Date: 20110211
Docket: IMM-2517-10
Citation: 2011 FC 167
Ottawa, Ontario, February 11,
2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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MANDEEP KAUR GREWAL
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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]
Mandeep
Kaur Grewal, the Applicant, seeks judicial review of a decision dated February
3, 2010, in which an Immigration Officer at the Canadian High Commission in New
Dehli, India, refused the Applicant
permanent residence in Canada. Leave was granted by Justice
Mosley on November 5, 2010.
[2]
The
Applicant put forth her application for permanent residence under the skilled
worker class, pursuant to subsection 12(2) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (“IRPA”). The minimum requirements for the
evaluation are set out at sections 75 and 76 of the Immigration and Refugee
Protection Regulations, SOR 2002/227 (“IRPR”). Generally, the criteria are age,
education, experience, arranged employment, adaptability and proficiency in Canada’s official languages.
[3]
The
Applicant takes issue with the evaluation of language proficiency. The
Immigration Officer awarded a total of 63 points for the application. Two (2)
points were assessed under the Official language proficiency, and none were
awarded under the arranged employment category. The Applicant did have arranged
employment in Canada as a Retail Trade Manager,
but the Immigration Officer was of the opinion that she would not be able to
perform the required duties as she did not have sufficient language skills.
Basically, the Immigration Officer assessed the Applicant’s IETLS scores to
conclude on both language proficiency and arranged employment.
[4]
The
Applicant puts forward a case that hinges on the fairness of her treatment by
the Immigration Officer. She also alleges issues pertaining to the sufficiency
of the Officer’s reasons, as well as the exercise of the Officer’s residual
discretion under section 76(3) of IRPA. The Court will only take issue with the
first element, that of the procedural fairness of the process undertaken by the
Immigration Officer.
[5]
It is
clear that questions of procedural fairness are to be reviewed on the standard
of correctness, and this remains true in the context of decisions by
Immigration Officers (Dunsmuir v New Brunswick, 2008 SCC 9; Khan v
Canada (Citizenship and Immigration), 2009 FC 1312; Alam v Canada
(Citizenship and Immigration), 2008 FC 419). In this case, there is evidence
to support the Applicant’s contention that procedural fairness was breached.
[6]
While it
is true that the Applicant’s IETLS test results were not sufficient for the
Immigration Officer to award her more points, there was evidence before the
Officer that the Applicant was to undertake a second examination to better her
results. Her poor results were allegedly caused by health reasons. The
information forwarded by the Applicant’s immigration consultant was clear in
this respect. Furthermore, it was noted that a second examination was to take
place and that the results would be forwarded as soon as they were available.
[7]
It appears
that the Officer decided before these second test results were not forwarded.
However, the Immigration Officer had other evidence to bolster the claim that
the poor test results were due to bad health. The Applicant studied for many
years and alleges that she used English in the course of her employment and
coursework. As such, the Officer knew that further test results were pending or
needed to be submitted.
[8]
More
importantly, not only did the Officer use the poor IETLS scores to make a
finding on language proficiency, these were also used as a basis to not award
any points under the Arranged Employment criterion, despite evidence that
employment was confirmed. In turn, this had repercussions on the Adaptability
criterion. The language proficiency assessment was a determination that had a
great impact on the application, not least of which on the Arranged Employment
criterion.
[9]
In this
respect, the OP6 Manual – Federal Skilled Workers is relevant. While
this manual is not binding on the officer, it does provide guidance and
orientation in the determinations to be made. One such guideline in regards to
Arranged Employment is as follows:
Officers may take into account the
applicant‘s education and training, background, and prior work experience to determine
if the applicant meets this requirement. If they have any concerns about the
applicant‘s ability or likelihood to
accept and carry out the employment, they will communicate these to the
applicant and provide the opportunity to respond. (emphasis added)
[10]
The
Immigration Officer’s reasons clearly relate such a concern, as the Applicant’s
IETLS test results were the sole basis of the determination of the absence of
Arranged Employment, as well as the Language Proficiency requirement. While it
is true that the OP6 Manual is not binding, the following comment from Justice
Heneghan in Hernandez v Canada (Minister of Citizenship and Immigration), 2004 FC 1398 is relevant,
even if it pertains to a different aspect of the OP6 Manual:
The Manual purports to assist a visa
officer in assessing an application and although without the force of law, it
merits some attention.
In this regard, the above-cited provision of that Manual requires a visa
officer to give an applicant the opportunity to supply missing documentation
concerning settlement funds if they do not initially meet that criteria.
(emphasis added)
[11]
The
finding related to Language Proficiency was determinative of the application.
It had direct import on the Language Proficiency factor, the Arranged
Employment factor, and consequently, on the Adaptability factor. The
consequences of the finding in regards to language proficiency are within the
20-30 point range. Despite this finding, the Applicant fell short by four
points, as she is highly educated (Master’s degree), is within a reasonable age
and has experience, which is clear from her 63-point evaluation.
[12]
Evidently,
the Language Proficiency requirement is central to the linguistic objectives of
IRPA (see paragraphs 3(b) and 3(b.1) of the IRPA). This Court’s Judgment should
not be interpreted to lesson the value of linguistic factors in assessing
permanent residency requirements, all the contrary. In this respect, the Court
does not retain the Applicant’s argument that her arranged employment required
other languages in which she was proficient in, namely Hindi and Punjabi, and
that this was to be considered. The Language Proficiency criterion pertains to Canada’s official languages (see
subparagraph 76(1)(a)(ii) of the IRPR). Proficiency in other languages, while
laudable, is simply not relevant within the requirements for permanent
residency under the skilled worker class.
[13]
The Applicant’s
statements and educational background could reasonably infer some knowledge of
English. When this is considered with the claims of poor health when taking the
IETLS test, it seems as though the Immigration Officer’s decision to adjudicate
the matter without a fairness letter or an interview is unreasonable,
especially as the Officer knew that a second IETLS test was to follow. Surely,
procedural fairness calls for further inquiry by the Officer in such a case,
through a letter or an interview.
[14]
The case
is not as in Al Turk v Canada (Citizenship and Immigration), 2008 FC 1396, where no notice was given
to the Officer that another English examination was to be taken. Here, there
was a notice. Also, the Court disagrees with the Respondent’s reading of El
Habet v Canada (Citizenship and Immigration), 2009 FC 776, as the matter is
wholly different than the case at bar, as Mr. El Habet did not take issue with
his IETLS test results and relied on other grounds for his application.
[15]
Although
in the context of a work permit application, Justice Beaudry’s comments in Li v
Canada (Citizenship and
Immigration), 2008
FC 1284, at para 35 are on point when he stated that:
There is no statutory right to an
interview (Ali v. Canada (Minister of Citizenship and Immigration), 1998 CanLII
7681 (F.C.), (1998) 151 F.T.R. 1, 79 A.C.W.S. (3d) 140 at paragraph 28).
However, procedural fairness requires that an Applicant be given the
opportunity to respond to an officer’s concerns under certain circumstances.
When no extrinsic evidence is relied on, it is unclear when it is necessary to
afford an Applicant an interview or a right to respond. Yet, the jurisprudence
suggests that there will be a right to respond under certain circumstances.
[16]
It is
clear that assessing the breadth of procedural fairness in a case must be
adapted to the context in which it arises (Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817). In this case, where a
manual provided clear guidance that more information should be sought, where
one finding on language proficiency derailed the whole claim for permanent
residence and where there was evidence that another test was to be taken, it
seems that procedural fairness should have extended to an interview or a
fairness letter. The record is not clear as to why the second IETLS test result
was not brought forward, and this test result is not part of the Tribunal
Record. It is clear there is a reciprocal obligation on the part of the
Applicant and the Officer to ensure all the information is accounted for and
brought forth diligently, which in this case may have been lacking on the part
of both Parties.
[17]
In a case
such as this, this Court finds that immigration policy must be meaningfully
addressed. This implies that the matter be sent for redetermination, as the
Applicant could be found to be well above the passing score of 67 for permanent
residence. As such, the application for judicial review is granted. No question
for certification arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the
application for judicial review is granted and the matter shall be returned to
a different Visa Officer for a new, complete determination. No question is
certified.
“Simon
Noël”
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