Date: 20010905
Neutral citation: 2001 FCT 991
BETWEEN:
ZAHIRUL ISLAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks to set aside the decision of Gregory Chubak, a visa officer, dated July 12, 2000, pursuant to which he refused to issue a visa to him.
[2] The applicant's application for permanent residence in Canada was received by the Canadian High Commission in Singapore in April 1997. The applicant was seeking admission to Canada in the independent category and was refused admission under paragraph 19(2)(d) of the Immigration Act, 1976 (the "Act") and under subsections 8(1) and 9(1) of the Immigration Regulations, 1978 (the "Regulations").
[3] The applicant was interviewed by the visa officer on July 4, 2000. At the end of the interview, the visa officer informed the applicant that his application for admission to Canada would be refused. On July 12, 2000, the visa officer wrote to the applicant in the following terms:
This refers to your application for permanent residence in Canada and your interview held on 04 July 2000 at the Canadian High Commission in Dhaka. I have now completed the assessment of your application and have determined that you do not meet the requirements for immigration to Canada.
Unfortunately, you failed to achieve sufficient units of assessment for immigration to Canada. For this reason, you are a member of the inadmissible class as described in 19(2)(d) of the Immigration Act, 1976. You are a person "who cannot or do(es) not fulfil or comply with any of the conditions or requirements of the Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations."
Pursuant to section 8(1) of the Immigration Regulations, 1978 as amended, prospective immigrants in the independent category are assessed on the basis of each of the factors listed in column I of Schedule I of the Regulations. These factors are: education, specific vocation preparation (SVP) or education/training factor (ETF), experience, occupational demand, arranged employment or designated occupation, demographic factor, age, knowledge of the English and French languages and, on the basis of an interview, personal suitability. Sections 9(1) and (2) of the Regulations require that an independent applicant obtain at least one unit of assessment in each of the factors of experience and occupational demand, and a minimum of 70 units of assessment, to qualify for admission to Canada.
I have assessed you in the occupation of Irrigation & Drainage Engineer, CCDO 2143-138 NOC 2131.0. However, you have obtained insufficient units of assessment to qualify for immigration to Canada in this, your intended occupation.
CCDO NOC
Age 10 10
Occupational Demand 05 05
Specific vocational preparation/ETF 18 17
Experience 08 08
Arranged Employment 00 00
Demographic Factor 08 08
Education 15 15
English 02 02
French 00 00
Personal Suitability 03 03
Total 69 68
You have been awarded 2 units for language ability based on your demonstrated ability to speak English well, read English fluently and write English with difficulty. I consider the total units of assessment which you have been awarded to be an accurate reflection of your ability to successfully establish in Canada.
[4] It appears from the visa officer's letter of July 12, 2000, that the applicant was assessed against the factors set forth in Schedule I to the Regulations. The applicant needed to obtain 70 points in order to be found admissible to Canada. As he applied for permanent residence in March of 1997 (his application was signed on March 13, 1997), the applicant was assessed under both the Regulations in force prior to May 1, 1997 and those that came into force on that date. Thus, the applicant's application was assessed under the National Occupational Classification (the "NOC") and the Canadian Classification and Dictionary of Occupations (the "CCDO"). He obtained 68 points under the NOC and 69 points under the CCDO.
[5] In these proceedings, the applicant challenges the visa officer's decision in respect of his assessment pertaining to Language, Education and Personal Suitability. The applicant also challenges the visa officer's decision on the ground that he breached the duty of fairness owed to him.
[6] The applicant, a 46-year old engineer and a citizen of Bangladesh, who has been working as an irrigation and drainage engineer for the Bangladesh Water Development Board since 1979, applied in the independent category in the occupation of "Irrigation and Drainage Engineer" (CCDO 2143-138).
[7] The application has a Bachelor of Science in Agricultural Engineering and a post-graduate diploma from the International Institute for Hydraulic and Environmental Engineering (IHE) of Delft, The Netherlands.
[8] I begin my analysis with the language factor. The applicant obtained two credits for English and 0 credit for French. There is no issue with regard to the assessment made as to the French language. The issue raised by the applicant with respect to the language factor pertains only to his written English. The visa officer concluded that the applicant wrote English "with difficulty" and hence, gave him 0 for written ability. The visa officer gave the applicant 3 credits for reading ability and 2 for speaking ability, for a total of 5 credits, which entitled the applicant to 2 units for the factor "Knowledge of English and French languages".
[9] The criteria to be met for the award of units under Factor 8, Knowledge of English and French Languages, include the following:
(1) For the first official language, whether English or French, as stated by the person, credits shall be awarded according to the level of proficiency in each of the following abilities, namely, speaking, reading and writing as follows:
a) for an ability to speak, read or write fluently, 3 credits shall be awarded for each ability;
b) for an ability to speak, read or write well but not fluently, 2 credits shall be awarded for each ability;
c) for an ability to speak, read or write with difficulty, no credits shall be awarded for that ability [...]
(3) Units of assessment shall be awarded on the basis of the total number of credits awarded under subsections (1) and (2) as follows:
a) for zero credits or one credit, zero units;
b) for 2 to 5 credits, 2 units; and
c) for 6 or more credits, 1 unit for each credit.
[10] As I indicated earlier, the applicant obtained 5 credits, and thus was given 2 units for this factor. As the applicant correctly submits, had he obtained 2 credits for "writing well", he would have obtained 7 credits, and thus would have been awarded 7 units, in lieu of 2, which would have taken him over the 70 unit barrier. The applicant submits that it was perverse for the visa officer to conclude that he wrote "with difficulty". Unfortunately for the applicant, I disagree. The following entry appears in the visa officer's CAIPS notes:
Language - PI's language not as submitted. Oral facility below threshold of ‘fluent' but PI able carry interview in English. PI's oral English surprisingly poor given that he has been abroad. PI had substantial difficulty providing any detail to description of work. Written sample (attached) assessed as ‘with difficulty'. Reading ability accepted as per self-assessment. PI warrants 2/9 aggregate. PI so counselled.
[11] The applicant was given a test whereby he had to answer four questions in writing. It is on the basis of the answers given to these questions by the applicant that the visa officer concluded that he could only write "with difficulty". The guidelines for processing independent immigrants, to which counsel for the applicant referred me, offers the following advice to visa officers in regard to the assessment of an applicant's writing ability:
• where "the applicant is able to write a basic report or summary relevant to their education, work, or social situation", he may be assessed as writing "well"; and
• where "the applicant is able to write only a few learned words or sentences of a familiar nature", he may be assessed as writing "with difficulty".
[12] As I indicated to counsel during the hearing, I can only conclude, on the basis of the written answers given by the applicant, that he is only able to write "a few learned words or sentences of a familiar nature". I cannot conclude, on the basis of his written answers, that he is able to write "a basic report or summary relevant to his education, work or social situation".
[13] At paragraph 42 of her submissions, counsel for the applicant argues the following:
42. It is submitted that, by any objective reading of the Applicant's writing sample, particularly in light of his having completed a post-graduate degree and other studies in English, it was perverse of the officer to find that the Applicant wrote with difficulty (able to write only a few learned words or sentences of a familiar nature) rather than well (able to write a basic report or summary relevant to the education, work or social situation).
[14] It is clear, on the basis of the applicant's written answers, that the conclusion that he wrote "with difficulty" is not perverse, but entirely reasonable. The fact that the applicant studied in English does not render the visa officer's decision perverse. It is certainly surprising, at the very least, that the applicant did not do better in his written test, considering that he had studied in English. In my view, the visa officer did not have to engage in an investigation as to why the applicant did not write better. The plain fact is that the applicant was assessed by the visa officer, and the conclusion reached by the visa officer is, in my view, anything but unreasonable. Consequently, the applicant fails on this issue.
[15] I now turn to the Education factor, regarding which the applicant was given 15 units by the visa officer. The applicant submits that by reason of his post-graduate diploma, which he submits is equivalent to a Master's degree, he ought to have been awarded 16 units, not 15. Again, had this occurred, the applicant would have obtained 70 units.
[16] In his application for permanent residence, the applicant indicated that he had obtained a B. Sc. (Agri) Engg. from the Bangladesh Agricultural University, and that he had also obtained a diploma (HID) Engg. from the IHE.
