Date: 19981103
Docket: IMM-4390-97
BETWEEN:
MOHAMMAD ASHRAF,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] This is an application for judicial review pursuant to s.82.1(1) of the Immigration Act, R.S.C. 1985, Chap. I-2, of a decision of a visa officer (B034867206) dated September 23, 1997 in which the visa officer denied the applicant's application for permanent residence. The applicant asks that the decision be set aside and that his application be reconsidered by a different visa officer.
[2] The applicant is a citizen of Pakistan, though he currently resides in the United States, without status. He is a diesel mechanic who worked with the Pakistani Air Force for 18 years. While working for the air force he took several courses to upgrade his skills. Since 1994, the applicant worked for New Punjab Auto Repair in New York as a mechanic.
[3] The applicant also holds an intermediate matriculation level diploma from Pakistan. This diploma does not entitle the applicant to enter university. In addition, he has two certificates of training in mechanical transport and in automobile and diesel technology.
[4] On November 14, 1996, the applicant submitted his application for permanent residence to the Canadian Consulate in Buffalo seeking to enter Canada as a diesel mechanic (CCDO 8584382). The applicant also sought permanent residence for his wife and four children. His application was "paper screened" and it was determined that an interview would be needed to assess his experience, education and language ability.
[5] On July 30, 1997, the applicant was interviewed where he first met with Lilowatti Ramcharan, an immigration officer. Ms. Ramcharan gathered information about the applicant's educational background and concluded that the courses he took while with the Pakistani Air Force were of short duration and did not equate to one year full-time studies at a college, trade school or other post-secondary institution. Ms. Ramcharan also assessed the applicant's language ability and determined that his spoken English was very poor. Similarly, she concluded that his ability to write and read in English was also limited. Her findings were given to the visa officer.
[6] The applicant was then interviewed by the visa officer who assessed him as a diesel mechanic. She also awarded him the maximum number of units of assessment for his experience. On the issue of education, the visa officer determined that the applicant has completed only secondary school and obtained a diploma which does not lead to university entrance. Accordingly, she granted him only 5 units of assessment and did not grant him any units for his military training courses since they did not amount to "one year of full-time classroom study at a college, trade school or other post-secondary institution" as per schedule I, column II of the education factor of the Immigration Regulations. SOR/78-172. This factor provides that:
| |
(1) Subject to subsections (2) and (4) units of assessment shall be awarded as follows: |
|
| |
(b) where a diploma from a secondary school has been completed, the greater number of the following applicable units: |
|
| |
(i) in the case of a diploma that does not lead to entrance to university in the country of study and does not include trade or occupational certification in the country of study, five units, |
|
| |
(ii) in the case of a diploma that may lead to entrance to university in the country of study, ten units, and |
|
| |
(iii) in the case of a diploma that includes trade or occupational certification in the country of study, ten units; |
|
| |
(c) where a diploma or apprenticeship certificate that requires at least one year of full-time classroom study has been completed at a college, trade school or other post-secondary institution, the greater number of the following applicable units: |
|
| |
(i) in the case of a diploma or apprenticeship certificate program that requires completion of secondary school diploma referred to in (b)(i) or (ii) as a condition of admission, ten units and |
|
| |
(ii) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(ii) as a condition of admission, thirteen units. |
|
[7] In addition, the visa officer determined that the applicant spoke English poorly, as his sentences were not complete, his vocabulary was limited and he demonstrated incorrect sentence structure. As to the written test, the visa officer agreed with Ms. Ramcharan's findings that the applicant writes "with difficulty" and that he reads "with difficulty". Accordingly, the visa officer did not grant the applicant any units of assessment for language ability. At page 3 of the respondent's record, the visa officer deposes that:
| |
I asked the Applicant a few questions to determine his English ability. His answers confirmed Ms. Ramcharan's initial finding that his spoken English was very poor. His sentences were not complete, his vocabulary limited and he did not know how to use verb tenses appropriately. In addition, the few examples given by Ms. Ramcharan in her CAIPS notes reenforced my assessment that his spoken English was not at the spoken "well" level. I looked at the written test given to the Applicant by Ms. Ramcharan and which forms part of the Tribunal Record and assess him between "with difficulty" and "not at all" for his written ability in English. His written dictation was unreadable. I also told the Applicant that Ms. Ramcharan had tested his reading ability in English and that he had not been able to explain what he had just read to her. Therefore, I could not award him any points under the English language factor. |
|
This factor provides that:
| |
(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. |
|
[8] The visa officer also awarded the applicant 3 units for personal suitability. At page 4 of the respondent's record, the visa officer speaks to the issue of the applicant's personal suitability:
| |
I awarded the Applicant three points for his personal suitability. I took into consideration that he had five dependants (even if not accompanying, the visa officer must consider them as dependants, as defined in the regulations, in his evaluation of the Applicant's personal suitability and ability to establish in Canada) to support and that he had only US $24,341 in liquid assets. His wife, who [sic] I could not examine because she had not attended the interview as requested in our convocation letter written instructions, had no formal education no working experience and no knowledge of any of Canada's two official languages. I also considered the fact that the Applicant had no relatives in Canada and that he had never visited Canada. He had made no effort to acquire knowledge about the country where he wished to immigrate and had not displayed any initiative. He had not been able to learn English well, although he had been living in the United States since June 1994. |
|
[9] In total, the visa officer awarded the applicant 57 units of assessment as follows:
| |
Specific Vocational Preparation 15 |
|
[10] Based on this assessment, the applicant asks that the Court judicially review this decision. The applicant essentially argues that the personal suitability assessment was perverse due to the fact that the visa officer "double counted" the applicant's inability to communicate in English in making this determination. The applicant also argues that the visa officer erred in assessing the applicant's language skills as being "with difficulty" with the result that no units of assessment were awarded to the applicant.
[11] At the outset it is necessary to note the standard of review of this type of decision. In Maple Lodge Farms v. Government of Canada [1982] 2 S.C.R. 1, Mr. Justice McIntyre stated:
| |
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 same 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. |
|
[12] The applicant relies, primarily on the Federal Court of Appeal's decision in Zeng v. Canada (Minister of Employment and Immigration) (1991), 12 Imm.L.R. (2d) 167 (F.C./A), in which Mr. Justice Mahoney, writing for the unanimous Court stated at pages 170 to 171 that:
| |
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 ... |
|
| |
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 results 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. I was wrong. Furthermore, none of linguistic accomplishment, arranged employment and family circumstance is "similar qualities" to the qualities required to be taken into account under item 9. |
|
[13] This case has been cited, on numerous occasions, to support the proposition that a visa officer cannot take into account, for a second time, factors already listed in the Schedule in determining a prospective immigrant's personal suitability. (see Chatrova v. Canada (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 308, Ho v. Canada (Minister of Employment and Immigration) (1994), 88 F.T.R. 146 and Rudnitsky v. Canada (Minister of Citizenship and Immigration) (1997), 130 F.T.R. 72. In all of these cases, the applicants' lack of ability to communicate in the English language was considered as a factor in determining their "personal suitability". Specifically, in each of these cases, the visa officer expressed concern that the individuals would not be personally suitable given their lack of ability to communicate in English.
[14] "Double counting" does not come into play when the visa officer takes into account one's language skills in determining motivation or adaptability as long as the level of proficiency is not re-examined. The personal suitability factor does not preclude a visa officer from taking into account the applicant's lack of motivation to learn a language, having been exposed to that language, when assessing the applicant's personal suitability. As long as the level of language skill is not considered by a visa officer when determining personal suitability, no reviewable error exists.
[15] While there are some conflicting cases emerging from the Trial Division with respect to the issue of whether language skills can be assessed in determining an applicant's ability to become successfully established in Canada. (see specifically, Vasilev v. Minister of Citizenship and Immigration (1996), 110 F.T.R. 62 and Dragone v. Minister of Citizenship and Immigration (1995), 31 Imm.L.R. (2d) 97) that issue does not need to be addressed in the case at bar. The sole issue at bar is whether the visa officer erred by double counting when she concluded that the applicant lacked motivation (and was thus not personally suitable) by not learning English, though resident in the United States for four years. In Stefan v. Canada (Minister of Citizenship and Immigration) (1995), 35 Imm.L.R. (2d) 21, Madam Justice Simpson considered a case with fact similar to the case at bar. In that case, the visa officer considered the following factors when assessing the applicant's personal suitability:
| |
(1) He noted that, although a civil engineer, the applicant had not taken any computer courses to train her to pursue her profession in Canada; |
|
| |
(2) He noted that her learning pace during her English studies was slow; and |
|
| |
(3) He noted that she had no special knowledge of Canada. |
|
[16] In determining that no reviewable error existed, Madam Justice Simpson made the following comments on page 24:
| |
What must be seen in an analysis under personal suitability is an assessment focused on the four factors and not on the skill level already recorded in other parts of the assessment. |
|
| |
If this focus is achieved then Zeng does not apply, and the fact that topics covered elsewhere in the assessment are looked at again from a different perspective involving the factors will not constitute a reviewable error. |
|
[17] Thus, in the case at bar, the visa officer did not re-assess the applicant's language skills in determining his personal suitability. Her comments do not reflect fewer points being awarded based on his lack of ability; rather the comments refer to his lack of motivation to learn a language, despite living in the United States for several years.
[18] On the issue of the applicant's ability to communicate in English, the applicant argues that the visa officer erred in her assessment. The applicant is attempting to have this Court reassess the applicant's language skills anew, despite the fact that this is not the role of the Court in reviewing such a decision. The assessment of the applicant's language skills rests with the visa officer; not with the Court. The applicant has admitted that his English skills are not fluent, but are "moderate". The issue raised is not like that raised in Chatrova v. Canada (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 308, in which Madam Justice Reed set aside the decision of a visa officer on the basis that the visa officer demanded that the applicant's English be "flawless" in order to obtain the full units of assessment. Rather, as stated above, the applicant's admits that his skills are not fluent. Whether the applicant's personal assessment of "moderate" falls into the level of "well" or "with difficulty" is a matter for the visa officer to assess. That she has done, and there appears to be no error in the manner in which she made this assessment.
[19] This application for judicial review to quash the visa officer's assessment is hereby dismissed.
Judge
Ottawa, Ontario
November 3, 1998