Date: 19990830 Docket: IMM-3808-98
OTTAWA, ONTARIO THIS 30 `h DAY OF AUGUST, 1999 PRESENT: THE HONOURABLE MR. JUSTICE F.J. McDONALD
BETWEEN:
YAOZHONG SHEN
Applicant
-and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
ORDER AND REASONS FOR ORDER
McDONALD J. A.
[1] The applicant is a citizen of China. He is seeking judicial review of a decision of a visa officer. dated July 2, 1998. refusing his application for permanent residence on the ,-rounds that he was a member of the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act' (the "Act''). The applicant failed to meet the selection
R.S.C. 1985, c. 1-?. as amended.
Page: 2
criteria established for Independents pursuant to subsection 8(1) of the Immigration Regulations, 1978 (the "Regulations").~
[2] The relevant portions of the decision of the visa officer read as follows:
I have assessed you in the occupation Electronic Engineer NOC'_ 133.0. for which you earned the followine units of assessment:
| Aae |
10 |
| Occupational Demand 'Regulation 11(21; |
|
| Education, Training Factor |
1., |
| Experience (Regulation I 1(1)l |
0 |
| Arranged Employment |
0 |
| Demographic Factor |
8 |
| Education |
1 |
| English |
|
| French |
0 |
| Assisted Relative Bonus |
0 |
| Personal Suitability |
4 |
| Total |
61 |
I consider the units of assessment that you have been awarded are an accurate assessment of your ability to successfully establish in Canada. Because you cannot meet the selection criteria established for Independents, you are a member of the class of persons who are inadmissible to Canada described in paragraph 19(2)(d) of the Immigration Act and I have refused your application. I have attached copies of the legislation referred to in this letter for your reference.
The applicant submits that the visa officer erred in her assessment with respect to the
following four criteria: (a) Personal Suitability (4/10); (b) English (2/15)-. (c) Occupational Factor (5110); and (d) Experience" (0/8).
Discussion
[4] It is clear that a decision of a visa officer on an application for permanent residence is a discretionary decision requiring the visa officer to determination on the basis of
- SORl78-172 as amended.
Page:
specified statutory criteria. The standard of review of such decisions is well established. In
To v. Canada(Minister of Employment and Immigration) Stone J.A. said the following:'
... the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In.t1laole Lodge ,arms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2. at pages 7-8, Mcintvre J. stated for the Court:
It is, as well. 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 e_rercised 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 e-rtraneous to the statutory purpose, the courts should not intervene.
[emphasis added]
[5] The standard of review has also been described in the following terms:
... to succeed, the applicant must establish that the visa officer erred in his interpretation of the Act or Regulations and consequently failed to carry out the assessment required of him, or, alternatively, that in assessing the applicant, he failed in his duty of fairness.
[61 Accordingly. the central issue to be determined is whether the visa officer -.:-red in her assessment of the four criteria disputed by the applicant in such a manner as to warrant intervention. In other words, did the visa officer exercise her discretion in bad faith, in reliance upon extraneous or irrelevant considerations or in a manner which does not accord with the Act, the Regulations or the principles of fundamental justice.
3 To v. Canada (Minister of Employment and Immigration), (22 May 1996), Court File A-172-93 i F.C.A.).
Ho v. Canada(Minister of Employment and Immigration) (1994), 88 F.T.R. 146 at 149. See also. 14 ang (L.) v. Minister of Employment and Immigration (1988), 23 F.T.R. 257 at 260-61.
Page: 4
i. Language Ability
[7] under Factor 8 of Schedule I of the Regulations, a visa officer is required to assess
the competence of an applicant in each of the official languages on the following basis:
(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.
(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.
[8] In his application, the applicant claimed that he spoke English well, read fluently and
wrote well. He made no claim regarding his ability to speak. read or write in French.
