Date: 19981007
Docket: IMM-4616-97
BETWEEN:
ALBERT LOMINADZE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
SECRETARY OF STATE
Respondents
REASONS FOR JUDGMENT
McGILLIS, J:
[1] The applicant has challenged by way of judicial review the decision of a visa officer in which she refused his application for permanent residence in Canada. The principal question to be determined on this application is whether the visa officer erred in awarding the applicant "00" points for his English language ability. The applicant is a national of Georgia, currently residing in Russia, He is a highly educated engineer who speaks the Russian language.
[2] There is conflicting evidence in the record concerning the applicant's ability in the English language.
[3] The applicant's former lawyer filed an affidavit in support of the application for judicial review in which she deposed, among other things, that she had always interviewed the applicant in English, without the assistance of an interpreter. She characterized his English as "not fluent", but "more than functional." She further noted that the applicant had been interviewed by the Royal Canadian Mounted Police in English, in her presence and without an interpreter, concerning unscrupulous immigration consultants. Finally, she noted that she had acted for the applicant for four years "...in English alone without difficulty", and that she was "astounded" that he had been awarded "00" points for his ability in the English language. Counsel for the respondent did not cross-examine the applicant's former lawyer on her affidavit.
[4] In her affidavit, the visa officer indicated that, on February 19, 1997, the applicant's English was "insufficient" for a normal interview. As a result, she required him to return for a further interview, accompanied by an interpreter. At the further interview on April 17, 1997, the applicant used the services of the interpreter, and the visa officer advised him that he would not be awarded any units of assessment for the factor of English. The visa officer appended as an exhibit to her affidavit the CAIPS notes concerning the applicant's application for permanent residence. In those notes, the visa officer recorded that, during the interview on April 17, 1997, the applicant spoke "a little English." Her notes also indicated, in an entry dated September 12, 1997, that the applicant's file had been inadvertently "put away", and that the refusal letter had not been sent.
[5] The certified copy of the materials filed by the tribunal on the application for judicial review also contained the CAIPS notes. However, the first page of those notes, which was not included by the visa officer in the exhibit to her affidavit, contained two columns of units of assessment awarded to the applicant by her on September 12, 1997. The notes indicate that, in the first column, the visa officer awarded the applicant "02" points for his ability in the English language. However, in the second column, the units of assessment for English were changed to read "00."
[6] Having considered the evidence in its totality, I have serious concerns in relation to the reliability of the visa officer's award of "00" units of assessment for English, particularly in light of the unchallenged evidence from the applicant's former lawyer concerning his ability to communicate in the English language. Furthermore, the entry in the CAIPS notes, indicating that the visa officer had awarded "02" units for English in one of the two columns outlining the factors for assessment, remains unexplained and uncontroverted. In the circumstances, I am satisfied, on the basis of the evidence in the record, that the visa officer's purported assessment of the applicant's ability in the English language is inherently unreliable, and patently unreasonable.
[7] Prior to closing, I feel compelled to comment on the inadequate memorandum of fact and law filed by counsel for the applicant. During the course of the hearing, counsel for the applicant submitted that the visa officer had improperly exercised her discretion by considering the applicant's lack of ability in English in the assessment of his personal suitability. He also submitted that the visa officer had erred in failing to address the applicant's ability to read and understand English. Unfortunately, counsel for the applicant had prepared a very brief memorandum of fact and law in which he completely failed to plead either of those substantial issues. In the circumstances, I upheld the objection of counsel for the respondent, and refused to allow counsel for the applicant to raise those issues at the hearing.
[8] The application for judicial review is allowed with costs. The decision of the visa officer dated September 12, 1997 is quashed and the matter is remitted to a different visa officer for review and reconsideration. The case raises no serious question of general importance.
"D. McGillis"
Judge
TORONTO, ONTARIO
October 7, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4616-97
| STYLE OF CAUSE: ALBERT LOMINADZE |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
SECRETARY OF STATE
DATE OF HEARING: TUESDAY, OCTOBER 6, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McGILLIS, J.
DATED: WEDNESDAY, OCTOBER 7, 1998
APPEARANCES: Mr. Rocco Galati
For the Applicant
Mr. Jeremiah A. Eastman
For the Respondent
SOLICITORS OF RECORD: Rocco Galati
Barrister & Solicitor
637 College Street, Suite 203
Toronto, Ontario
M6G 1B5
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981007
Docket: IMM-4616-97
Between:
| ALBERT LOMINADZE |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
SECRETARY OF STATE
Respondents
REASONS FOR JUDGMENT