Date: 20040625
Docket: IMM-1667-03
Citation: 2004 FC 917
OTTAWA, ONTARIO, THIS 25TH DAY of JUNE, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
RAIMONDAS MALINAUSKAS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] In 2001, Mr. Raimondas Malinauskas, the Applicant, a citizen and resident of Poland, applied for permanent residence in Canada. The Applicant is a qualified Remedial Gymnast (NOC 3144) and sought to pursue this occupation in Canada.
[2] On February 13, 2003, the Applicant was interviewed by a Visa Officer at the Canadian Embassy in Warsaw, Poland. The Visa Officer awarded the Applicant 69 points, one short of what is needed for a successful application. Of significance to this application, the Applicant received 0 units for _English_ and 5 units for _Personal Suitability_.
[3] In his decision dated February 14, 2003, the Visa Officer wrote that, because the Applicant could only speak, read and write English with difficulty, no points could be awarded under the English language factor. Further, the Applicant was only awarded five units of assessment for personal suitability, which is based on an assessment of an applicant's demonstrated motivation, resourcefulness, initiative and adaptability.
[4] The Applicant seeks judicial review of this decision.
Issues
[5] The Applicant raises two issues:
1. Did the Visa Officer err in his assessment of the Applicant's ability to write English?
2. Did the Visa Officer err in law by considering under two factors-A.R.E. and Personal Suitability-the Applicant's inability to secure a job offer?
Analysis
Standard of Review
[6] The standard of review applicable to the decision of the Visa Officer is that which was articulated in Maple Lodge Farms Ltd. v. Canada,[1982] 2 S.C.R. 2 at 7-8 and followed by the Federal Court of Appeal in Chiu Chee To v. Canada, [1996] F.C.J. No. 696 (C.A.) (QL) at para. 3. The Applicant's application for an immigration visa involves a discretionary decision that has to be made on the basis of specified regulatory criteria. If this statutory discretion has been exercised in good faith and in accordance with the principles of natural justice where required, and if reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, then this Court should not intervene (To,supra).
Issue #1: Did the Visa Officer err in his assessment of the Applicant's ability to write English?
[7] Schedule 1, Column II of the Immigration Regulations, 1978 sets out how points are to be calculated for language proficiency. For an ability to speak, read or write well but not fluently, two credits are to be awarded for each ability. Units of assessment are then awarded based on the number of credits received. Zero credits translates to zero units. Two to five credits equals two units.
[8] In this case, the Visa Officer apparently concluded that the Applicant was unable to speak, read or write well but not fluently and awarded him zero credits for each of these abilities. Had the Applicant possessed any of these abilities at the _well but not fluently_ level, he would have been awarded two units and would have acquired enough points for a successful application.
[9] The Applicant does not dispute the Visa Officer's conclusion with respect to his speaking and reading abilities. However, the Applicant asserts that the Visa Officer did not address his mind to the Applicant's ability to write and that, therefore, his decision is perverse. I do not agree.
[10] In the CAIPS notes, the Visa Officer wrote:
English: Subject has obviouos (sic) difficulty speaking English. My questions had to be rephrased, repeated using very simple language. Assessed as with difficulty. Believe sufficient level of communication achieved only through my efforts to rephrase and repeat questions slowly using very simple language. Reading: subject given article from the Commissioner of Official Languages Buletin (sic) to read and discuss. Artilce (sic) is about use of both official languages in Canadian air transport. Subject stated that article was about quote about air company unquote. Assessed as with difficulty.
Writing: subject requested to write about a book he had recently read. Given 5 minutes to complete task. Sample on file.
***
Advised subject of my concerns regarding his abilities in English and gave opportunity to respond and provide additional information. Subject stated that he will learn English.
[11] The Visa Officer did not ignore the writing aspect of the assessment. His notes directly state that a writing sample was on file. In addition, a review of the writing sample provided by the Applicant amply supports the Visa Officer's conclusion that he has difficulty in writing English. In particular, the sample of writing provided by the Applicant shows that, in five minutes, he was able to compose only two sentences which were replete with spelling and grammatical errors. An assessment of writing quality within the discretion of the Visa Officer. Although his conclusion is stated in terms of the Applicant's abilities in English and does not separately address the three components, I am satisfied that the Visa Officer turned his mind to all three components and that his conclusion with respect to writing ability, as well as the ability to speak and to read English, was open to him on the evidence.
Issue #2: Did the Visa Officer err in law by considering under two factors--A.R.E. and Personal Suitability--the Applicant's inability to secure a job offer?
[12] The Applicant was awarded 5 units out of a possible 10 units under the factor of personal suitability. According to Schedule 1, Column II of the Immigration Regulations, 1978, a visa officer is supposed to consider a person's ability to become established in Canada based on _the person's adaptability, motivation, initiative, resourcefulness and other similar qualities._ The Applicant alleges that the Visa Officer erred in law by considering his failure to obtain a job under both this factor and factor 5, which deals with arranged employment. This is what occurred in Zeng v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 167, where the Federal Court of Appeal held as follows:
The multitude of conditions which must be met to require the award for arranged employment need not be recited. The point is that this, too, is provided for by the Regulations. Failure or refusal to arrange employment result in the applicant not being awarded 10 points; it is not a proper exercise of discretion, in assessing an applicant's personal suitability, to take that failure into account a second time and the learned trial judge erred in holding that to do so was simply inappropriate. It was wrong. Furthermore, none of linguistic accomplishment, arranged employment and family circumstances are "similar qualities" to the qualities required to be taken into account under Item 9.
[13] The Applicant submits that the Visa Officer made the precise mistake that the Federal Court of Appeal dealt with in Zeng, supra. I do not agree.
[14] The portion of the CAIPS notes that deal with personal suitability read as follows:
Personal Suitability:
Subject states that has looked for employment possibilities (sic) in CDA through the Internet (sic). States that has searched in www.workopolis.ca and provided printouts however, none refer to occupation of remedial gymnast. Printouts show job offers as physiotherapist, massage therapist and fitness trainer. I have searched workopolis and found no offers for this occupation. Subject stated that he did not find any employment offers for remedial gymnasts, however, knows that his job is in demand.
[15] In my view, the comments of the Visa Officer pertain to the Applicant's ability to conduct an effective job search. The term _job offer_ is used in the aforementioned passage in a way that is analogous in meaning to _job posting_. The entire passage seems to be about an internet job search that the Applicant conducted and the printouts generated from that search, which he presented to the Visa Officer. The Visa Officer was not taking failure to find a job into account, as was the case in Zeng, supra, but was assessing the Applicant's motivation or resourcefulness.
[16] The ability of the Applicant to find job postings for his occupation is, to my mind, an indicator of resourcefulness which is a valid consideration under the factor of personal suitability. For these reasons, I do not think that double-counting occurred.
Conclusion
[17] Applying the mandated method of calculation to the findings the Visa Officer made, I see no error. The Visa Officer considered the relevant factors and calculated the Applicant's units of assessment accordingly.
[18] The application for judicial review will be dismissed.
[19] Neither party submitted a question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
2. There is no question of general importance for certification.
_Judith A. Snider_
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1667-03
STYLE OF CAUSE: RAIMONDAS MALINAUSKAS v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 23, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Justice Snider
DATED: June 25, 2004
APPEARANCES BY:
Mr. Max Chaudhary FOR APPLICANT
Mr. Marianne Zoric FOR RESPONDENT
SOLICITORS OF RECORD:
Chaudhary Law Office FOR APPLICANT
North York, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario