Date: 20010615
Docket: IMM-49-00
Neutral Citation: 2001 FCT 661
Ottawa, Ontario, this 15th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ANLI YIN
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
[1] This is an application for judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of Valérie Feldman, visa officer, dated December 6, 1999, denying the applicant's application for permanent residence in Canada under the Independent Category.
Background Facts
[2] The applicant is a citizen of China who submitted an application for permanent residence in Canada to an Immigration Processing Centre in Buffalo, New York on March 6, 1998. He later requested that his file be transferred to Paris, France because he suspected that he would have difficulties obtaining a visa to the U.S.A.
[3] By letter dated June 28, 1999 Immigration Services in Paris invited the applicant and his wife to attend an interview on August 25, 1999. This letter clearly indicated that the presence of his spouse was obligatory and that under no circumstances would an interview be held in her absence. The letter was accompanied with a list of documents that had to be brought to the interview.
[4] The applicant and his wife required visas to travel to France. The applicant indicated by fax on August 10, 1999 that he would attend the interview. However, his wife was unable to obtain a visa in time for the interview. The applicant did not mention that his wife would not be attending and appeared on August 25, 1999 for his interview. The visa officer refused to interview the applicant because his wife was not present. Notwithstanding that the interview did not proceed, the visa officer asked questions regarding his background in order to begin initial background verifications and advised the applicant to obtain a visa for his wife in order to rescheduled an interview. The interview was rescheduled for December 1, 1999 in Paris and as the applicant and his wife were able to obtain visas, the interview was conducted.
[5] The visa officer assessed the applicant under the occupation of Accountant (National Occupation Classification Code 1111) as follows:
Age 10
Occupational Demand 03
Vocational Preparation 15
Experience 06
Arranged Employment or Designated Occupation 00
Canadian Demographic Factor 08
Education 15
Knowledge of English 07
Knowledge of French 00
Personal Suitability 04
TOTAL 68
[6] By letter dated December 6, 1999, the applicant was informed that he failed to obtain the minimum requirement of 70 units of assessment and that he therefore came within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). The visa officer also assessed the applicant as a Financial Manager (NOC 0111) but found that he did not obtain sufficient points in this occupation as well.
Applicant's Submissions
[7] The applicant submits the visa officer erred in fact and in law when she assessed factors which led to the insufficient points. In particular, the applicant submits the officer erred in her assessment of points for personal suitability and for language skills.
[8] The applicant submits that when more than one Education/Training Indicator is identified in the NOC for a given occupation, the Factor 2 "Education and Training" assessment for a university degree level should give 17 points. Moreover, rather than simply reciting a standard list of relevant factors, the applicant contends that the visa officer was required to at least indicate some specific areas of concern which prompted such a low assessment of his personal suitability.
[9] The applicant notes that personal suitability is meant to assess an applicant's motivation, adaptability, resourcefulness, initiatives and other similar qualities that will enable a person to become economically established in Canada: Barua v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 65 (F.C.T.D.). Therefore, according to the applicant, a visa officer should apply a forward-looking element to include the applicant's culture, language and work background in relation to the community needs in Canada. The applicant submits that in such a situation, the visa officer was bound to exercise discretion found in subsection 11(3) of the Immigration Regulations, 1978. Ting v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 238 (F.C.T.D.) is offered in support of the above argument.
[10] Finally, the applicant states that the duty of fairness required the visa officer to advise him of her concerns in order to allow him an opportunity to respond before making a decision. The applicant also cites sections 8 and 11 of the Regulations, and Chapter OP 5 of the Immigration Manual of Citizenship and Immigration Canada.
Respondent's Submissions
[11] The respondent submits the first three heads of the relief sought by the applicant are outside the jurisdiction of this Court because on judicial review, the Court may only quash a decision and send it back for a re-hearing.
[12] The respondent refers to To v. Canada (Minister of Employment and Immigration), (May 22, 1996), Docket A-172-93 (F.C.A.) and Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, for the proposition that this Court should not interfere with the exercise of discretion by a statutory authority if it has been exercised in good faith, in accordance with the principles of natural justice required in the circumstances and where reliance has not been placed upon irrelevant circumstances.
[13] Assessment of personal suitability should be accorded a high degree of deference as it is a finding of fact. As apparent from the visa officer's CAIPS notes and affidavit, she had regard to a number of considerations in assessing the applicant's adaptability, motivation, initiative and resourcefulness. She considered the applicant's lack of preparation, motivation and initiative. The respondent submits that there was a lack of evidence as to the applicant's ability to adapt to the new living and working environment he would face in Canada.
[14] The respondent submits the visa officer clearly discusses her assessment of the applicant's language abilities in her CAIPS notes and affidavit and further submits her finding on this issue is one of fact within the scope of her expertise.
[15] The respondent submits the that duty to advise is not an issue in this application for judicial review, but states the general proposition that a visa officer is not required to put before an applicant tentative conclusions she may be drawing from the material: Bara v. Canada (Minister of Citizenship and Immigration), (July 6, 1998) IMM-3286-97 (F.C.T.D.).
