Cui v. Canada (Minister of Citizenship and Immigration), docket IMM-1269-98

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docket IMM-1269-98

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Date: 19981125

Docket: IMM-1269-98

BETWEEN:

YUQING CUI

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

REED J.

[1] This is an application to have a decision of a visa officer, set aside on the ground that she did not interview the applicant fairly and ignored or double counted certain evidence. The visa officer awarded the applicant 67 points; she needs 70 in order to be processed for landing.

[2] It seems clear from the respective affidavits and the CAIPs notes that the main difficulty was the applicant's lack of facility in the English language. She advised the visa officer at the beginning of the interview that her immigration consultant had incorrectly stated that she was fluent in English, while she considered herself able to speak and write the language well but not fluently. The visa officer assessed the applicant as speaking and writing English "with difficulty"; she was assessed as able to read English "well".

[3] One can assume that the mistaken description in her application of her facility in English meant that the interview started off on the wrong foot. In any event, the applicant alleges that the visa officer treated her rudely, was abrupt, and made her feel uncomfortable so that she was not able to adequately present her case. (These interviews are stressful situations.)

[4] I note that while the applicant states in her affidavit that she was not allowed to refer to a written job description that she had brought with her, the visa officer's notes, made contemporaneously with the events, indicate that the applicant did so refer. Also, the applicant in her affidavit says she was not allowed to demonstrate her writing ability during the interview, yet there is in the record a writing sample that carries at its top the instructions "please write down your job duties in your present occupation." The applicant wrote three sentences: the first stating where she had worked from July 1992 to November 1992; the second stating where she had worked from November 1992 to March 1993; the third stating that she had worked at Henderson (China) Investment Co. Ltd. from March 1993 to the present. The visa officer states that the applicant was given ten minutes during the interview to complete the requested writing sample. I must conclude that the applicant's memory of the interview is not in all respects accurate. Accordingly, I must also conclude that the visa officer's conduct was not such as to vitiate the decision that was made.

[5] With respect to the applicant's ability to speak and write English, the applicant asserts that an error was made by the visa officer in not taking into account a written description of her job duties that she had prepared ahead of time and brought with her to the interview. This is not an error on the part of the visa officer. It is quite sensible for her to have insisted on testing the applicant's writing ability, by asking her to write something during the interview, rather than relying on a pre-prepared document that the applicant brought with her to the interview.

[6] Lastly, counsel for the applicant argues that the visa officer double counted since in her assessment of the applicant's personal suitability (factors such as initiative, resourcefulness, adaptability and motivation) the visa officer also took into account the applicant's language ability. The relevant portion of the CAIPs notes reads:

PERSONAL SUITABILITY: 5 PTS GIVEN.

MAIN REASON FOR THIS APPLN BECAUSE PI THINKS CDA CAN OFFER BETTER LIFE TO HER AND HER HUBS. PI HAS SETTLEMENT FUNDS OF CAD29722. PI NEVER BEEN TO OVERSEAS. INTENDS TO SETTLE IN TORONTO. PI HAS CHECKED OUT BRIEF INFO SUCH AS COST OF LIVING AND PRICES FOR HOUSING THRU BOOKS AND NEWSPAPERS. HOWEVER PI HAS NO IDEA REGARDING CDN LABOUR MARKET AND HAS NOT DONE RESEARCH ABOUT HER INTENDED OCCUP. SHE HAS NO DEFINITE PLAN HOW TO SEEK INTENDED JOB IN CDA. STATED SHE HAS A FRIEND OPERATING BEAUTY SALON BUSINESS IN CDA AND SHE MAY OFFER PI ACCOUNTING JOB WHEN SHE FIRST ARRIVES CDA. PI IS UNABLE TO GIVE DETAILS OF THIS FRIEND OR THIS BUSINESS AT INT. PI DEMONSTRATED LIMITED MOTIVATION AND INITIATIVE AS SHE HAS OBTAINED VERY LIMITED SETTLEMENT INFO AND HAS NOT SHOWN EFFORTS IN UPGRADING ENGLISH IN PREPARING HER INTENDED IMMIGRATION TO CDA. PI'S ADAPTABILITY IS ALSO IN QUESTION SINCE SHE DOES NOT HV GENERAL KNOWLEDGE ABOUT CDA. SHE IS UNFAMILIAR WITH THE AREA IN WHICH SHE WOULD LIKE TO SETTLE DOWN.

[7] I accept that there is a difference between a person's language ability and their efforts to learn a language. I accept that the latter may be relevant to personal suitability while if the former were taken into account when making such an assessment, it would constitute double counting. See, for example, Chatrova v. Minister of Citizenship and Immigration (1996), 34 Imm. L.R. (2d) 59 (F.C.T.D.), and Stefan v. Minister of Citizenship and Immigration (F.C.T.D.) (August 14, 1996, IMM-669-95). There is no indication in the evidence as to the basis for the conclusion that the applicant had made little effort to improve her English. I will assume, however, that it is accurate because the applicant identified no special courses that she had taken for the purpose of improving her English, nor do her letters of reference, or curriculum vitae identify such.

[8] It certainly would be preferable if these interviews were taped so that there was some objective way to assess contradictory descriptions such as those set out in the respective affidavits in this case.

[9] In any event, for the reasons given the application must be dismissed.

"B. Reed"

Judge

TORONTO, ONTARIO

November 25, 1998

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-1269-98

STYLE OF CAUSE: YUQING CUI

and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

DATE OF HEARING: WEDNESDAY, NOVEMBER 25, 1998

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: REED, J.

DATED: WEDNESDAY, NOVEMBER 25, 1998

APPEARANCES: Mr. Mark Rosenblatt

For the Applicant

Mr. Stephen Gold

For the Respondent

SOLICITORS OF RECORD: Mark Rosenblatt

Barrister & Solicitor

335 Bay Street,

Suite 1000

Toronto, Ontario

M5H 2R3