Date: 20000531
Docket: IMM-1649-99
Ottawa, Ontario, this 31st day of May, 2000
PRESENT: THE HONOURABLE MADAM JUSTICE E. HENEGHAN
BETWEEN:
SYROUS NAWABY-SHIRAZI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER AND REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for judicial review of a decision rendered February 23, 1999, wherein Maria Lavelle (the "visa officer") refused the application for permanent residence of Syrous Nawaby Shirazi (the "Applicant").
[2] The Applicant is a citizen of Iran. In May of 1997, he applied for permanent residence in Canada under the independent category and was assessed under the intended occupation of Civil Engineer, NOC 2131.0. The visa officer was awarded the following units of assessment:
| Specific Vocational Preparation 17 |
[3] As the Applicant failed to achieve the required 70 units of assessment, the visa officer refused his application for permanent residence.
[4] The Applicant raised two issues on this application for judicial review. First, the Applicant argues that the visa officer erred in awarding only six points for his English abilities. Second, the Applicant argues that the visa officer failed to consider his spouse"s background and experience for the purposes of qualifying her as the main applicant.
[5] With respect to the issue of language, the Applicant claims to have marked down "well" instead of "fluently" on his application form because he mistook these two categories as being the same. He claims that the visa officer interviewed him in English but awarded him six points based on the indication on his application rather than from an actual determination at the time of the interview. The Applicant studied in the United States. Accordingly, the Applicant claims that he speaks, writes and reads English fluently.
[6] Counsel for the Minister of Citizenship and Immigration (the "Respondent") maintains that the Applicant has not shown that the visa officer erred in assessing the Applicant"s English language abilities. The Respondent stresses that there was nothing to indicated that his abilities were something other than what had been indicated on the application form. Furthermore, the Respondent notes that the Applicant did not point out prior to the refusal decision that the information under item 13 of the application was incorrect.
[7] In terms of the assessment of the Applicant"s English abilities, the visa officer deposed the following at paragraph 9 of her affidavit:
| The Applicant indicated in his application form that he both [sic] his English ability was "well", accordingly I awarded him with 6 points for English ability. During the course of the interview there was nothing to indicate that the Applicant"s language ability was other than that which was indicated in his application form. |
[8] Although the Applicant may have erred in marking his English down as "well" instead of "fluently", I do not think the visa officer erred in assessing his language abilities. As is clear from her affidavit, there was no evidence at the time of the interview that his English abilities were something other than what had been indicated on the application form. The visa officer took into consideration the Applicant"s performance at the interview. Therefore, I cannot conclude that the visa officer committed a reviewable error in determining that the Applicant English abilities could be characterized as "well".
[9] With respect to the submission that the visa officer failed to consider tha Applicant"s spouse, I am of the opinion that the visa officer was under no duty to do so. In Nanji v. Canada (Minister of Employment and Immigration)1, Justice McKeown stated at paragraph 6:
| The important words are "a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant".__In my view the use of the words "or" and "at the option of the immigrant" indicate that it is the responsibility of the applicant to designate who will be assessed. The visa officer is not required to assess both the applicant and his spouse as submitted by the applicant. Rather sec. 8(1) makes it mandatory for the visa officer to assess only one or the other._ There is no provision in the Immigration Act or Regulations or any principle of procedural fairness which imposes a duty on the visa officer to apprise the immigrant of this option.2 |
[10] In light of the above decision, I cannot conclude that the visa officer erred in failing to assess the Applicant"s spouse in the intended occupation of translator.
[11] The application for judicial review is dismissed.
[12] Counsel for the parties have seven days following their receipt of these reasons to request that a question be certified.
ORDER
[13] IT IS ORDERED that the application for judicial review be dismissed.
| _____________________________ |
Ottawa, Ontario
May 31, 2000
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1(1993), 66 F.T.R. 158 (.T.D.).
2Supra at paragraph 6.
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