Date: 19980911
Docket: IMM-4183-97
Between:
WANG HUA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of a visa officer dated August 25, 1997, rejecting the application for permanent residence made by the applicant under paragraph 8(1)(a) of the Immigration Regulations, 19781 (the "Regulations").
[2] On February 10, 1997, the applicant made an application for permanent residence in Canada in the independent immigrant class.
[3] Following a preliminary examination of his file, the applicant was called to an interview with Yvonne Y.W. Tsang, a visa officer, to discuss the application.
[4] On August 25, 1997, the applicant personally met with the visa officer at the Consulate General of Canada in Hong Kong, for an interview to determine whether the applicant would be able to become successfully established in Canada.
[5] The applicant is a telecommunications/broadcasting engineer with thirteen years' experience. His qualifications have been recognized by the Canadian Council of Professional Engineers. The visa officer acknowledged that the applicant had already undertaken a search to identify employment opportunities in Canada.
[6] The interview took place entirely in English. The visa officer asserted that the applicant had a great deal of difficulty understanding and making himself understood in English.
[7] In the assessment of his application for permanent residence, using the selection criteria set out in Schedule I to the Regulations, the applicant obtained 69 points, the minimum needed in order to be granted landing in Canada being 70 points.
[8] As a result, the visa officer rejected the application for permanent residence on the ground that the applicant had not obtained a sufficient number of points as required by the Regulations.
[9] The visa officer awarded him only 3 points in the "personal suitability" category:2
| 28. ... because I was not satisfied that he had demonstrated enough initiative and motivation as he had not made any effort to improve his English skills to an acceptable level which would allow him to seek employment and settle in Canada. |
| 29. The lack of Applicant's English skills would not allow him to communicate fluently at an employment interview. This also showed a lack of preparation for emigration to Canada on the part of the Applicant. |
| 30. As a result, I do not believe the Applicant will be able to adapt to the new environment in Canada with a reasonable time. |
[10] In Zheng,3 the Federal Court of Appeal held that it is an error of law for visa officers to do "double counting". Mr. Justice Mahoney said:
| In my opinion, the point assessment provided by the Schedule cannot be said not to take account of the fact that an applicant has no relatives in Canada, or has difficulty communicating in English and no French at all. Those considerations are properly to be taken into account in the awarding or withholding of units of assessment under those items of the Schedule and the visa officer had no discretion to take them into account in his assessment under item 9, Personal Suitability.4 |
[11] In the instant case, as in Zheng, evaluation of the "personal suitability" factor was essentially based on the fact that the applicant does not speak English fluently. This was in fact the only factor that was considered as an indication of the applicant's lack of preparation for immigration and of his ability to adapt to the Canadian environment.
[12] As a result, the decision of the visa officer is set aside and the matter is referred back for reconsideration by a different visa officer.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
September 11, 1998.
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO: IMM-4183-97
STYLE OF CAUSE: WANG HUA and MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 8, 1998
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED September 11, 1998
APPEARANCES:
Pierre Masson FOR THE APPLICANT
Lisa Maziade FOR THE RESPONDENT
SOLICITORS OF RECORD:
Pierre Masson FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________2 Affidavit of Yvonne Y.W. Tsang, p. 6.