Al-Kassous v. Canada (Citizenship and Immigration), 2007 FC 541

 

Date: 20070523

Docket: IMM-5735-06

Citation: 2007 FC 541

OTTAWA, Ontario, May 23, 2007

PRESENT:     The Honourable Max M. Teitelbaum

 

 

BETWEEN:

AL-KASSOUS, MOHAMED ABDULLAH

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review of a decision of S. MacKay, an immigration officer, (the Officer), dated August 16, 2006, wherein the applicant’s application for permanent residence as a member of the skilled worker class was refused.

 

[1]               Mohamed Abdullah Al-Kassous, the applicant, is a citizen of Yemen. He lived in France from 1971 to 1979 where he obtained an undergraduate degree. He later completed a Master’s degree from a French institution in Yemen. The applicant believes he is fluent in French and requested that French be evaluated as his first official language for the purposes of his application for permanent residence.

 

[2]               Under subsection 79(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the Regulations), an applicant in the skilled worker category is assigned points for his ability in the official languages based on either test results from designated organizations (paragraph 79(1)(a)) or on evidence in writing (paragraph 79(1)(b)).

 

[3]               The applicant submitted International English Language Testing System results as evidence of his English language proficiency and a written submission as evidence of his French proficiency. In a letter dated November 26, 2005, the visa office informed the applicant that his submissions with respect to his French language ability were inconclusive and that he was being given the opportunity to submit language proficiency test results before the final assessment of points for his French ability would be done. The letter also noted that further written submissions by the applicant would not be accepted.

 

[4]               The applicant’s counsel, in a letter dated May 30, 2006, informed the visa office that the test for French language proficiency was not available in Yemen. It noted that the applicant had completed a Bachelor’s degree and a Master’s degree in French which required him to be fluent in French and asked the visa office to advise if this was sufficient.

 

THE DECISION UNDER REVIEW

[5]               The Officer awarded the applicant a total of 64 points. The passmark at the time was 67 points. He was awarded 14 points out of a possible maximum of 24 points for official language proficiency. Six of the points awarded were for the applicant’s English ability and eight points were awarded for his French ability.

 

[6]               The relevant portion of the Officer’s CAIPS notes read as follow:

PI completed his bachelor’s degree in France from Sept 1972 to June 1975. As per his Schedule 1, he lived in France from Sept 1971 to Nov 1979. PI complete his graduate studies from Sept 1987 to June 1989 at a French institution. However, according to his Schedule 1, did not live in France at that time.

 

PI’s self-identified native language is Arabic. As per the information provided in his application, subj had spent 18 years of the past 26 years residing in Yemen which is an Arabic-speaking environment, PI’s studies in France were concluded approximately 17 years ago. I am not satisfied that subj has demonstrated French language ability at benchmark 8 for all categories according to the Canadian Language Benchmarks.

 

Given PI’s studies in France, the duration of time since the completion of those studies and the time that he has spent in a French-speaking environment, I am satisfied that subj’s abilities are consistent with benchmark 6 for of (sic) the Canadian Language Benchmarks for speaking, listening, reading and writing. 2 points awarded for each category for a total of 8 points for first language ability.

 

 

SUBMISSIONS OF THE PARTIES

[7]               The only aspect of the Officer’s decision that the applicant is challenging is the points awarded for his French ability. The applicant’s arguments on this issue are twofold. First, he submits that the Officer breached the duty of procedural fairness owed to him by refusing to allow him to provide further written evidence on his language proficiency. Second, he submits that the Officer erred in the assessment of the language points. In particular, he submits the Officer failed to assess the applicant’s French language ability against the Canadian Language Benchmark as required by section 79(2) of the Regulations.

 

[8]               The respondent submits that the Officer did not breach the duty of procedural fairness because the Officer gave the applicant two opportunities to submit the French language proficiency test results.  The respondent also notes the applicant has the burden to provide all the necessary evidence to establish that he met the requirements for a visa. Finally, the respondent submits that based on the evidence before the Officer and, in the absence of conclusive language proficiency test results, that it was reasonable for the Officer to assess the applicant’s French proficiency as moderate as opposed to high.

 

LEGISLATIVE PROVISIONS

[9]               The relevant provisions of the Regulations read as follows:

 

ISSUES

[10]           This case raises the following issues:

1.      Did the Officer breach the duty of procedural fairness owed to the applicant by refusing to allow the applicant to provide further written evidence on his language proficiency?

 

2.      Did the Officer err in the assessment of the language points for the Applicant’s French language ability?

 

3.      Did the Officer err in the assessment of the language points for the Applicant’s French Language ability by not explaining why he awarded only 2 points for each of (1) speaking, (2) listening and reading and (3) writing?

 

ANALYSIS

 

1)      Breach of procedural fairness

[11]           The first issue is one of procedural fairness and, consequently, the question of standard of review does not arise. The Court will accord no deference to a decision if it is determined that the administrative decision-maker failed to provide procedural fairness (C.U.P.E. v. Ontario (Minister of Labour) [2003] 1 S.C.R. 539).

 

[12]           The applicant relies on the case Islam v. Minister of Citizenship and Immigration, 2006 FC 424, for the proposition that it is a breach of procedural fairness to deny an applicant the opportunity to submit either written evidence of proficiency or test results as provided in subsection 79(1).

 

[13]           In Islam, the applicant was notified by way of letter that his written submissions did not support the level of proficiency he claimed in his application. The letter stated that the applicant could submit language test results but that further written submissions would not be accepted. Finally, it stated that the applicant’s failure to submit the language test results would result in his application being assessed on the basis the information on file at that time.

 

[14]           At paragraphs 7- 9 of Islam, Mr. Justice Campbell held that:

Counsel for the Applicant argues that, in light of the fact that the final decision was not made until after the interview, denying the Applicant the opportunity to submit further written evidence amounts to an error of law and denial of due process because the IRP Regulations clearly provide the Applicant with the option of either submitting to the prescribed test or submitting written evidence. Counsel for the Applicant contends that, had the Applicant been given the opportunity to submit further written evidence, he could have provided other documents which would have corroborated his proficiency in the English language.

I agree with Counsel for the Applicant.

Although the written evidence initially submitted by the Applicant was found to be unacceptable, the Visa Officer provided the Applicant with a second chance to meet the requirements of s.79; that is, he could either submit to the prescribed test or submit written evidence. The fact that the Applicant was precluded from exercising one of the options in this second attempt, in my opinion, is a denial of due process.

 

 

[15]           The respondent submits that Islam does not apply as, in that case, Campbell J. found that the interview amounted to a second chance for the applicant to meet the requirements of section 79 of the Regulations.

 

[16]           I do not find this argument to be persuasive. The reasoning in Islam is clear: if a second chance to meet the requirements of section 79 is provided then it is a breach to preclude an applicant from exercising one of the options provided in section 79. Here it was clear from the letter of November 26, 2005 that no decision had been made and that the applicant was being given a second chance to meet the requirements of section 79. Therefore, I find that the Officer breached the duty of procedural fairness.

 

2)      The Officer’s assessment of points for French language ability

[17]           The applicable standard of review for the second issue must be determined by the pragmatic and functional approach.

 

[18]           The Immigration and Refugee Protection Act, S.C. 2001, c. 27, contains neither a privative clause nor a right of appeal.

 

[19]           With respect to assessing an applicant’s language ability and determining how many points to award an applicant for language ability, a visa officer has more expertise than the Court. This factor suggests that deference be given to the Officer’s decision.

 

[20]           Section 79 of the Regulations sets out the scheme for awarding points for proficiency in the official languages to applicants applying for permanent residence under the federal skilled worker class. As this provision determines the rights of individual applicants under the Immigration and Refugee Protection Act, less deference should be given to the visa officer’s decision.

 

[21]           The final factor is the nature of the question. The Officer was required to assess the applicant’s French ability based on his written submissions. This is a finding of fact that required the Officer to assess the information on the applicant’s file about his experience with French and to assess the applicant’s written submission against the Canadian Language Benchmarks.

 

[22]           Weighing these factors, the applicable standard of review is the standard of reasonableness simpliciter.

 

[23]           The decision letter stated that the Officer’s assessment of points for the applicant’s French ability was based on his written submissions, as well as the information on file; however, the CAIPS notes contain no analysis of the applicant’s writing sample, nor any analysis as to the issue of only 6 points being awarded for speaking, listening, reading and writing.

 

[24]           Subsection 79(2) of the Regulations states that the assessment of points for proficiency of the official languages are to be awarded based on the Canadian Language Benchmarks (Standards linguistiques Canadiens for French). The CAIPS notes state only that “I am not satisfied that subj has demonstrated French language ability at benchmark 8”. This conclusion appears to be based entirely on the fact that the applicant’s studies in France were concluded 17 years ago as the CAIPS notes contain no reference to the applicant’s writing sample. The applicant’s writing sample was an important part of his submissions. The Officer was required to assess the applicant’s French language ability with reference to the information about the applicant’s experience with French as well as on the writing sample provided. In my opinion, the failure to assess the writing sample in accordance with the Canadian Language Benchmarks makes the decision unreasonable.

 

 

 

 

JUDGMENT

 

 

            For the above reasons, the application for judicial review is allowed and the matter is referred for a new hearing before a different Immigration Officer.

 

            Either party may submit a question for certification within seven days of today’s date.

 

 

 

“Max M. Teitelbaum”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-5735-06

 

STYLE OF CAUSE:                          Mohamed Abdullah AL-KASSOUS v. M.C.I.

 

PLACE OF HEARING:                    OTTAWA, Ontario

 

DATE OF HEARING:                      May 22, 2007

 

REASONS FOR JUDGMENT:       TEITELBAUM D.J.

 

DATED:                                             May 23, 2007

 

 

 

APPEARANCES:

 

Mr. Mike Bell 24 Bayswater Avenue Ottawa, Ontario	FOR THE APPLICANT
Mr. Lorne Ptack	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Mike Bell	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT