "fluent". In cross-examination, the visa officer stated that her decision not to assess the applicant against a standard of "fluent" reflected the fact that the applicant had self-assessed his speaking, reading, and writing skills as "well", and not as "fluent".
[9] The applicant relies on Paul v. Canada, [1999] F.C.J. No. 1587, where Mr. Justice Campbell quashed a visa officer's decision because the visa officer had only assessed the applicant's ability to speak English, instead of assessing the applicant's ability to speak, read, and write English, as required by Schedule I of the Immigration Regulations, 1978 (SOR 78/172). The applicant also relies on Chatrova v. Canada (M.C.I.) (1996), 34 Imm. L.R. (2d) 59, where Madam Justice Reed quashed a decision of a visa officer who had tested an applicant's English-speaking ability against a standard of "flawlessness" instead of the appropriate standard of "fluency", and because the visa officer also decided, without testing the applicant, that the applicant's writing skills were comparable to her oral, rather than her reading skills.
[10] The respondent submits that this case is distinguishable from Chatrova, and relies instead on Ashraf v. M.C.I. (1998), 47 Imm. L.R. (2d) 276, where Mr. Justice Muldoon dismissed the application for judicial review, commenting, at para. 18, that:
The applicant has admitted that his English skills are not fluent, but are "moderate". The issue raised is not like that raised in Chatrova v. Canada (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 308, in which Madam Justice Reed set aside the decision of a visa officer on the basis that the visa officer demanded that the applicant's English be "flawless" in order to obtain the full units of assessment.
[11] There is no evidence that the visa officer in this case assumed language ability had to be flawless to be considered "fluent". Moreover, in my opinion, it was not an error on her part to fail to assess the applicant's ability against a standard of "fluency" when the applicant himself considered he spoke, wrote, and read English "well". Accordingly, I am not persuaded by the applicant's argument that the visa officer erred in the manner of her assessment of his reading and speaking abilities in English. Having assessed both those abilities as "well", but his writing ability as "with difficulty", and with no ability in French, the applicant was not entitled to more than 2 units of assessment for ability in English in accord with Schedule I, and that assessment was assigned by the visa officer.
[12] The applicant argues that the visa officer erred by failing to consider his January 1997 TOEFL (Test of English as a Foreign Language) score of 530/677. No reference to that test score was made in her CAIPS notes, but in cross-examination, the visa officer stated that she considered the applicant's TOEFL score, but gave it no weight, and that she placed more emphasis on the applicant's demonstrated level of English at the interview.
[13] The respondent submits that it was open to the visa officer to place more weight on the interview than on the applicant's TOEFL score. In support of this submission, the respondent relies on Alakkad v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 95, where Madam Justice Simpson found no reviewable error despite the fact that the visa officer failed to mention the applicant's Alliance Français course in his affidavit. In that case, Simpson J. commented, at para. 14:
In cases such as this, where an interview is held, the language assessment is conducted during the interview. It seems reasonable that, if applicants cannot satisfy a visa officer of the language skills they claim to have, the question of how many courses they may have taken is largely irrelevant. For these reasons, I can find no reviewable error in the fact that the Officer did not mention the Alliance Français course in his affidavit.
[14] Here, in my view, the visa officer did not err by assigning any particular, or no, weight to the applicant's TOEFL results. Assessment of spoken English may normally be done in the course of the applicant's interview. The applicant was assessed as speaking English "well". I note that his TOEFL results were not based on written English, which was not tested at that time, as part of the TOEFL testing.
[15] The applicant suggests that strong written English skills are not a job requirement for the position of tool and die maker, and therefore the visa officer ought not to have failed him because of her assessment of his written English. In my view, the visa officer did not fail the applicant because of her assessment of his capacity in English; rather, the visa officer assessed the applicant according to all the required criteria, including his ability in English. Units of assessment were awarded under various criteria, and the applicant failed because the total number of units of assessment awarded, for all criteria, was less than 70.
[16] The applicant next submits that the visa officer's finding of fact was perverse and capricious because she could not adequately explain why the applicant's English writing was not better assessed by her. In my view, the explanations offered by the visa officer during cross-examination, and, with respect to the sample of the applicant's written test in the record, are adequate. The respondent raises the case of Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1080, where Mr. Justice Dubé held, at para. 5:
The visa officer is in a much better position than the Court to assess the quality of the language of an applicant and, in the absence of any bad faith on the part of the visa officer, the Court must treat her decision with all due deference.