Relevant Statutory Provisions
[16] The relevant provisions of the Immigration Act state:
| 19.(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: . . . (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations. |
19.(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_: . . . d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. |
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[17] Subsection 11.(3) of the Immigration Regulations, 1978, SOR/78-172 states:
| 11.(3) A visa officer may (a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or (b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10, if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer. |
11.(3) L'agent des visas peut a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10, s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier. |
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[18] Schedule I of the Immigration Regulations, 1978 states:
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Column I Factors |
Column II Criteria |
Column III Maximum Units |
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. . . |
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8. Knowledge of English and French Languages |
(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, 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. (2) For the second 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, two credits shall be awarded for each ability; (b) for an ability to speak, read or write well but not fluently, one credit shall be awarded for each ability; and (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. (b) for two to five credits, two units; and (c) for six or more credits, one unit for each credit. |
15 |
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9. Personal Suitability |
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 dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities. |
10 |
[19] Issues
1. What is the standard of review to be applied to the visa officer's decision?
2. Did the visa officer err in her assessment of the applicant's language abilities?
3. Did the visa officer err in her assessment of the applicant's personal suitability?
4. Did the visa officer make a reviewable error by only showing the applicant's assessment as an Accountant (National Occupation Classification Code 111) when the applicant had stated his intended occupation to be Financial Management (related to accounting)?
Analysis and Decision
[20] Issue 1
What is the standard of review to be applied to the visa officer's decision?
In light of the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, I am of the view that the standard of review to be applied to the visa officer's decision is that of reasonableness simpliciter. I base this conclusion on the following analysis:
1. There is no privative clause and there is no requirement that leave be granted before a judicial review can proceed (see subsection 82.1(2) of the Act and section 18.1 of the Federal Court Act). These facts suggest a lower level of deference.
2. The decision maker in this case is an immigration officer, as designated by the Minister pursuant to subsection 109(2) of the Act. Because this immigration officer is stationed outside of Canada, she is referred to as a visa officer. A visa officer processes visa applications on a regular basis and has considerable expertise in this area. These factors suggest greater deference to a visa officer's decision.
3. Under section 11 and Schedule I of the Immigration Regulations, 1978, the visa officer must determine whether or not the applicant qualifies to obtain a visa to enter Canada. A visa officer has considerable discretion but he or she must be guided by Schedule 1. In my view, this suggests that the visa officer's decision is entitled to greater deference by the Court, but not total deference.
4. The nature of the problem in this case is the determination of facts and the application of these facts to the regulatory guidelines. Thus, the question is one of mixed fact and law and as such, a level of deference akin to reasonableness simpliciter is appropriate.
For these reasons, the standard of review of the visa officer's decision will be reasonableness simpliciter.
[21] Issue 2
Did the visa officer err in her assessment of the applicant's language abilities?
The visa officer's CAIPS notes contain the following:
Spoken English - Subject speaks between well and fluently will give benefit of the doubt and give English fluently for spoken.
Written English - Written sample on file, many errors can only give well at best.
Reading English - Short reading test given at interview, subject had great difficulty, states is nervous, again will lean upwards and give him well for reading.
The above is the visa officer's assessment, as found in her CAIPS notes, of the applicant's English. As a result of this assessment, the applicant received seven units for knowledge of the English language (spoken English three credits, written English two credits and reading English two credits). The applicant indicated in his application form and at the interview that he functioned in French with difficulty. This resulted in zero units of assessment for the French language. I am of the opinion that the decision of the visa officer to award seven units of assessment in the language category was reasonable.
[22] Issue 3
Did the visa officer err in her assessment of the applicant's personal suitability?
The visa officer awarded the applicant four units of assessment out of a possible ten units for personal suitability. The visa officer considered the applicant's lack of preparation for the move to Canada and that he only had a vague knowledge of Canada. She also considered the fact that the applicant was somewhat vague with respect to a job offer. The decision of the visa officer to award four units of assessment for personal suitability was reasonable. It is not the role of the Court to substitute its opinion for that of the visa officer in these circumstances.
[23] Issue 4
Did the visa officer make a reviewable error by only showing the applicant's assessment as an Accountant (National Occupation Classification Code 111) when the applicant had stated his intended occupation to be Financial Management (related to accounting)?
In the refusal letter, the visa officer stated that the applicant was assessed on the occupation: Accountant (National Occupation Classification Code 111) whereas the applicant's intended occupation on his application was Financial Management (related to accounting Code 0111.0). The applicant raised this as an error on the part of the visa officer at the hearing. This ground was not alleged in the application for judicial review or in the applicant's memorandum of fact and law. In my view, all grounds of error should be raised either in the application or the memorandum. I will, however, deal with the alleged error.
[24] There is no doubt that the applicant is entitled to be assessed in his intended occupation. The CAIPS notes, however, show that the applicant was assessed in his intended occupation. Additionally, the visa officer states in her affidavit that the applicant was assessed in his intended occupation (National Occupation Classification Code 0111.0). The visa officer did not include a schedule of the units of assessment awarded to him in the intended occupation. Based upon the submissions of counsel for the applicant at the hearing of this judicial review, I would be inclined to hold that it is an error not to include a schedule of the units of assessment for the applicant's intended occupation. However, I note that counsel for the respondent was not completely prepared to argue this issue as it had not been raised beforehand. Consequently, I may hold otherwise if this issue is properly raised and argued before me in the future. At any rate, I am of the opinion that the failure to include a schedule of the units of assessment in the case at bar does not amount to a material error. The applicant questioned the visa officer's assessment of his personal suitability and language ability. In my view, the units of assessment awarded for these two factors would be the same for either occupation, and I have already found that the assessment of these factors was reasonable.
[25] The applicant argued that the visa officer should have exercised her discretion pursuant to subsection 11(3) of the Regulations and further, that the visa officer should have advised the applicant of her concerns so that the applicant could reply to the concerns. I find no merit in either of these arguments.
[26] The application for judicial review is dismissed.
[27] Neither party wished to certify a serious question of general importance.
ORDER
[28] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
June 15, 2001