Date: 20091223
Docket: IMM-2604-09
Citation: 2009
FC 1312
Ottawa, Ontario, December 23, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
SALEEM AHMAD KHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Khan
applied for a permanent resident visa as a federal skilled worker. The Immigration
and Refugee Protection Regulations set out various selection criteria, one
of which is proficiency in the official languages of Canada. Section 79 thereof calls upon a skilled
worker to identify English or French as his or first Canadian official
language. Mr. Khan only listed English, and professed no proficiency in French.
The application needs to be accompanied by test results by an accredited language
institution or by other evidence in writing of the applicant’s proficiency in his
selected language.
[2]
An officer
at Canada’s High Commission in London wrote in October 1, 2008
requesting further documentation by January 1, 2009. For the purposes of his application, Mr. Khan was
strongly advised to provide International English Language Testing System
(IELTS) test results.
[3]
Mr. Khan,
a Pakistani citizen, but then based in Dubai, was unable to secure a seat for the
exam until February 2009. By letter through his immigration consultant, dated
January 27, 2009, but only received by the visa officer February 11, 2009, he
requested a 60-day extension. The Officer’s CAIPS Notes reflect the request but
do not state if the consultant gave a reason. A copy of the letter was not
produced. However since an official receipt showing that the exam was only
going to take place in February was in the Tribunal Record, it is reasonable to
infer that the request was on the basis that he could not sit the exam before then.
[4]
At the
time the visa officer received the request, his Notes show that he had already
made up his mind to dismiss the application on the grounds that Mr. Khan did
not have the required 67 points. Without answering the request for an extension
of time, he denied Mr. Khan’s application. Mr. Khan was awarded 60 points out
of the required 67. He was given 0 out of 20 for language proficiency on the
grounds that the officer had no benchmark against which to assess his English
language ability.
[5]
Thereafter
Mr. Khan provided test reports which apparently show that he would have
received at least 14 points on language. He requested that the matter be
reopened but the visa officer refused.
ISSUES
[6]
Although
it could be said that there are really three decisions in question, the refusal
to grant an extension of time, the decision on the merits and the refusal to
reopen the matter, the Minister has not raised that point.
[7]
As I see
it, the first issue is whether the Visa Officer should have rendered a decision
on the application for permanent residence in the light of the request for an
extension of time so that Mr. Khan would be in a position to provide IELTS
results. The second issue is whether the decision on the merits was otherwise
reasonable and the third, contingent on either one of the first two, is whether
the refusal to reopen the application was unreasonable.
DECISION
[8]
In my
opinion, both the refusal to grant an extension of time and the decision on the
merits of the application were unreasonable and so judicial review will be
granted. In the circumstances, it is not necessary to consider whether the visa
officer was functus officio. The authorities in that regard were
recently canvassed by Madam Justice Mactavish in Kurukkal v. Canada (Minister of Citizenship and
Immigration),
2009 FC 695, 81 Imm. L.R. (3d) 263.
ANALYSIS
[9]
Administrative
efficiency is important, and necessary. A three-month delay to provide further
documentation was more than fair. Mr. Khan certainly knew by November 2008 that
he would not be able to sit the exam until February 2009 and there was
absolutely nothing to prevent him from requesting a delay prior to the deadline
set by the visa officer.
[10]
The
greater issue, however, is that of justice between the parties. The visa
officer’s letter did not state that any request for an extension must be made
before January 1, 2009. I draw an analogy to section 18.1(2) of the Federal
Courts Act which requires that an application for judicial review of a
decision of a federal board, commission or tribunal be made within 30 days, or such
further time that the Court may fix either before or after the expiration of
those 30 days. Certainly the visa officer had the discretion to grant the
requested extension. The conclusion I draw is that the request was refused in a
fit of pique.
[11]
The
underlying consideration on an application to extend time is that justice be
done. Consideration should be given to the reason for the requested delay and
whether there is an arguable case on the merits (Grewal v. Canada (Minister of Employment and
Immigration),
[1985] 2 F.C. 263 (C.A.). Certainly Mr. Khan had a continuing intention to
pursue his application, his application had some merit, there is no prejudice
to the Minister arising from the delay and a reasonable explanation exists (See
Canada (Attorney General) v.
Hennelly (1999),
244 N.R. 399 (F.C.A.); Gakar v. Canada (Minister of Citizenship and
Immigration) (2000), 189 F.T.R. 306 at paragraph 29 and following; Ching-Chu
v. Canada (Minister of Citizenship and Immigration), 2007 FC 855, 315
F.T.R. 301; and Pharaon v. Canada (Minister of Citizenship and Immigration), 2009 FC 276, 80 Imm. L.R.
(3d) 115).
[12]
Thus the
decision arises from procedural unfairness, upon which no deference is owed. However,
in any event, the decision on the merits not to award any points for English
language ability was unreasonable. Mr. Khan obtained both an undergraduate degree
and a Masters of Administration in England,
and had worked in Dubai for a number of years in
English. The regulation does not require an IELTS Report and so the Visa
Officer failed to discharge his duty by not assessing the material which was on
hand. The Minister relies on the decision of Al Turk v. Canada (Minister of Citizenship and
Immigration),
2008 FC 1396 both on the issue of an extension for delay and on the assessment
of language proficiency. On the first point there was no evidence in that case
that a request for an extension was ever made. In the case at hand there is. In
Al Turk the applicant had studied in English, but the Court held this
did not conclusively establish that he had either a moderate or high level of
ability. He could well have passed with only a basic level of English. However,
the Court noted in that case that the visa officer was not satisfied that he
had studied in an English speaking environment “such as a person having
studied in the U.K.” Not only did Mr.
Khan study in the U.K., he was awarded 25 out of 25
points for education. It is ludicrous to suggest that someone who has obtained
both an undergraduate and a master’s degree in England from an English language university has
no ability in the English language.
[13]
The matter
is to be referred back to another visa officer for reassessment on the criteria
in place when Mr. Khan made his original application.
ORDER
FOR THE REASONS GIVEN;
THIS COURT ORDERS that
1.
This
application for judicial review is granted.
2.
The visa
officer’s decision is set aside.
3.
The matter
is referred back to another visa officer for a fresh determination.
4.
There is
no serious question of general importance to certify.
“Sean Harrington”
Email this Content