[9j
In the Guide for Inciependent Applicants, "fluent'', '-well" and `with diftîcuitv" are
defined as follows:'
Fluent: very good command of the language in a range of social and work situations, and no difficulty communicating in a professional capacity
Well: can communicate reasonably well about personal and familiar things
With difficulty: can speak/read/write just a few basic words
5 .application for Permanent Residence in Canada: Guide for Independent Applicants (Ottawa: Immigration Canada, 1998) at 12.
Paae: 5
[10] The visa officer made the following notes at the interview: °
PA (Principal Applicant/ had constant comprehension problems throughout interview and would have been completely unable to cope with interview questions had it not been for spouse's constant assistance and prodding. PA was given a writing exercise, but clearly he did not understand the question and wrote something he had memorized for the purpose of the interview. Many of PA's answers are taken down verbatim in my handwritten notes on file ... and these were gibberish. ... Tried several times to have PA describe to me what he did last week at work: His answer "Help customers to design application, water providers for every famiiy to caiculate because digital, research integrated circuits. basic..." .... PA speaks W/D [With Difficulty]. Therefore only awarded him two units.
[emphasis added]
[11] From this assessment of the applicant's performance during the interview and a review of the his writing sample.' it is clear that the applicant does not read. write or speak English fluently. Similarly, it is clear from the difficulty experienced by the applicant in responding to questioning by the visa officer that he is unable to speak "reasonably well about personal and familiar things". It was clearly reasonable for the visa officer to find that the applicant spoke "with difficulty".
[12] If it is assumed that the applicant reads and writes "well", the applicant would receive a maximum of four language credits (two each for reading and writing "well". 0 for speaking "with difficulty") pursuant to subsection (1) of Factor 8 of Schedule I to the Regulations. Therefore, applying the formula prescribed by subsection (3), the applicant would re receive two points for receiving between two and five "language credits". The visa officer awarded
6 Certified Record at 76-7. Ibid.. at 16.
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the applicant two points in her assessment. Accordingly, the visa officer did not commit a reviewable error.
ii. Personal Suitability
[13] "Personal Suitability" is described in Factor 9 of Schedule I to the Reguiations as follows:
Units of assessment shall be awarded on the basis of an intervies;v with the person to refleathe personal suitability ofthe person and his dependants to become successfullv established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities.
[14] An assessment of "Personal Suitability", therefore requires the consideration of four factors: (1) motivation; (2) adaptability; (3) initiative; and (4) resourcefulness. Each of these factors is to be considered in the context of an applicant's potential to become successfully established in Canada. Furthermore, it has been noted by this Court. that those factors not specifically addressed in other selection criteria prescribed in Schedule I of the Regulations are to be considered under this heading.'
[15] In the case at bar, the visa officer made the following notes with respect to the
applicant's Personal Suitability:9
PS [Personal Suitability] for PA [principal applicant] is low since he has not taken any initiative to read CCPE material explaining licensing procedure for Prof Engs in Cda. PA knew nothing of this Req. PA thought it would be easy, even at his age, to get ajob as an engineer in Cda because he has many friends there and "have well education.
Ho, supra at 15 1.
Certified Record at 77.
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experience". When asked how he would find a suitable job, PA answered that his friends would find him work. PA plans to go alone without his -English speaking wife. Cannot settle successfully.
[16] From this, it is seems that the visa officer was assessing the applicant's initiative and resourcefulness on the basis of his efforts to secure information about what would be required to obtain a job in Canada. It is also reasonable to infer that the visa officer considered that the applicant would not be very adaptable given his limited competence in English, as evidenced by the apparent significance she placed on the fact that the applicant's wife, who spoke English. was not coming to Canada. The applicant argues that these considerations are improper and irrelevant to an assessment of his Personal Suitability. Furthermore, he submits that the visa officer has "double-counted" his competence in the English lanauaae.
The judgment of this Court Stcran.' ° provides f'sll ansvizr to the arguments of 'he
applicant. In that case, Simpson J. held that:"
... It was certainly relevant in an analysis of the Factors [to be considered under Personal Suitability] to consider whether the applicant had made any inquiries about the requirements for using her civil engineering in Canada, and it was also relevant to consider whether she had taken the computer training needed to practise her profession in this country.
