Date: 19980226
Docket: IMM-817-97
Ottawa, Ontario, this 26th day of February 1998
Present: The Honourable Mr. Justice Marc Noël
Between:
Yang YANG,
Applicant,
-and-
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is dismissed.
Marc Noël
Judge
Certified true translation
C. Delon, LL.L.
Date: 19980226
Docket: IMM-817-97
Between:
Yang YANG,
Applicant,
-and-
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MR. JUSTICE NOËL
[1] The applicant is seeking judicial review of the decision of a visa officer rejecting his application for permanent residence.
[2] The applicant was born in December 1947 in Kunming, China, and is a Chinese citizen. He is married and has one daughter who is currently studying in Boston. He is a graduate of the Kunming Institute of Technology and obtained his master of science degree from Yunnan University in 1987. From 1987 to 1991, he was a researcher and lecturer in chemistry at the Southwest Forestry College in Kunming. From 1991 to 1993, he worked as a visiting researcher at the École polytechnique fédérale in Zurich. In 1993, he secured a position as researcher and assistant professor in the biology department at Yunnan University. From November 1994 to August 1995, he was a visiting professor at the Massachusetts Institute of Technology. He is currently living in Boston where he gives private lessons in mathematics and sciences to secondary school students.
[3] The applicant applied for permanent residence at the Consulate General of Canada in New York. The applicant's interview was held on January 21, 1997.
[4] The visa officer assessed the applicant's application and awarded him the following points:
| Age |
02 |
| Occupational demand |
01 |
| Specific vocational preparation |
18 |
| Experience |
08 |
| Arranged employment or designated occupation |
00 |
| Demographic factor |
08 |
| Education |
16 |
| Knowledge of English |
00 |
| Knowledge of French |
00 |
| Relative |
05 |
| Personal suitability |
06 |
| TOTAL |
64 |
[5] Since the applicant did not obtain the required number of points (i.e. 70 points), his application was rejected.
[6] The applicant contends that the assessment of his English language skills is unreasonable. He notes that the interview was held in English and lasted about sixty minutes. He says that he was able to describe his work experience in detail at the interview, and that the visa officer's affidavit exaggerates the difficulties he had in expressing himself in English.
[7] The applicant explained that after his interview with the visa officer, he wrote the TOEFL (Test of English Foreign Language) and obtained a mark that demonstrates superior comprehension of English.
[8] The applicant noted that because of his alleged weakness in oral English, the visa officer did not give him an opportunity to demonstrate his ability to read and write English. According to the applicant, the TOEFL test results contradict the immigration officer's assessment. This means that the officer committed an error of law by denying the applicant the opportunity to take the reading and writing language test.
[9] The respondent cited the principle that the burden of satisfying the immigration officer that his admission to Canada would not be contrary to the Immigration Act and to the Immigration Regulations, 1978 (the "Regulations") rests on the applicant.
[10] Paragraph 8(1)(a) of the Regulations provides that the applicant had to be assessed on the basis of the factors listed in column I of Schedule I to the Regulations. One of those factors is "knowledge of English and French languages". Credits are given under this heading for oral expression, reading and writing, on the following scale:
| (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; |
| (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 two to five credits, two units; and |
| (c) for six or more credits, one unit for each credit. |
[11] With respect to the applicant's ability in the English language, the visa officer states in his affidavit:
| 8. The interview was done in English and was extremely laborious. As a result of the great difficulties encountered by the Applicant in communicating in the English language, the interview went on for a full hour instead of the usual thirty (30) minutes; |
| 9. Very often, I would have to repeat my questions slowly, the same for the Applicant which had to repeat his answers slowly so I could understand him; |
| 10. Many times, I had to give up trying to obtain an answer since he could not understand the meaning of my questions, even after I had repeated them two or three times; |
| 11. His vocabulary was very limited and he had difficulty forming complete sentences. Most of the details concerning his education and work experience were taken from the documents and letters of reference that the Applicant presented at his interview. I attempted to validate with the Applicant the information contained in these documents, doing most of the talking and letting him answer negatively or positively to my verifications, often the Applicant could not answer and even when the Applicant responded, I could not ascertain whether he really understood my questions; |
| 12. I determined that the Applicant"s abilities in English were at the "with difficulty" level for speaking, writing and reading. It is to be noted that in response to question no.13 of his Application Form, the Applicant classified his abilities in English at the "fluently" level. In the course of the interview, I had no choice but to progressively downgrade his assessment to the "well" level, then to the "with difficulty" level; |
| 13. I did not give him a written test because it is my experience that when the spoken English is at the said level, the person is unable to understand what is dictated and thus to write it in a comprehensible fashion and always fail the test. I was convinced that the Applicant would have major difficulties understanding what I would dictate and that he would not be able to write in a comprehensible manner; |
| 14. I did not give the Applicant a reading test either because it would have required from the Applicant to be able to read a text and then explain the meaning to me in an understandable and accurate way. It was my judgment that he was unable to do that since he could only have with me a very limited conversation; |
| 15. During the entire course of the interview, I have tried to show good care by giving the Applicant a fair opportunity to demonstrate his abilities in the English language which have shown to be very weak. |
[12] The TOEFL test was taken some time after the interview, so that in my view it is of no relevance. In any event, that test does not assess spoken language, which is where the applicant failed at the interview.
[13] I have no reason to question the summary of the interview given by the visa officer in the affidavit quoted above.
[14] However, in light of the applicant's academic background, I am not satisfied that the visa officer could reasonably have assumed that his ability to read and write English was at the same level as his spoken English. In my view, it would have been preferable for the officer to have allowed the applicant to demonstrate his capacity to read or write, as contemplated by factor 8. However, there is no reason to intervene in this respect, since even if the applicant were awarded the maximum points for each of these items, the total credits would still be below the minimum required.
[15] For these reasons, the application for judicial review is dismissed.
Marc Noël
Judge
OTTAWA, ONTARIO
February 26, 1998
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-817-97
STYLE OF CAUSE: Yang YANG v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 18, 1998
REASONS FOR ORDER OF MR. JUSTICE NOËL
DATED: February 26, 1998
APPEARANCES:
Pierre Masson FOR THE APPLICANT
Claude Provencher FOR THE RESPONDENT
SOLICITORS OF RECORD:
Pierre Masson FOR THE APPLICANT
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada