Date: 20000328
Docket: IMM-2709-99
BETWEEN:
JATINDERPAL SINGH ARORA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of, and an order setting aside a decision dated April 7, 1999 by an immigration officer at the Canadian High Commission, New Delhi, who determined that the applicant did not qualify for admission for permanent residence in Canada in the independent category pursuant to s-s. 8(1) of the Immigration Regulations, 1978 and s-s. 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 as amended.
[2] The application was heard in Vancouver on March 17, 2000 when counsel for the applicant and counsel for the respondent Minister were heard and decision was then reserved. After consideration of submissions then made, an Order goes dismissing the application for the following reasons.
[3] The applicant sought admission to Canada as a permanent resident, having made application in the independent category, proposing to follow his craft as a tool and dye maker in Canada. He was interviewed by a visa officer at the Canadian High Commission in New Delhi. Following the interview the visa officer assessed him in two categories of possible employment, as a tool & die maker, and as a mould maker, classifications of employment used for assessment of prospective immigrants by the Minister's department. In each of those categories he was assessed a total of 66 points, less than the 70 required for a visa as a permanent resident.
[4] The applicant contests that assessment, in particular the points assigned for capacity in the English language and for suitability of the applicant. For the former factor he was assigned six points of a possible total of nine for his capacity in English, of the maximum 15 for both official languages. For the latter factor, personal suitability, he was assigned five points of a possible total of ten.
[5] The applicant's affidavit sets out that the interview was conducted in English; it took less than 30 minutes, that the visa officer had not indicated difficulty in understanding the applicant, and the latter had no difficulty understanding the visa officer. The applicant avers that he was not asked to read or to write English, a language he studied to grade 12 and in which he had completed his technical courses. He believes that he is fluent in English.
[6] For calculation of language credits by visa officers, departmental guidelines provide for the addition of points assigned to reading, writing and speaking, each to be graded as "fluent", "well" or "with difficulty"; those grades are then to be assigned 3, 2 or 1 points, respectively.
[7] Here the applicant was assessed in his capacity or proficiency for use of the English language, as the first of the official languages of Canada assessed. He was assigned six of the maximum of nine points for one of our official languages. Since he claimed no capacity in our other official language he was not assessed for French language capacity.
[8] In cross-examination of the visa officer on his affidavit, when asked to define the terms "fluent" and "well" as grades for language proficiency the officer made reference to the definitions from the Oxford dictionary, which, it was submitted by counsel for the applicant, do not appear to distinguish perceptibly between the two as possible grades. Moreover, it is urged that the visa officer's approach to assessing language capacity was to insist upon perfection before a grade of "fluent" could be assigned, and by so doing he fettered his discretion.
[9] In regard to the assessment for personal suitability, while the respondent urges the grade assigned was within the average grades of 5-7 points assigned for this factor, the applicant avers by his affidavit that he was not asked in his interview anything about employment possibilities in his trade in Canada nor was he asked any question concerning his knowledge of Canada.
[10] It was urged on the applicant's behalf that had he been properly assessed for language proficiency as "fluent" he would have received the maximum of nine points, and if this were taken into account in considering his personal suitability, for that factor he should have received at least one more point. The additional four points, urged to be a proper assessment, would then meet the minimum assessment for a prospective permanent resident.
[11] By affidavit of the visa officer it is averred that the applicant was assessed in relation to speaking, reading and writing English as doing "well" but not "fluently" in each use of the language. The officer did refer to dictionary definitions of the words "fluently" and "well", but he also indicated with reference to the applicant's demonstrated writing ability why the assessment assigned was less than "fluently". He also assessed the applicant's reading ability as "well" after asking him to read a portion of the application form. The suggestion that the officer expected perfection before assigning a grade of "fluently" for English language proficiency is not borne out by any evidence.
[12] The assessment by the visa officer for each of the factors to be considered is an exercise of discretion, acting within the regulations and the guidelines developed in the Minister's department. That is the case in the assessment of both language proficiency and personal suitability. In relation to the latter factor, there is no basis for the officer considering facility with the English language as an element to be assessed. In short, whatever assessment is assigned for language proficiency it is not "double-counted" by also considering it as an element of personal suitability, for which the officer assigned an average grade. The officer explains that grade in his affidavit by reference to the lack of any basis demonstrated by the applicant that he should be assessed more highly than other applicants for motivation, adaptability, resourcefulness or initiative.
[13] In Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2 at pp. 7-8, McIntyre J., for the Supreme Court of Canada, wrote:
| ...it is...a clearly established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere... |
[14] That principle is here applicable. There is no suggestion of bad faith on the part of the Minister or the visa officer acting on her behalf and no basis for finding any denial of natural justice. The decision made was within the discretionary authority of the visa officer. To warrant its intervention the Court must be satisfied that the visa officer's decision was patently unreasonable in the sense as described by s. 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, that is that the decision is perverse or capricious or made without reference to the evidence before the decision maker. That is not the case here.
[15] For these reasons an Order goes dismissing the application for judicial review for an order setting aside the impugned decision.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
March 28, 2000