Similarly, the applicant was given points for her language ability, or to put it another way, her level of competence. The Officer then looked at her language training regime and concluded from her slow learning pace that she was not very adaptable. Again this analysis was error free. What must be seen in an analysis under personal suitabiliti,
io Stefan v. Canada(Minister of Citizenship and Immigration) (1995), 35 Imm. L.R. (2d) 21.
11 Ibid. at 23-24.
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is an assessment focussed on the four Factors and not on the skill level already recognized in other parts of the assessment.
Finally, I do not consider a knowledge of Canada to be an extraneous factor. It was reasonable to infer that someone who wanted to bring her family here, but had not taken the trouble to learn something of Canada, lacked the initiative and resourcefulness necessary for successful establishment in this country.
[emphasis added]
I agree with this approach.
[18] It is both relevant and reasonable that the visa officer considered that the applicant's lack of initiative in making inquiries as to the qualifications necessary to work as an engineer in Canada was detrimental to his chances of successfully establishing himself in Canada. Furthermore, it is reasonable to conclude, in light of the visa officer's assessment of the applicant's competence in English, that the applicant was not very adaptable.
[19] The visa officer's assessment of Personal Suitability was open to her on the record. She did not exercise her discretion improperly in this regard.
iii. Alternative Occupations/Consideration of his Spouse
[20] It is well established that a visa officer has a duty to consider alternative occupations available to an applicant when assessing an application for permanent residence.:' Nonetheless, this duty does not appear to extend to assessing occupations which are not
12 See for example: Gaffney v. Canada(ALlinister of Employment & Immigration) (1991), 12 Imm. L.R. (2d) 185 (F.C.A.); Hajariwala v. Canada(Minister of Employment and Immigration), [198912 F.C. 79 (T.D.); and Hui v. Canada(Minister of Citizenship and Immigration) (24 September 1998), Court File IMM-3 736-97 (F.C.T.D. ).
Pa2e: 9
brought to the attention of the visa officer either in the application or at the interview. This
is particularly true, where the application for permanent residence was prepared with the
assistance of counsel. In Adami, Evans J. summarized the law as follows:''
Counsel relied on [Hui, supra]. In very short reasons, Campbell J. set aside a visa officer's refusal on the ground that
... a visa officer has a clear responsibility to assess alternative occupations inherent in the applicant's work experience: given the ample evidence in this case that the applicant has work experience as an accountant. I find that she should have been assessed as such.
He relied also on [ ° armar v. Canada(,tIinister of Citizenship and Emplovmet7tl]. where MacKay J. seems to have reached a similar conclusion.
However, the weight of authority in this Court defines the relevant duty more narrowly, so that an officer is only required to assess an applicant in an occupation that the applicant has indicated on the application form or at the interview that she or he is qualifed for and interested in pursuing in Canada.
The leading case in [Hajariwala, supra], where Jerome A.C.J. considered the administrative instruction to visa officers requiring them to assess applicants in alternative occupations "where there is the possibility that the applicant is qualified for and prepared to follow that occupation". He then said:
I take this to be a very important expression of fundamental fairness to the applicant. Counsel for the applicant asks me to find that it imposes upon the visa officer the obligation to assess alternate occupations inherent in the applicant's work experience, whether the applicant puts them forward or not. I am not prepared to go that far, but I do find that it puts beyond question he respcnsibilit < . OF the visa officer to do so where, as here, the applicant seeks it by designating alternate occupations in the application.
Subsequent cases in which other judges of this Court have shared Jerome A.C.J.'s refusal to impose on visa officers the wider obligation for which counsel contends on behalf of Ms. Adami include Tolentino v. Minister of Citizenship and Immigration; Khoja v. Minister of Citizenship and Immigration, and Mahre= v. Minister of Citizenship and Immigration. In Gaffnev v. Canada(Minister of Employment and Immigration) the Federal Court of Appeal also seems to support this position.
[emphasis added; citations omitted]
i' 9dami v. Canada (Minister of Citizenship and Immigration) (5 May 1999), Court File ININI-3 19;-98 (F.C.T.D.) at paras. 9-12. See also: Khoja v. Canada (Minister of Citizenship and Immigration) (3 Januarv 1997), Court File IMM-998-96 (F.C.T.D.) at paras. 3 and 4. Gaffnev, supra at 189; Tolentino v. Canada (Minister of Citizenship and Immigration) (14 June 1995), Court File IMM-1614-94 (F.C.T.D.); and Mahrez v. Canada (Minister of Citizenship and Immigration) (25 March 1998), Court File IMM-2117-97 (F.C.T.D.).
Page: 10
[21] In the case at bar, there is no evidence that the applicant brought the alternative occupation of Computer Hardware Specialist/Computer Engineer to the attention of the visa officer. There is no reference to an alternative occupation in his application for permanent residence, nor is there any indication that he mentioned it in the interview. Furthermore, the applicant prepared his application with the assistance of counsel. In these circumstances. it seems unreasonable to extend the visa officer's obligation to the consideration of any alternative occupation which may be inferred from the applicant's experience. Accordingly. I find that the visa officer was under no obligation to assess the applicant under the alternative occupation of Computer Hardware Specialist/Computer Engineer.
[22] With respect to the applicant's argument that the visa officer should have assessed the employment qualifications of his spouse, it is clear from the record that his application indicated that his spouse was applying as a dependent. Accordingly, the visa officer was under no obligation to assess her qualifications.
iv. Work Experience
[23] The applicant argues that the visa officer failed to consider all of the evidence in her
assessment of his work experience. The visa officer's notes indicate the following: ' °
Have reviewed all information on application, and as I advised PA at end of interview, PA's lang and ED quaffs are of concern. Although PA has only 14 years of formal education instead of the mandatory 16 years required for licensing as a professional Eng, I am prepared to waive the issue or whether or not PA has suff ed in view of
14 Certified Record at 76-77.
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positive CCPE assessment (this should go back for a CCPE reassessment however do not have time now to wait for their re-review of this case).
... it is impossible to determine what PA does on a daily basis. PA works for a American JV company which makes circuits and electronic parts. Tried several times to no avail to have PA explain to me who these circuits and parts are made for. Tried several times to have PA describe to me what he did last week at work: His answer "Help customers to design application, water providers for every family to calculate because digital, research integrated circuits, basic..." RA did not discharge his onus of establishing his Eng. qualifications at interview, although he left more written testimonials behind for me to consider.
... In this case have assessed PA in intended occ. but have indicated 0 for exp because PA could not explain to me just what it is he does. It should be noted that even if PA was given full units for experience, he still would have had insuff units to pass due to his fang weakness and low PS (Personal SuitabilitvI.
[emphasis added]
[24] It is clear, therefore, that the visa officer considered all of the evidence but gave the applicant zero points for experience because he was unable to satisfy her exactly what
his occupation in China was. While this may be unreasonable it is a moot point because, even if the applicant were granted a full eight points for experience, he would still fail to meet the minimum level of eligibility (70 units). Accordingly. any error committed by the visa officer in assessing the applicant's experience is not sufficient to warrant sending the matter back for redetermination.
Conclusion
[25] The application for judicial review is dismissed.
Pa < ,ze: 121
[26] Neither counsel suggested that this case should give rise to the certification of a serious question of general importance pursuant to section 83 of the Immiaration.Act. l agree and. accordingly, no question will be certified.
F.J. McDonald
J. a.
SEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-380.8-_98
STYLE OF CAUSE: Yaozhong Shen v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 26, 1999
REASONS FOR ORDER
AND ORDER OF: The Honourable Mr. Justice F.J. McDonald
DATED: August 30, 1999
APPEARANCES:
Matthew M. Moyal FOR APPLICANT
Marianne Zoric FOR RESPONDENT
SOLICITORS OF RECORD:
Moyal & Moyal FOR APPLICANT Toronto, Ontario
Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada