Date: 20081218
Docket: IMM-1392-08
Citation: 2008 FC 1396
Montréal, Quebec, December 18, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ABOULLA
AHMAD AL TURK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a visa
officer at the Canadian Embassy in London, UK, dated February 14, 2008,
refusing for insufficient points the applicant’s application for permanent
residence in a skilled worker category.
I. The facts
[2]
A
citizen of Jordan, married and
the father of one child, the applicant applied at the Canadian High Commission
in London (Mission), UK, for a
permanent resident visa as a member of the federal skilled worker class, under
the occupational category of IT System Manager.
[3]
The
applicant obtained a bachelor’s degree from the Princess Sumaya University College for
Technology in Jordan (UJ). According to his own self-assessment on file, his
level of English language proficiency was moderate in the abilities of reading,
writing, listening, and speaking.
[4]
The
visa officer proceeded with the initial screening of the applicant’s file and noted
that the applicant was required to complete the International English Language
Testing System (IELTS) test and provide supporting documents for relatives in Canada.
[5]
The
applicant subsequently informed by letter the Mission that he
would be taking the IELTS test in October 2007 and providing an additional
updated Family Information Form. This letter was received and recorded in the
Computer Assisted Immigration Processing System (CAIPS) by the Mission on August
28, 2007.
[6]
Following
this letter, the applicant would have sent to the Mission a second
letter dated August 21, 2008 wherein he indicated that he was required to
change the date of his IELTS test from October 2007 to May 2008. He also
provided in this second letter an updated mailing address. The Mission has however
no record of this letter ever being received.
[7]
In
the meantime, the Mission indicated in its file that it had not received
any IELTS test results from the applicant as requested.
[8]
On
February 13, 2008, the file was assessed by the visa officer who determined
that he did not have the required total points to warrant the issuing of a
permanent resident visa. Consequently, in a letter dated February 14, 2008, the
visa officer notified the applicant that his application was denied.
II. The Impugned Decision
[9]
Based
on the written submissions, the visa officer assessed the applicant with a
total of 62 units of a 67 points pass mark with an assessment of two points
for English language abilities to ultimately find that the applicant did not have
sufficient points to satisfy her that he would be able to become economically
established in Canada.
III. Issues
[10]
The
present case raises three issues:
a. Did the visa officer
breach the duty of procedural fairness?
b. Did the visa officer
err in her assessment of the applicant’s language ability?
c. Did the visa officer
err in failing to exercise her discretion pursuant to subsection 76(3) of the
Regulations?
IV. Analysis
Standard
of Review
[11]
This
jurisprudence of this Court has recognized that the decision of an immigration
officer in the assessment of an application for permanent residence under the
skilled worker class involves an exercise of discretion and should therefore be
afforded considerable deference. And to the extent that such an assessment is
carried out in good faith, in accordance with the principle of natural justice,
and without relying on irrelevant or extraneous considerations, the decision is
reviewable on the standard of unreasonableness.
Duty of
Procedural Fairness
[12]
The
applicant claims that he was denied procedural fairness because his application
was processed in February 2008 before his IELTS exam results from May 2008 were
received.
[13]
The
applicant explains that although he initially made arrangements to sit for his
exam in October of 2007, he subsequently changed his plans and rescheduled his
exam for May of 2008. He also claimed that he sent the Mission a letter dated
August 21, 2007, to notify the Mission of his new appointment for IELTS
testing, and that this letter was ignored by the visa officer who went ahead to
render her decision on the basis of his written submissions on file without
waiting for his rescheduled IELTS test results.
[14]
Although
the applicant has reproduced the letter of August 21, 2007 which he claims was
sent to the Mission, he has
filed no corroborating documents to show that this letter was in fact sent to
the Mission either by
mail, courier, or fax. There is no transmission fax sheet or mail receipt or
any courier documents in the applicant’s record, with the exception of his
own affidavit which attests that he did send the letter in question and the
hearsay evidence contained in his brother’s affidavit to the same effect. On
the other hand, the visa officer attests in her affidavit after reviewing the
entire file that she had been unable to locate therein any such letter and that
it was never received by the Mission.
[15]
The
onus was on the applicant to ensure that the Mission received his letter and
there is no indication that he even followed up with the Mission to make sure
his letter had in fact been received and most importantly that the Mission was
made aware of the fact that he would no longer be available to sit for the
IELTS exam in October of 2007. It appears that he simply presumed that his
letter had been received and that the Mission was agreeable to rescheduling
of his IELTS exam. It would have been wise and prudent and for the applicant to
obtain confirmation receipt of his letter of August 21, particularly when the Mission was
expecting the result of his IELTS exam for a certain date, and certainly not a
notice that the applicant had rescheduled his IELTS test.
[16]
The
burden was on the applicant to demonstrate that he met all the requirements and
selection criteria in order for him to obtain the approval for an immigrant
visa. The fact that he failed to exercise due diligence in making sure that the
Mission was made aware of the rescheduling of his IELTS exam cannot be blamed
on the visa officer, since she could base her decision only on the information
before her, as she did not receive the letter in this regard, and there was no
way for her to know that there was any problem with the scheduling of the IELTS
exam in October of 2007.
[17]
Furthermore,
it was reasonably opened to the applicant in advance of the final decision of
February 13, 2008, to file additional written submissions in support of his
professed English language abilities or to request an opportunity to do so in
the presence of the visa officer. The applicant has provided no evidence to
indicate that he made efforts to file additional documentation to support his
English language assessment, and no proof either to back up his claim that the
visa officer denied him an opportunity to file further written submissions.
[18]
Nevertheless,
the information on file submitted by the applicant ensured the visa officer
that the applicant would be taking the IELTS test in October 2007, not that it
would be delayed until May 2008. The visa officer waited until February 2008 to
complete the processing of the application, having noted that the test results
were not submitted within the time agreed with the applicant. The applicant had
only his visa application to look after and care, while the visa officer
presumably processed in the mean time many other visa applications. It appears
therefore that the applicant was negligent and is responsible for his own
misfortune for not having assured himself that the visa officer had received
his letter and was aware that the IELTS test had been rescheduled to May 2008 and
that the results would be as a result delayed.
[19]
Considering
the foregoing, the Court does not see how the visa officer could be accused of
having committed a breach of fairness. On the contrary, she had made the
applicant aware of her concern a long time before rendering her decision and it
was up to the applicant to satisfy this concern in due time or at least to make
sure the officer knew before her decision that he could not meet the target
date for the production of his language test results.
Language Assessment
[20]
The
relevant provisions of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations), read as follows:
|
79. (1) A skilled worker must specify
in their application for a permanent resident visa which of English or French
is to be considered their first official language in Canada and which is to
be considered their second official language in Canada and must
(a)
have their proficiency in those languages assessed by an organization or
institution designated under subsection (3); or
(b)
provide other evidence in writing of their proficiency in those languages.
|
79. (1) Le travailleur qualifié
indique dans sa demande de visa de résident permanent la langue — français ou
anglais — qui doit être considérée comme sa première langue officielle au
Canada et celle qui doit être considérée comme sa deuxième langue officielle
au Canada et :
a) soit fait évaluer ses
compétences dans ces langues par une institution ou organisation désignée aux
termes du paragraphe (3);
b) soit fournit une autre
preuve écrite de sa compétence dans ces langues.
|
|
Points
|
Points
|
|
(2) Assessment points for proficiency
in the official languages of Canada shall be awarded up to a maximum of 24
points based on the benchmarks referred to in Canadian Language Benchmarks
2000 for the English language and Standards linguistiques Canadiens
2002 for the French language, as follows:
[…]
(b) for
the ability to speak, listen, read or write with moderate proficiency
(i) in the
first official language, 2 points for each of those abilities if the skilled
worker's proficiency corresponds to a benchmark of 6 or 7, and
(ii) in the
second official language, 2 points for each of those abilities if the skilled
worker's proficiency corresponds to a benchmark of 6 or 7; and
(c) for
the ability to speak, listen, read or write
(i) with basic
proficiency in either official language, 1 point for each of those abilities,
up to a maximum of 2 points, if the skilled worker's proficiency corresponds
to a benchmark of 4 or 5, and
(ii) with no proficiency in either official
language, 0 points if the skilled worker's proficiency corresponds to a
benchmark of 3 or lower.
|
(2) Un maximum de 24
points d’appréciation sont attribués pour la compétence du travailleur
qualifié dans les langues officielles du Canada d’après les standards prévus
dans les Standards linguistiques canadiens 2002, pour le français, et
dans le Canadian Language Benchmarks 2000, pour l’anglais, et selon la
grille suivante :
[…]
b) pour les
capacités à parler, à écouter, à lire ou à écrire à un niveau de compétence
moyen :
(i) dans la
première langue officielle, 2 points pour chaque aptitude si les compétences
du travailleur qualifié correspondent aux niveaux 6 ou 7,
(ii) dans la
seconde langue officielle, 2 points si les compétences du travailleur
qualifié correspondent aux niveaux 6 ou 7;
c) pour
l’aptitude à parler, à écouter, à lire ou à écrire chacune des langues
officielles :
(i) à un niveau
de compétence de base faible, 1 point par aptitude, à concurrence de 2
points, si les compétences du travailleur qualifié correspondent aux niveaux
4 ou 5,
(ii) à un niveau
de compétence de base nul, 0 point si les compétences du travailleur qualifié
correspondent à un niveau 3 ou à un niveau inférieur.
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[21]
The
applicant takes the position that it is absurd for the visa officer to conclude
that he only possesses a basic level of English language ability considering
that he studied at UJ for 4 years and received all of his course instruction in
the English language. But this does not conclusively establish that the
applicant had either a moderate or high level of abilities in the English
language. He might very well have been able to pass all of his course work with
only a basic level of English language abilities.
[22]
In
addition, it is clear from the visa officer’s affidavit that he did take the
applicant’s experience at UJ into account but found it to be insufficient for
the purposes of demonstrating a moderate to high level of English language
abilities. The officer noted that although the applicant may have studied in
English, she was still not satisfied that he had studied in an English-speaking
environment such as a person having studied in the UK or the USA. And this
was quite reasonable for the visa officer to arrive at such a conclusion.
[23]
In
brief, the visa officer based her assessment of the applicant’s English
language proficiency on his written submission as well as the information on
file, but did not retain self-serving or unverifiable evidence provided by the
applicant and required him to complete the IELTS test that he agreed to pass,
and the visa officer was not informed before her decision that those tests had
been rescheduled and that the results would be delayed.
[24]
The
Court recognizes that subsection 79(2) of the Regulations states that the assessment
of points for proficiency of the official languages is to be awarded based on
the Canadian Language Benchmarks (CLB). The CAIPS notes state only that the visa
officer is “not satisfied that the applicant has demonstrated English language
ability at benchmark 8”. True, this conclusion contains no reference to the applicant’s
writing sample, which was part of his submissions. But the writing samples
provided by the applicant do not prove as such that he wrote these samples and
that they could not have been written instead by somebody else.
[25]
Reading
however the refusal letter in conjunction with the CAIPS notes and the
officer’s unchallenged affidavit, it becomes clear that the officer’s
assessment of the applicant’s English language abilities was made having regard
to the written submissions in the file of the applicant, his educational
experience and the CLB.
[26]
Considering
all the circumstances of the case in issue, including the applicant’s failure
to produce his IELTS test results on time and to make sure that the officer had
been made aware of the rescheduling of the IELTS test, the Court cannot see
that the visa officer’s failure to assess the applicant’s writing sample in
accordance with the CLB can be sufficiently important in itself as to render
the officer’s discretionary decision unreasonable.
[27]
In
brief and
for all these reasons, the Court finds that the impugned decision falls within
a range of possible and
acceptable outcomes which are defensible in respect of the facts and the law, the
assessment therein contained appears to have been carried out in good faith, in
accordance with the principle of natural justice, and without relying on
irrelevant or extraneous considerations. It therefore deserves the deference of the
Court. As a consequence, this Court concludes that the visa officer did not
commit a reviewable error and that her decision as a whole is reasonable.
Therefore, the judicial review application will be dismissed.
[28]
The
Court
agrees with the parties that there is no serious question of general importance to certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application is dismissed.
“Maurice E. Lagacé”
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