Date: 20000302
Docket: IMM-4410-98
BETWEEN:
KHODABAKSH MEHRABANI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
LEMIEUX, J.
Background
[1] In order to be issued a visa for permanent residence in Canada, an applicant in the independent category must be awarded 70 units. Khodabaksh Mehrabani (the applicant), a citizen of Iran, was assessed as an accountant, CCDO: 1171114. After an interview, he was awarded 69 units; he was one unit short. He was refused the required visa on July 10th, 1998.
[2] The applicant attacks his personal suitability and written language ability assessments. For personal suitability, he scored 5 units out of 10 and in terms of language skills, he scored "well" but not "fluent" after undergoing a 15 minute writing exercise.
[3] These factors are prescribed in the schedule to the Immigration Regulations. The personal suitability factor is as follows:
| units of assessment shall be awarded on the basis of 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. |
[4] The language factor reads:
| ..... credits shall be awarded according to the level of proficiency in each of the abilities, namely, speaking, reading and writing as follows: |
| (a) for an ability to speak, read or write fluently three credits shall be awarded for each ability; |
| (b) for an ability to speak, read or write well but not fluently, two credits shall be awarded for each ability; and |
| (c) for each ability to speak, read, or write with difficulty, no credits shall be awarded for that ability. |
The Visa Officer"s Decision
[5] The visa officer"s refusal letter to the applicant does not expand on underlying reasons for each factor assessment. Such reasons are, however, reflected in his CAIPS notes recorded during his interview with the applicant.
[6] This is what is recorded by the visa officer about the applicant"s language skills:
| - Oral comprehension and expression. In a conversation touching on a range of issues from religion to Iran"s recent history, the business environment in present day Iran and his education in India. Subj demonstrates generally good understanding of spoken English. I only have to repeat a question once or twice: he takes my point and responds accurately in most cases. Subj expresses himself quite well - pronunciation is fairly clear although there is a definite accent and some vowels are not clear. Good general vocabulary, but on occasion searches for words related to (for example) religious practice and military service, almost always express himself in complete albeit fairly simple sentences. |
| 2 Points out of possible 3 (speaks well but not fluently). |
| - Reading. Asked to read aloud from a passage on Canadian families from Newcomer"s Guide to CDA. Reads slowly with period hesitations: on several occasions missed a particular word (but usually catches his own mistake and corrects). Very monotone which interferes with my understanding. After reviewing text again asked to summarize in his own words. Subj is able to explain some but not all of the important themes: has basically understood cultural backgrounds as factor which complicates family structures but misses point that even families which immigrate from different backgrounds tend to follow CDN norms related to number of children. Reads well but not fluently - 2 points our of 3. |
| - Writing. Asked to write a paragraph on Iran and its people. See attached. Simple sentences not always correctly formed. Some awkward or un-natural expressions. Did not manage to write more than 7 or 8 short sentences in 15 minutes.... |
| Write well but not fluently: 2 out of 3 points. |
[7] As to personal suitability, the visa officer wrote:
| Subj is counting on his long experience as accountant and presence of friends in CDA with whom he hopes to set up business to secure his economic and social adaptation. Feels he has enough money (45,000 US$). Through friends got some info on CDN tax system. Since last interview has not pursued (or less than before) has not familiarized himself with common accounting software -- has only limited computer experience in Iran. Has not recently read anything about Canada. |
| Is waiting for positive result from IMIG to prepare himself and family for CDA. |
| Subj has not displayed a great deal of initiative or motivation to prepare himself for new life in CDA. Fairly passive. Relying on limited info from friends. Has not demonstrated that he has much ability to adapt to changing circumstances in for example his profession: Although he states himself that in Iran computers are widely used he admits that he himself has made very little use of computers. |
| 5 Points (out of 10) for personal suitability. |
The Applicant"s Affidavit
[8] The applicant, in support of his judicial review application, filed an affidavit which addressed the two factors which he challenged. Paragraph 5 of his affidavit deals
with personal suitability and reads:
| About my personal suitability, the Officer asked me what I had done so far to help me settle in Canada. I told him that I had transferred about USD$45,000. He did not ask for any evidence, but I had the bank certificates. I also told him that I had a house and a car and that I would sell them and transfer the money to Canada when I was sure that he would issue me the immigrant visa. In addition, I told him that I have friends in Canada who are working for me to establish an accounting firm there. Of course, I would attend H & R Block for the taxation course and that I could then even work with H & R Block. I showed the Officer the booklet about H & R Block that my friend in Canada had sent to me. I also told the Officer that I had more contacts with my friends before my first interview, and they had set up everything so that I could start working on my arrival. Then the Officer asked me if I knew how to use a computer. I said that I knew a little and that I am able to get various reports from a computer while other people enter the information. The Officer finally told me that he could give me 5 points out of 10, and then he read the points for each description and total points of 69. I asked if he could add only one point so that my score became 70. The Officer then told me that he was going out and that he would review it in the evening when he came back. I said that it would be very kind of him to give me one more point. He said that he was not doing kindness but justice. |
[9] The applicant describes in his affidavit at paragraph 4 the language skill assessment at the interview in these words:
| At the interview, the Officer examined my English skills and personal suitability. First he asked me some questions and I answered his questions. Then he told me to read one page of a book aloud and to briefly tell him what I understood. After that, the Officer gave me a piece of paper and told me to write about Iran. He was very precise and tough. The Officer also asked me about politics, economy, army, religion, social life and finally about Iran. I wrote about half a page. I could not get a better score if I had given a test like this in my mother tongue. The Officer told me that I knew all the vocabulary but that I had an accent and that it was natural. He said that on the whole my English was well but not fluent so he could only give me 6 points. |
The Visa Officer"s Affidavit
[10] The visa officer responded to the applicant"s affidavit. This is what he outlined as to the personal suitability factor:
| I then turned my attention to the question of the Applicant"s personal suitability for immigration to Canada. In assessing the Applicant"s personal suitability I considered the extent to which he has demonstrated initiative and motivation, for example in preparing to enter the work force in Canada. I noted in this respect that he has been fairly passive, relying on limited information from friends. In terms of his adaptability and resourcefulness, I noted that although computers are by his own admission in common use by accountants in Iran, the Applicant has made little effort to familiarize himself with their function and has made no effort to determine what software applications are in common use in Canada although he did hope to find employment with a Canadian company. The Applicant stated that he had not recently read anything about Canada, that he did not keep track of current events in Canada, and that he was waiting for a positive immigration decision before starting to prepare himself and his family for the move to Canada. Taking all these elements into consideration, I awarded the Applicant 5 points out of a possible 10 for personal suitability. |
| I informed the Applicant of my assessment of his personal suitability and gave him a chance to respond. At the end of the interview, I reviewed the selection criteria and my assessment, provided another chance for the Applicant to respond to my concerns, and informed him that I would make a final decision after I have had a chance to review the file and reflect on the information provided. The Applicant asked if he could learn the results before returning to Iran and I agreed to finalize his application the next day. |
[11] The visa officer also addressed the language skills issue by first dealing with the meaning of the word "fluent". He said:
| The terms "fluently" and "well" are not defined in the Immigration Act or Regulations. However, the concise Oxford Dictionary (9th edition) defines "fluently" as the adverbial form of fluent, "flowing naturally and readily; able to speak quickly and easily". "Fluency" is also defined as "a smooth, easy flow especially in speech or writing; a ready command of words or of a specified foreign language". The adverb "well" is defined in the same text as "in a satisfactory way; with some talent or distinction...". These are objective criteria which guided my assessment of the Applicant"s English skills. |
[12] The visa officer had this to say about his assessment of the applicant"s ability to write:
| Finally, I assessed the Applicant"s ability to write in English by asking him to draft a short text on the subject of Iran and its peoples. The Applicant was given 15 minutes to write, at the end of which I reviewed and assessed his performance. A copy of the resulting text may be found at page 85 of the Certified Record. In 15 minutes the Applicant was only able to write seven or eight sentences, which were not always properly formed and which contained awkward or unnatural expressions. As a result, I determined that the Applicant writes English well but not fluently and awarded 2 points out of a possible 3. Overall, I determined the Applicant speaks, reads and writes English well, but not fluently and awarded 6 points for English language ability. I informed the Applicant of my conclusions and gave him a chance to respond. |
Analysis
(a) The issues
[13] The principal grounds raised by the applicant to set aside the visa officer"s decision relate to matters of evidence. The applicant argues the finding by the visa officer, he only wrote well, is unreasonable; (a) he did not write only 7 or 8 sentences - he wrote nine (b) there is nothing awkward in his expressions, (c) the sentences were properly formed and (d) he demonstrated advanced punctuation. The applicant adds that fluency is not determined by the number of sentences a person can write but by the accuracy expressed.
[14] The applicant challenges the personal suitability assessment on the basis the visa officer ignored material evidence: (1) he demonstrated motivation by the transfer of funds to Canada and the promise of more to come when he sold his house in Iran (2) he showed resourcefulness evidenced by a concrete training and employment plan particular through H & R Block of which no mention was made; in this respect, the visa officer was wrong to conclude the applicant was passive and only relied on friends. Moreover, this visa officer put too much emphasis on the applicant"s lack of knowledge of Canada.
(b) The legal principles
[15] As I see it, the following are the governing legal principles on this judicial review application:
| (a) the standard of review on factual findings is "an extremely deferent one"; Courts "must not revisit the facts or weigh the evidence". Only where "the evidence viewed reasonably is incapable of supporting the tribunal"s findings will a fact finding be patently unreasonable". CUPE v City of Montreal (1997) 1 S.C.R. 793 at 844. |
| (b) the reasons of the tribunal must not be "read microscopically"; it is enough "that they show a grasp of the issues that are raised and of the evidence addressed to them, without detailed reference. The record is available as a check on the Board"s conclusions". Boulis v. The Minister of Manpower and Immigration [1974] S.C.R. 875 at 885. |
| (c) A long series of decisions, of this Court, illustrated by Gill v. Canada (M.C.I.) 34 IMM L.R. (2d) 127 particularly with respect to the assessment of the personal suitability factor, have said the Immigration Act confers upon visa officer"s a broad discretion which is entirely within his/her jurisdiction and will not be interfered with if that opinion is reasonable, is not tainted with irrelevant considerations, is made in good faith, contains no errors of law such as "double counting" or misinterpreting the NOC requirements and is not arbitrary or capricious of which ignoring the evidence would be one element. |
(c) Application to this case
(i) the language assessment
[16] I cannot simply substitute my views on what the applicant wrote for that of the visa officer. The applicant must show the assessment is flawed. Several decisions of this Court have recognized the visa officer is in a much better position to assess the quality of the language of an applicant than the Court is (See, Ali v. Canada (M.C.I.) IMM-4873-97, July 22nd, 1998; Ashraf v. Canada (M.C.I.) [1998] F.C.J. 1561).
[17] In my view, the applicant has not succeeded in establishing the visa officer committed a reviewable error warranting the Court"s intervention. The visa officer did not require perfection in writing as was the case in Chatrova v. Canada (M.C.I.) [1996] F.C.J. 443. I construe the applicant"s argument as an invitation, which I must decline, for me to reweigh the evidence before the visa officer.
(ii) Personal suitability
[18] There is no question the extent to which an applicant researches job opportunities and the Canadian labour market is indicative of motivation and initiative and reliance on friends is also a factor (Yin v. Canada (M.C.I.) IMM-4258-98, June 7th, 1999); so is knowledge of Canada (Wang v. Canada (M.C.I.) IMM-2816-98, May 6th, 1999) and the amount of available funds Rizk v. Canada (M.C.I.) (1999) F.C.J. No. 1083. In my view, it cannot be said on this record the visa officer failed to take into account relevant considerations.
[19] Can it be said, however, the visa officer ignored or misconstrued relevant evidence. In my view, the visa officer did not. A review of the CAIPS notes and the visa officer"s affidavit shows he addressed the issue of available funds as well as the issue of the applicant"s training and employment program based on information from his friends. The visa officer took into account other factors including his adaptability in upgrading his computer skills and knowledge of Canada.
[20] On this record, I reach the conclusion, the visa officer"s assessment was reasonably open to him on the evidence and whether I would have reached a different conclusion is immaterial.
Conclusion
[21] For all of these reasons, this judicial review application is dismissed.
(Sgd.) "F. Lemieux"
Judge
March 2, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4410-98
STYLE OF CAUSE: Khodabaksh Mehrabani
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 22, 2000
| REASONS FOR ORDER OF Lemieux, J. |
DATED: March 2, 2000
APPEARANCES:
| Catherine A. Sas For the Applicant |
| Helen Park For the Respondent |
SOLICITORS OF RECORD:
Ms. Catherine A. Sas
Barrister & Solicitor
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |