Docket: IMM-3778-11
Citation: 2012 FC 203
Ottawa, Ontario, February 13, 2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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MA LI LIN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review in respect of a decision rendered by a
Designated Immigration Officer [the Officer] at the Canadian Consulate General
in Hong
Kong,
on March 25, 2011 [the Decision]. In the Decision, the Officer refused the
applicant’s application for a permanent resident visa as a member of the
Federal Skilled Worker Program [FSWP], finding her to be just one point shy of
the 67 points required to qualify under the FSWP.
[2]
In
her Notice of Application and Memorandum of Fact and Law, the applicant argued
that the Decision should be set aside both because it was unreasonable and
because the Officer allegedly committed a breach of procedural fairness. At the
outset of the hearing, counsel for the applicant abandoned the challenge to the
Decision based on lack of reasonableness and confirmed that the sole basis for
review centered on the alleged breach of procedural fairness. More
specifically, the applicant asserts that the Officer’s use of a grid to
correlate the raw test scores the applicant achieved on the International
English Language Testing System [IELTS] test to the points required under the Canadian
Language Benchmark, 2000 [the benchmark], prescribed by subsection 79(2)
of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the
Regulations], amounted to a breach of procedural fairness because a change made
by the respondent to the grid in 2008 was not promulgated in the Canada
Gazette or otherwise broadly broadcast to immigration practitioners. At the
material time, the Regulations allowed an applicant to demonstrate language
proficiency either by taking a test like the IELTS test or by having a language
assessment performed by an officer.
The applicant
argues that, had she been aware of the change to the correlation grid, she
would not have taken the IELTS test and instead would have opted to have her
language proficiency tested by the Officer.
[3]
For
the reasons set out below, I am of the view that there was no breach of
procedural fairness committed by the Officer and that, accordingly, this
application should be dismissed.
Factual Background
[4]
The
applicant is a citizen of China.
She states in her Affidavit filed in support of the present application for
judicial review that she made her application under the FSWP in approximately
July 2009. The Record reveals that her application was received by the
Consulate General in Hong Kong on September 28, 2009.
[5]
The
applicant further deposes in her Affidavit that she retained what she terms a “self-acclaimed
immigration consultant” in China
to assist with the preparation of her application, and that in preparing her
application she and the consultant sought guidance from an August 2008
publication of the respondent, entitled “Simplified Process Guide (IMM ESAP
7000)”. That Guide does not set out how scores obtained on the IELTS test are
to be correlated to the benchmark points prescribed by subsection 79(2) of the Regulations.
[6]
The
applicant also deposes in her Affidavit that in preparing her FSWP application,
she and her consultant calculated that she would receive 12 points for language
proficiency and believed that she could achieve this point rating if she
demonstrated high proficiency in two of the four abilities measured by the
IELTS test, namely reading, writing, speaking and listening, and achieved a
medium proficiency rating in the other two abilities. The applicant, however,
does not claim that this assessment was based on any representation made to her
by the respondent. Rather, it would appear that the consultant formulated this
opinion based on an outdated correlation grid that was no longer in use by the
respondent in 2009. The applicant did not inform the Officer of the estimates
she and her consultant had done in respect of the conversion of IELTS scores to
the numbers under the benchmark.
[7]
The
applicant took the IELTS test on November 7, 2009 and achieved a raw score of
7.0 for reading, 7.0 for listening, 6.0 for writing and 6.0 for speaking. The
Officer applied the correlation grid contained in the respondent’s Operation
Manuals in both 2009 and 2010 and obtained the following results:
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Raw IELTS test score achieved by the
applicant
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Points for the FSWP
application
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Reading – 7.0
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Benchmark - High
– 4 points
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Listening –
7.0
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Benchmark - Moderate
– 2 points
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Writing – 6
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Benchmark - Moderate
– 2 points
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Speaking – 6
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Benchmark - Moderate
– 2 points
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[8]
There
is no dispute that the Officer correctly applied the grid in force in 2009 and
2010 to the raw test scores the applicant achieved on the IELTS test.
[9]
The
grid in the Policy Manual changed effective November 28, 2008. Prior to that
date, the same correlation existed for each of the four evaluated criteria
between the test ability raw data achieved on the IELTS test and the benchmark.