Since I do not find any evidence that the visa officer in this case exercised bad faith, I see no reason to intervene with her assessment of the applicant's ability to write in the English language.
[17] Finally, the applicant suggests that the visa officer was not qualified to assess his English skills, since English was not the visa officer's first language and she had never taught English to anyone outside her family. I note that prior to beginning her work for the Canadian Consulate in Hong Kong, the visa officer had lived in Canada for several years, and pursued post-secondary education, presumably in English, in this country. There is no evidence that the visa officer was not qualified to assess the English skills of the applicant for immigration purposes. Her qualifications to do so are matters to be assessed by her employer, not for assessment by the Court in dealing with an application for judicial review.
The applicant's personal suitability
[18] The visa officer awarded the applicant 5 points, out of a possible 10, for personal suitability. As we have seen, in her CAIPS notes, the visa officer wrote:
PI demonstrated motivation in completing university studies. However, he lacked the initiative, resourcefulness and adaptability to research the general Canadian labour market, evidenced from his vague answers to questions related to securing employment in Canada. 5 for personal suitability.
[19] The applicant submits that the visa officer erred by referring to completion of university studies, double counting that for "personal suitability" as well as for "education". Further, it is said that she erred by refusing to consider evidence of his internet job searches. By his affidavit the applicant states that after asking him only two questions at the interview, which he answered, the visa officer told him he had failed the interview because his English was not good enough and she declined to speak further with him or to look at materials he had brought with him concerning his internet search for job opportunities in Canada in his intended occupation, as a tool and die maker. In response, by her affidavit, the visa officer states that she had no concern about the applicant's qualifications, and placed more weight on his "recount" of his preparations for immigration.
[20] The applicant relies on So v. Canada (Minister of Employment and Immigration) (1995), 28 Imm. L.R. (2d) 153, where Mr. Justice Rouleau, in quashing the decision of a visa officer, commented, at para. 7:
...(I)n making his decision, he [the visa officer] clearly disregarded pertinent and relevant facts, such as the applicant's twenty years of experience as a chef and his certificate as a Class 1 Chef in Cantonese dishes...
The applicant submits that the visa officer in this case similarly disregarded pertinent and relevant facts.
[21] The respondent submits that it was open to the visa officer to place little weight on the applicant's documentation of his internet job searches. Relying on Prasad v. M.C.I. (1995), 34 Imm. L.R. (2d) 91 (F.C.T.D.), the respondent asserts that the onus is on the applicant to fully satisfy the visa officer that he or she meets the requirements for admission. There is no dissent about the general principle of the task facing an applicant for immigration to Canada.
[22] Yet that principle does not imply that a visa officer, when interviewing an applicant, can ignore documents which the applicant may have to indicate his efforts to find available employment opportunities, of which there were a substantial number listed by internet sources searched by the applicant in this case. Moreover, ignoring such evidence as there was and then concluding, as the visa officer did, in relation to personal suitability, that the applicant "lacked the initiative, resourcefulness, and adaptability to research the general Canadian labour market, evidenced from his vague answers to questions related to securing employment in Canada..." was not well-founded. This is particularly so because in cross-examination the visa officer was unable to recall any questions relating to securing employment in Canada to which, in her view, the applicant gave vague answers.
[23] In my opinion, the visa officer erred in assessing personal suitability largely on the basis of the applicant's failure "to research the general Canadian labour market...", when she refused to consider the relevant evidence of the applicant concerning his search, which produced indication of a reasonable number of jobs in his intended occupation in Canada.
Alleged breach of procedural fairness
[24] The applicant alleges other errors by the visa officer, but of these, in my view, only the allegation of a breach of procedural fairness raises a serious issue. By the visa officer's record, the applicant's interview lasted 23 minutes, including 15 minutes which were taken up with the language tests, and some further time which was taken up with the visa officer introducing herself, giving instructions related to the test, and communicating the test results to the applicant. The parties are agreed that, apart from the language tests, the interview was brief, lasting 5-8 minutes. In the applicant's submission, the short duration of the interview constitutes a breach of procedural fairness when considered with the apparent indifference of the visa officer.
[25] In his affidavit, the applicant claims that, apart from the language tests, the visa officer asked him only two questions, one about his job duties, and the other about his future career plans in Canada. The visa officer, by her affidavit, disagrees with the applicant's statement that she asked questions perfunctorily, and states that the questions she asked were relevant to her assessment, and the number of questions asked was irrelevant. The applicant's concern is that the visa officer erred by failing to ask him further questions before assigning an assessment of 5 for his personal suitability.
[26] The respondent submits that there was no breach of procedural fairness in this case. As Mr. Justice Evans held in Lukic v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 325 (T.D.) at para. 12: "There is no minimum length of time that an interview must last in order to be fair." The respondent also relies on Rusli v. Canada (Minister of Citizenship and Immigration) (1997), 127 F.T.R. 13, where the visa officer did not dispute the applicant's claim that the interview lasted only 10 minutes. In dismissing the application for judicial review in that case, Mr. Justice Teitelbaum commented, at para. 9:
It is the content of the interview, rather than its length that is a better indicator of whether the rules of fairness and natural justice were respected.
[27] In considering whether there was a breach of procedural fairness in this case, I am guided by the words of Mr. Justice Evans in Lukic, supra, at para. 13:
The question is whether, in light of all the circumstances, the interview was sufficiently thorough to enable the officer to be reasonably well informed about the basis of the applicant's claim.
[28] In my opinion, the interview of the applicant, on his evidence which is not denied by the visa officer, was inadequate for purposes of assessing the applicant, particularly in regard to personal suitability where the officer reached a conclusion without considering relevant information which the applicant sought to bring forward, and apparently considered his educational attainment, a matter already assessed and thus not relevant to assessment of his personal suitability.
Conclusion
[29] Since I find the visa officer erred in ignoring relevant information, and in considering irrelevant evidence, I need not finally determine whether the conduct of the interview constituted a breach of procedural fairness in dealing with the applicant.
[30] In my opinion, the visa officer erred particularly in failing to consider the information of the applicant which related to his search for job opportunities in his occupation in Canada. Having erred, the conclusion of the officer concerning the applicant's personal suitability, based largely on the officer's perception that the applicant failed to demonstrate initiative in examining the general job market in Canada, could only be considered unwarranted.
[31] An Order goes allowing the application for judicial review, and referring the matter back to the respondent for reconsideration by a different visa officer.
Costs
[32] The applicant seeks special costs "...given the respondent's insistence that the Officer did a fine job". That request is supported by earlier correspondence urging the respondent to reconsider the matter, and to have the visa officer better inform herself for the purpose of cross-examination. That cross-examination was carried out by telephone conference over two sessions because the visa officer was available only for 2.5 hours for the first session and did not then answer many questions, particularly about the interview process generally applicable. Other questions were dealt with primarily by reference to her CAIPS notes. The second session, two months later, lasted 2.25 hours.
[33] The Federal Court Immigration Rules, 1993 provide by Rule 22 that:
| No costs shall be awarded to or payable by any party in respect of an application under these Rules unless the Court, for special reasons, so orders. |
Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande ou l'appel introduit en application des présentes règles ne donne pas lieu à des dépens. |
|
In my opinion, the circumstances of this case were unusual in the necessity of conducting a second session by telephone to complete the cross-examination on the visa officer's affidavit. The applicant was entitled to cross-examine and to seek answers to questions reasonably arising in relation to the evidence of the visa officer as set out in her affidavit.
[34] The second scheduled conference for cross-examination was the result of the visa officer's inability on the first occasion to answer questions reasonably raised, and the limited time for which she was then available. Those circumstances provide special reasons for an award of costs to the applicant in an amount related only to preparations for, and time devoted to, the second scheduled occasion for cross-examination of the visa officer, which costs I fix at $500. plus any reasonable disbursements incurred by the applicant in relation to that conference, e.g. telephone charges, costs of the court reporter and transcript. Those costs of reasonable disbursements I direct the parties to agree upon within 30 days. If there be no agreement, the Court directs brief written submissions by each of the parties be submitted on or before March 15, 2002 for decision of the Court on a fixed amount for disbursements.
(signed) W. Andrew MacKay
_____________________________
JUDGE
OTTAWA, Ontario
February 8, 2002.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3912-00
STYLE OF CAUSE: Wang, Jia Qiang and the Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 19, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MACKAY DATED: February 8, 2002
APPEARANCES:
Mr. Lawrence Wong FOR APPLICANT
Ms. Pauline Anthoine FOR RESPONDENT
SOLICITORS OF RECORD:
Lawrence Wong & Associates FOR APPLICANT Vancouver, British Columbia
Mr. Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada