Date: 20080402
Docket: IMM-1743-07
Citation: 2008 FC 419
Vancouver, British Columbia, April 2, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MUNIRUL
ALAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Munirul Alam (the “Applicant”) seeks judicial review of the decision of Stella
Sweetman-Griffin, First Secretary at the High Commission of Canada in London, England. In her
decision, dated February 14, 2007, the Applicant’s application for permanent
residence, as a member of the federal skilled worker class, was rejected. The
Applicant challenges the decision on the grounds that it was made in the
absence of procedural fairness.
[2]
The
Applicant submitted his application for permanent residence in July 2004. In
his letter dated July 11, 2004, the Applicant provided an assessment of his
qualifications, including an assessment of his language abilities.
[3]
On
September 19, 2006, an entry was made in the Computer Assisted Immigration Processing
System (“CAIPS”) notes as follows:
PA requested to update all docs. PA
claims proficiency in both English and French. I am not satisfied that PA has
proficiency claimed, IELTS and TEF required.
[4]
By
letter dated January 10, 2007, the Applicant advised that if the IELTS
certificate is required, it “will be procured end of this month”. According to
the CAIPS notes entry for January 11, 2007, the Applicant was advised by email
that the failure to provide the results of the IELTS English language tests
would likely result in the award of zero units for English proficiency. The
writer also pointed out that the English language test results were requested
in September 2006 and the Applicant had been advised, at that time, that the
assessment of his application would proceed after 90 days.
[5]
The
Applicant sent an email on January 16, 2007, advising that he hoped to provide
the IELTS test results in April 2007.
[6]
On
February 14, 2007, the Applicant’s application for permanent residence was
rejected on the grounds that he had failed to obtain sufficient points to
quality for immigration to Canada. The Applicant was awarded a total of 62
points with 2 points awarded for “official languages proficiencies”.
[7]
The
CAIPS notes entered on February 14, 2007 show that the decision-maker recorded
the following:
I am not satisfied that PA [the
Applicant] has any proficiency in English for which points can be assessed. PA
indicated high proficiency in all competencies, but he has not
lived/worked/studied in a country where English is the first official
language. He claims basic French proficiency in two competencies. As we did
not request TEF, I will assess these points-2.
[8]
The
Applicant now argues that the decision-maker committed a breach of procedural
fairness by failure to extend the time within which he could submit the IELTS
test results. He also argues that the High Commission breached the duty of
fairness for not providing a clearer answer to his request that a decision on
his application be deferred until he undertook the IELTS test in April 2007.
[9]
The
issue of a breach of procedural fairness is reviewable upon the standard of
correctness; see Ha v. Canada (Minister of
Citizenship and Immigration), [2004] 3 F.C.R. 195 (F.C.A.). Did the
High Commission commit a breach of procedural fairness in the manner in which
the decision of February 14, 2007 was made? In my opinion, the question must
be answered in the negative, having regard to the statutory framework set out
in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”) and the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the “Regulations”).
[10]
Subsection
71(1) of the Act imposes the burden upon an applicant to show that he or she
meets the requirements for admission into Canada as an
immigrant. Section 75 of the Regulations describes the skilled worker class.
Subsection 76(1) of the Regulations sets out the applicable selection criteria,
including the assessment of language proficiency in accordance with section 79
of the Regulations. Subsection 79(1) of the Regulations provides 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.
|
[11]
The
Applicant, in this case, purported to conduct a self-assessment of his English
language proficiency, on the basis of his multi-year employment with a
multinational company. He did not undertake testing pursuant to paragraph
79(1)(a) of the Regulations. The Visa Officer did not share the Applicant’s
view of his English language proficiency. The assessment of the Visa Officer
was reasonably open to him, having regard to the Regulations.
[12]
In
my opinion, the Visa Officer was under no legal obligation to provide a further
extension of time to allow the Applicant to take the IELTS testing in light of
the advice given in September 2006 that IELTS tests were required within 90
days. Although the Visa Officer could have granted a further extension, he was
not obliged to do so and no breach of procedural fairness resulted from the
decision to proceed with assessing the Applicant’s application in
January-February 2007.
[13]
In
the result, this application for judicial review is dismissed. There is no
question for certification arising.
JUDGMENT
This
application for judicial review is dismissed. There is no question for
certification arising.
“E.
Heneghan”
Email this Content