In other words, a “7” or higher on each ability score on the IELTS test
translated into a “4” for purposes of the benchmark. The respondent changed the
grid in 2008 for certain of the criteria because a study it had conducted indicated
that the relationship between the IELTS bands and the benchmark levels was not
consistent across the four abilities and a higher score for listening and lower
scores for each of the other abilities were required. Thus, from 2008 forward, an
applicant needed to achieve a “7.5” or higher for listening on the IELTS to be
rated in the “high” category under the benchmark but only a “6.5” for the other
abilities to be rated in the “high” category for purposes of the benchmark.
[10]
In
this application for judicial review, the applicant asserts that the respondent
ought to have given notice of its change to the grid by way of publication in
the Canada Gazette or through some other means, like a general bulletin
to all immigration practitioners. The applicant asserts that the failure to so
publicize the change in the correlation grid amounts to a breach of procedural
fairness by the respondent. She also claims that, had she known of the change,
she would have availed herself of the option (that then existed) of having her
language ability evaluated by the Officer, as opposed to taking the IELTS test.
[11]
The
uncontradicted evidence before the Court establishes that the new correlation
between the IELTS raw data and the benchmark levels was clearly set out in the
brochures the respondent provided to FWSP applicants that accompanied the FSWP application
forms in July and September of 2009 (the dates when the applicant made her
application and when it was received by the respondent).
[12]
Thus,
had the applicant or her consultant read the material that the respondent
provided with FSWP application packages in July 2009, the change in the
correlation grid would have been readily apparent.
Analysis
[13]
The
applicant argues that the present case is substantially similar to the
situations in Noor v Canada (Minister of Citizenship and Immigration),
2011 FC 308, [2011] FCJ No. 388, [Noor] and Vikas v
Canada (Minister of Citizenship and Immigration), 2009 FC
207, [2009] FCJ No. 230, [Vikas] where this Court set aside
decisions made by visa officers under the FSWP, due to denials of procedural
fairness. In both cases, the Court was careful to state that its findings were
limited to the “unique facts” or “distinct situation” that pertained in them.
[14]
In Noor,
the applicant failed to provide residency documents that were newly-required by
the respondent due to a change in administrative policy. However, in that case,
unlike the present situation, the evidence before the Court revealed that the
applicant had submitted an outdated application package to the visa officer that
referred to the previous documentary requirements. The Court reasoned that it
was clear to the visa officer that the applicant was relying on the outdated
information and that the applicant, in that distinct situation, ought to have been
afforded the opportunity to submit the missing documents (which were readily
obtainable). Here, on the other hand, there was no basis upon which the
Officer could have known that the applicant was relying on an outdated version
of the correlation grid.
[15]
The
situation in Vikas is less pertinent. There, the officer conducted an
interview, questioned the applicant about his work experience and made a
calculation as to the number of months the applicant had worked but did not
share the results with the applicant. In so doing, the officer was required to
convert part-time hours worked by the applicant to full-time equivalencies, and
there was the possibility for some interpretation in his calculations. In
result, the visa officer found the applicant lacked less than two months
experience required to qualify him for a permanent residency visa under the
FSWP. In those unique circumstances, the Court held that the visa officer owed
a duty of procedural fairness to share the results of his calculation with the
applicant. Here, on the other hand, no interview was conducted and there was
nothing subjective about the conversion done under the grid.
[16]
Both
Noor and Vikas, in my view, are readily distinguishable from the
present situation. Here, there was no basis for the Officer to have known that
the applicant was relying on an outdated version of the correlation grid, and
the very documents that accompanied the FSWP application package clearly
specified what grid was being applied. As I have already indicated, had the applicant
or her consultant merely read the documents available to her, the basis for language
assessment would have been readily apparent.
[17]
In
the circumstances, there was no denial of procedural fairness by the Officer
and no obligation for the respondent to publicize the change in the correlation
grid in the manner sought by the applicant.
[18]
No
question for certification under section 74 of IRPA was presented and none
arises in this case.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
This
application for judicial review of the Officer’s Decision is dismissed.
2.
No
question of general importance is certified.
Mary
J. L Gleason
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