[17] In his affidavit dated October 30, 2000, the visa officer, at paragraph 5 thereof, states the following:
5. The Applicant provided in his application that he had obtained a B. Sc. in Engineering and that he had completed a post-graduate diploma program. I consequently awarded 15 units for the Education factor. In his Affidavit, the Applicant states that his post-graduate diploma is "equivalent to a Master's Degree". Absolutely no evidence of this was presented to me, either at interview or in the application he submitted. On the contrary, the information he provided indicated that the diploma was not equivalent to a degree. In the cover letter sent with the Applicant's application, his consultant, Charles W. Pley, suggested 15 units for the Education factor, implying that the Applicant only had one degree.
[18] Factor 1 (Education) of Schedule I of the Regulations provides, inter alia, that:
Subject to subsections (2) to (4), units of assessment shall be awarded as follows:
[...]
(d) where a first-level university degree that requires at least three years of full-time study has been completed, 15 units; and
(e) where a second- or third-level university degree has been completed, 16 units.
[19] The question which arises is whether the diploma obtained the applicant in The Netherlands constitutes a second-level university degree, within the meaning of the Regulations. In his affidavit, the visa officer states that he had no evidence to that effect. On the contrary, according to the visa officer, the submission made by Charles W. Pley, the applicant's lawyer and consultant, was that the applicant was entitled to 15 units for the Education factor. In a letter dated March 20, 1997, to the Canadian High Commission in Singapore, Mr. Pley submitted the following calculation of units which, according to him, the applicant was entitled to:
Mr. Islam is well-qualified and experienced in the occupation "Irrigation and Drainage Engineer" (CCDO 2143 118). With respect, and subject to your further review, I have calculated the points Mr. Islam would obtain in this occupation as follows:
Age: 10
Occupation demand: 05
SVP: 18
Experience: 08
Demographic: 08
Education; 15
English: 09
Personal suitability: To be determined
_______________ ___
Total: 73
[20] The applicant points out that there was some evidence to support his submission that he had obtained a second-level university degree. In his CV and Work Experience sheet, the following entry appears under the column "Full name of degree or diploma":
Postgraduate diploma in hydraulic engineering (equivalent to M.Sc.).
[21] Counsel for the applicant also points out that Mr. Pley, in his letter of March 20, 1997, indicated that the applicant had completed a postgraduate diploma at the renowned International Institute for Hydraulic and Environmental Engineering in The Netherlands.
[22] Finally, the applicant refers to an addendum attached to his postgraduate diploma, which states:
The one-year diploma [?] courses of the International Institute for Hydraulic and Environmental Engineering combine practical and theoretical studies over a broad field in a manner that is difficult to compare with the more specialized M.Sc. courses of U.K. and U.S. universities. However, the academic level and the duration of the courses are fully equivalent to those of such M.Sc. courses.
[23] In his affidavit, at paragraph 8 thereof, the applicant states:
8. Regarding my education, the Visa Officer notes (at page 4 of the Tribunal Record): that I have a B.Sc. and CCPE. In fact, I have a Bachelor of Science in Agricultural Engineering and a post-graduate diploma from International Institute of Hydraulic and Environmental Engineering (IHE), Deft, The Netherlands, which is equivalent to a Master's Degree. His assessment points awarded to me for this category do not appear to take into account this post graduate education.
[24] Unfortunately for the applicant, I must come to the conclusion that the visa officer did not make a reviewable error. In my view, the visa officer gave the applicant 15 points for the factor Education, on the basis of Mr. Pley's letter of March 20, 1997. In other words, what appears to have happened is that Mr. Pley, acting on behalf of the applicant, submitted that his client was entitled to 15 points and, as a result, that is what the visa officer gave the applicant. Consequently, I am certain that this issue was not discussed during the interview. Nowhere in his affidavit does the applicant state that he indicated to the visa officer that he had a second-level university degree. I recognize that the addendum to the diploma states that the diploma is the equivalent of a M.Sc. degree, but that does not make the visa officer's assessment erroneous or reviewable. Mr. Pley, as it clearly appears from his letter of March 20, 1997, was well aware of the applicant's postgraduate level diploma from The Netherlands. Notwithstanding, Mr. Pley indicated that his client was entitled to 15 points. Regretfully, in the circumstances, if error there is regarding this factor, it is attributable to the applicant and Mr. Pley. They requested 15 points and that is what they were given.
[25] The next factor in respect of which the applicant disputes the visa officer's conclusion is that of Personal Suitability. For this factor, the visa officer awarded the applicant 3 units.
[26] The applicant, in challenging that part of the visa officer's decision, submits that the visa officer ignored a relevant consideration, namely, assistance from a relative, both in finding work and financial. This offer of assistance is found in a letter written by Mr. Nazrul Islam, which states:
This is to certify that Mr. ZAHIRUL ISLAM born at Shariatpur Bangladesh on 31 Jan 1954; current mailing address: CM International Immigration Service bearing Immigration Application File B 36 124 24 is my close relative by virtue of recent marriage between my niece and his brother in law.
I am an immigrant to Canada and I would like to offer Mr. ZAHIRUL ISLAM employment or any financial assistance upon his arrival to Canada. [...]
I wish him every success in life.
[27] At paragraph 7 of his affidavit, the visa officer states that he did not consider the offer of assistance by the applicant's relative to be relevant. Thus, the visa officer did not ignore this evidence, he simply found it irrelevant. I indicated to counsel during the hearing that I was also of the view that the offer made in the letter was irrelevant in regard to the assessment of personal suitability.
[28] In his affidavit, again at paragraph 7 thereof, the visa officer states that his CAIPS notes provide the basis on which he made his assessment concerning personal suitability. This is what the CAIPS notes reveal:
Personal Suitability - PI is an engineer who has spent entire career with same State engineering organization specializing in irrigation and flood control. PI has never been to Canada. PI stated that it was his intention to go to Vancouver and seek employment as an irrigation and flood control engineer. PI was questioned at length regarding his job strategy. Despite several prompts and iterations to ascertain whether or not PI had done any research or understood the vagaries and vicissitudes of the Canadian labour market, especially as they pertain to his chosen field of endeavour (engineering), PI provided only that he would find a job in engineering, and failing that, in farming. PI asked after various specific areas of experience and knowledge which would be required to find employment in chosen field in Canada. PI confirmed that he had done no research nor had obtained any insight into licensing, possible employers or even sectors of providing possible opportunities, or any other area germane to securing employment in the engineering field. Noting that PI has worked his entire career in a geomorphological/employment environment significantly dissimilar (and not replicated in) to Canada, it was important that he display some motivation, initiative, and resourcefulness with respect to labour market entry in Canada. PI was unable to explain or articulate any concrete job strategy and had done not even a modicum of research into the Canadian labour market or the requirements therein. PI had no idea of the geomorphology of Canada except ‘some is hilly and some part is plain', what types of irrigation, flood control, or related hydrological factors would affect ability to transpose experience. PI asked how he though his experience in a working environment so removed from that of Canada would affect his ability to find work and PI had no response. As contingency plan was farming, PI asked what he meant by this. PI could not elaborate and could not provide even the most general information on farming in Canada notwithstanding that he indicated this as a possible alternative should he not be able to find engineering work. PI provided that he had asked his consultant for information about Canada but had not received same not [sic] attempted to obtain same from any other source. PI displayed a significant reliance on extrinsic factors (consultant). PI had little understanding of settlement issues and knowledge of Canada was only of a general nature relevant (‘Canada is the 2nd largest country and was rated # 1 by the UNDP') and not relevant to either settlement/establishment or job market matters. Given PI's age and circumstances, this is not a realistic strategy. PI's lack of understanding of, and lack of research into, the Canadian labour market, and lack of labour market contingency plans are not indicative of such attributes as adaptability, initiative, motivation, or resourcefulness. With respect to any contingency plans, PI's lack of research, planning, and contingency plans belies a lack of the factors which might allow him to settle/establish successfully in Canada.
PI was awarded 03 units of assessment for personal suitability per Schedule I of the Immigration Regulations. The total points awarded accurately reflect PI's likelihood of successful settlement/establishment in Canada.
[29] As appears from the above, the visa officer concluded his narrative regarding the applicant's personal suitability by stating that the total units awarded to the applicant reflected, in his view, the applicant's likelihood of successful establishment in Canada.
[30] The criteria relating to the factor of Personal Suitability, as it appears in the Regulations, is as follows:
Units of assessment shall be awarded on the basis of an interview with the person, to reflect the personal suitability of the person and his dependents to become successfully established in Canada, based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities.
[31] As I have not been persuaded that the visa officer's assessment, on the evidence before him, is unreasonable, the applicant fails on this issue.
[32] I now turn to the last issue, and that is whether the visa officer breached his duty of fairness to the applicant. The applicant submits that the visa officer did not afford him an opportunity to address his concerns regarding the visa application, particularly with regard to the factors which are the subject matter of these proceedings.
[33] At paragraphs 11 and 12 of his affidavit, the applicant states:
11. The Visa Officer's CAIPS notes (page 4 of the Tribunal Record) say "At conclusion of interview PI was counselled fully of the assessment factors. No rebuttal or additional information provided". I deny that I was counselled fully as to the assessment factors. I was simply told by the Visa Officer that, although he thought I had the requisite skills pursuant to my application, he did not think I would be able to find employment in Vancouver and that I could not, therefore, establish myself successfully in Canada. He then told me that I would be receiving a refusal letter from the Canadian High Commission within seven days.
12. Although, during the written response portion of the interview, I heard Mr. Chubak's statement to himself that he thought I had difficulty writing English, those comments were made before he had seen my completed response to the written questionnaire, and at no time did he give me an opportunity to address any concerns he had regarding my ability to write English or speak in English. Further, although he states that I did not respond to his assessment, I was not aware that I was allowed to respond. The Visa Officer did not give me any indication that I could respond to his assessment at that point or at any point during the interview.
[34] As to the visa officer, he states, at paragraphs 8 and 9 of his affidavit, the following:
8. The Applicant was advised of the refusal of his application, as well as the reasons for this refusal, at the interview and was allowed to posit a rebuttal or to provide additional information. The Applicant had nothing to add.
9. In his Affidavit, the Applicant alleges that I did not counsel him of the assessment factors but that, rather, I simply told him that I did not think he would be able to find employment in Vancouver and that he could not, therefore, establish himself successfully in Canada. This is untrue. Indeed, I may have counselled the Applicant that I believed, based on the information he had provided to me, that he would face significant difficulty in successfully establishing in Canada but I certainly did not tell the Applicant something so cursory and absolute as ‘I don't think you'll be able to find work in Vancouver and therefore that you will not be able to establish yourself successfully in Canada'. As I have stated, I counselled the applicant of all of the assessment factors in explaining my decision to him. Furthermore, as regards to his ability to establish himself successfully in Canada, my CAIPS notes show that my concerns were centered around the Applicant's complete lack of research and planning as to his anticipated career in Canada.
[35] I should point out that the visa officer was not cross-examined on his affidavit.
[36] I start with the proposition enunciated by MacKay J. in Yu v. Canada (M.E.I.) (1991), 11 Imm.L.R. (2d) 176 at 188-189, where he states:
In my view, there is no ground for arguing unfairness in the process merely because the visa officer at an interview of the applicant does not stress all of the concerns he may have that arise directly from the Act and Regulations that he is bound to follow in his assessment of an application. The Act and Regulations pertinent to admission are available to applicants whose task is to establish to the satisfaction of the visa officer that they meet the criteria set out, and that their admission to Canada would not be contrary to the Act.
[37] At paragraph 56 of her memorandum, counsel for the applicant makes the following submission:
56. In this instance, the officer breached his duty of fairness to the Applicant by simply telling the Applicant what his decision was and the basis for it without providing the Applicant an opportunity to address the concerns of the officer.
[38] Firstly, there cannot have been a breach of the duty of fairness in regard to the Education factor since, as I have already stated, the applicant was given the number of units which his lawyer and consultant had requested. Secondly, with respect to the applicant's writing ability, the visa officer gave the applicant a number of questions to answer in writing, and he assessed the applicant on the basis of those answers. In my view, the visa officer did not have a duty to give the applicant another test. Perhaps the visa officer could have done so, but that was his decision to make, not mine.
[39] With respect to the Personal Suitability factor, I am also of the view that the visa officer did not breach the duty of fairness owed to the applicant. After careful review of the visa officer's affidavit and of his CAIPS notes, I am satisfied that the visa officer made his concerns known to the applicant. The applicant was given full opportunity to respond to the visa officer's questions regarding his chances of successfully establishing himself in Canada.
[40] For these reasons, this application for judicial review will be dismissed.
Marc Nadon
JUDGE
O T T A W A, Ontario
September 5, 2001