Date: 20080305
Docket: IMM-2379-07
Citation: 2008 FC 304
University of
Victoria, Victoria British Columbia, March 5, 2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
TARLOCHAN
SINGH BHULLAR
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult male person, a citizen of India. He has on
three occasions sought to obtain a temporary resident visa and work permit to
enter Canada under the
Live-In Caregiver Program (LCP). His third and latest application has been
refused in a written decision dated April 16, 2007 on the basis that the
Applicant did not have the ability to speak, read and listen to English at a
level sufficient to communicate effectively in an unsupervised situation. The
Applicant sought and obtained leave to seek judicial review of that decision
and asks to have it set aside and returned to a different person for
redetermination. For the reasons that follow, I find that the application is
to be dismissed.
[2]
The
Applicant applied for a visa and permit under the Live-in Caregiver Program (LCP)
in 2005. His sister and brother-in-law were living in Canada and extended an
offer to the Applicant to come to Canada and care for their
youngest child, then aged three years. On February 7, 2005, the Applicant was
interviewed by a Canadian Consular Officer in India identified
as NAJ. That Officer rejected the application on the basis that the offer of
employment coming from his sister was provided primarily to secure entry into Canada for the Applicant.
The Officer made several entries into the CAIPS notes concerning the interview
of February 7, 2005 including the following:
Interview conducted in English
language on this date. No interpreter was required. Applicant is able to
speak English and understand it although he has a thick accent.
Before any questions
pertaining to the job as a live-in caregiver were asked, I asked the Applicant
to explain his relation to the future employer in CDA. Applicant declares it
is his brother-in-law who is married to this sister. His parents also live in
CDA as permanent residents. His was refused in his AFL in 1998. Applicant is
now married and has a 9 month old daughter which he is leaving behind to go to
CDA and work as a live-in caregiver.
Given the answers, I doubt
that this job offer is a genuine one. However, I continue my interview to
assess whether the Applicant has truly completed his nanny training. I proceed
to ask him questions pertaining to his courses and Applicant is only able to
give rehearsed answers which do not appear very convincing. I asked Applicant
to describe his classroom and he could only say that it was big and that there
was chairs in it. Nothing else? I asked. He said no.
At this point, I stop the
interview because I am convinced that Applicant has no completed a nanny
training, nor that this job offer is genuine. Applicant is attempting to gain
entry in to CDA.
[3]
The
Applicant, undeterred, submitted a revised application and attended a second
interview, this time with an Officer identified as LNK, on May 4, 2006. The
CAIPS notes made during that interview state, inter alia:
Interview – conducted in
English
…
Satisfied that PA is able to
meet requirements of position as stated.
[4]
It
appears from subsequent CAIPS notes that LNK left this post and the matter was
handed over to another Officer, HC, for decision. Officer HC made notes in the
CAIPS system concluding:
…with all these factors taken
into consideration, I have concluded that on a balance of probabilities this
job offer was made primarily for the purpose of facilitating the subjects
admission to Canada. Refused.
[5]
Correspondence
to that effect followed with a request by the Applicant for reconsideration.
Ultimately, judicial review in this court was sought and, on consent, an Order
was issued, dated November 28, 2007 in file IMM-5063-06, requiring
re-determination by a different officer.
[6]
Thus,
on April 16, 2007 the Applicant attended a further interview, the third such
interview. This time with Officer SML. The interview lasted about 15
minutes. Before the Applicant left the premises he was handed a letter dated
April 16, 2007 advising that his application was refused. That letter appears
to be a form letter and the basis for refusal was indicated by a check mark
beside a box with the following caption:
“You do not have the ability
to speak, read and listen to English or French at a level sufficient to
communicate efficiently in an unsupervised situation.”
[7]
The
Applicant again sought and received permission to seek a judicial review of
that decision. This is that review.
[8]
In
this application the Respondent filed the affidavit of Officer SML who
conducted the interview of the Applicant. She attached her CAIPS notes of the
interview. She said in respect of that interview in paragraphs 12 through 16
of her affidavit:
12. The
question marks in my interview notes indicate that Mr. Bhullar’s answers did
not respond to the question asked or did not make sense. Mr. Bhullar appeared
to be picking up key words but many of his answers were not responsive. He did
not appear to understand my questions even though I spoke slowly, enunciated
clearly and rephrased my questions.
13. As
stated in my CAIPS notes, Mr. Bhullar’s voice was clear and most of his
pronunciation was easy to understand. Mr. Bhullar’s accent did not pose a
problem. His vocabulary and lack of sentence structure made his answers
difficult to understand.
14. As
indicated in my CAIPS notes, I conducted my interview with Mr. Bhullar in
English up until the point were I stated that I explained my concerns to Mr.
Bhullar in Punjabi. This was done with the aid of an interpreter fluent in
English, Hindi and Punjabi. All of the questions and answers up to that point,
including the statements followed by question marks, were in English.
15. I
gave Mr. Bhullar an opportunity to explain why he was having difficulty
communicating. The interpreter was able as Mr. Bhullar was free to respond in
English, Punjabi or Hindi. Mr. Bhullar responded in English. Each time I
explained or clarified my concerns, I did so in Punjabi through the
interpreter, as is my standard practice. As stated in my CAIPS notes, I was
not satisfied with his response.
16.
I
refused Mr. Bhullar’s application because I was not satisfied that he could
communicate in English sufficiently enough to work in an unsupervised setting.
[9]
Officer
SML attached her CAIPS made by her during the time of the interview. They are
lengthy so I reproduce only part to give a flavour of what was said:
How did you get this job offer?
Through CANUSA as well as directly through my employer.
Who is your employer? Mr.
Balbir Singh Mann, my brother-in-law.
Who will you be taking care of
in Cda? Earlier their grandmother has been taking care of them, but due to her
ill health, she has been shifted to her elder son. (???)
That’s not what I asked: who
will you be taking care of in Cda? I told you that earlier, her grandmother
was taking care of them . (???)
That’s not what I asked: who
will you be taking care of in Cda? Sorry ma’am?
Who will you be caring for in
Cda? Because I am applied for work permit as a LCP. When I completed by study
for as a nanny, at …(described how he studied and got this job( (???)
Who are the people you will be
taking care of in Cda? Designated persons?
Ma’am you are told me who are
the designated persons taking care of in Cda?
Children taking care of in
Cda? (???)
Yes. Response: I told you
earlier their grandmother taking care of… (???)
Who are the children? There
are three childrens – Guraimran Singh, Ajaypal Singh and Ria Kaur
How old are they? Gursiman is
10 yr, Ajaypal is 9 yer and Ria Kaur is 3 yr.
They are currently these
ages? In my file is 10 yer, 9 yer and 3 yer. This time they are growing.
(???)
I didn’t ask how old they were
before: how old are they now? When I submitted my file they are…(???)
How old are they now? Their
parents Balbir Singh Mann and Gurmeet Kaur Mann (???)
…
Concerns:
PA did not understand many of
my questions and seemed to guess at what I was asking by picking out key words,
even when I spoke slowly and enunciated clearly. I rephrased my questions,
several times and even then, they were not always understood. PA’s answers
were difficult to understand because he did not use basic English sentence
structure. I am not satisfied that PA has sufficient English to work
unsupervised as an LCP.
Also, although PA stated that
he took an LCP course, he could not answer basic questions about what he had
learned. This could have been due to his lack of English.
I am not satisfied that PA
meets the requirements. I am not satisfied that PA is able to work as a LCP in
a safe and effective manner.
Explained to PA my concern in
Punjabi. Gave PA the chance to respond.
Response: I fulfill your
reqs. I have a problem with my voice; that’s why you’re not able to understand
me.
What’s your problem with your
voice? Because I am hesitation with my voice that’s why some words not
speaking properly that’s why you not listen properly.
**Note that PA’s voice is
clear. And most of his pronunciation was easy to understand. It was only his
lack of coherent sentence structure and vocabulary that made is difficult to
understand his answers. Explained to PA.
Response: Because ma’am last
time I applied for interview as a nanny and counsellor satisfied with me and
she gave me a medical and in the last moment I don’t know what happened and she
refused me. This time, I think jealousy (???)
Who’s jealous; I don’t
understand, can you explain? You understand mo. I fulfill my requirements.
(???)
Explained that I did not
completely understand his answers and even if I had fully understood his
answers, it was still obvious that PA had not understood my questions. Gave
him an example of a question that he repeatedly has not understood.
Response: Yes, it is true I
did not understand your question twice, that’s why I asked you to repeat the
question.
Considered response and am
still not satisfied. Explained to PA.
REFUSED AT INTERVIEW.
ISSUES
[10]
The
Applicant submits the following three issues:
1. What
is the standard of review applicable to Officer SML’s decision?
2. Was
Officer SML’s decision that the Applicant did not have the ability to speak,
read and listen to English at a level sufficient to communicate effectively in
an unsupervised situation, unreasonable particularly since two other officers
at the Visa Post interviewed the Applicant and had apparently determined that
he was able to speak and understand English?
3. Did
Officer SML impose a higher standard for English language ability than required
by Ministerial guidelines contained in the Overseas Processing Manual Chapter
14, section 5.6?
[11]
The
Respondent contends that the Officer’s decision was not unreasonable and should
not be quashed.
STANDARD OF REVIEW
[12]
The
parties are in substantial agreement that the standard of review to be applied
in respect of decision of a consular officer who refuses to issue a work permit
to enter Canada as a live-in
caregiver is that of reasonableness simpliciter. Justice O’Keefe gave
careful consideration as to the standard to be applied in such a matter in Jhattu
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 853 and concluded that the
appropriate standard was that of reasonableness. I am in agreement with him.
WAS THE OFFICER’S
DECISION REASONABLE
[13]
The
next two issues proposed by Applicant’s counsel can be considered as one. Was
the Officer’s decision reasonable particularly having regard to the relevant
provisions of the Overseas Processing Manual?
[14]
That
Manual is provided to officers by Citizenship and Immigration Canada for use in
situations such as this one. Section OPI4, subsection 5.6 deals with language
ability and provides as follows:
5.6 Language ability
Live-in caregivers must have a
level of fluency in English or French that enables them to function
independently in an unsupervised setting and to protect the persons in their
care. They must be able to:
. Respond to emergency
situations by contacting a doctor, ambulance, police or fire department;
.Answer the telephone and the
door;
.Read the labels on
medication; and
. May be required to
communicate with others outside the home, such as schools, stores, or other
institutions
A proficiency in speaking,
understanding and reading will also ensure that caregivers understand their
rights and obligations and are not dependent on their employers to interpret
provincial labour legislation and employment standards. They will also be
better equipped to seek outside assistance in the even of personal difficulties
or if they find themselves in an abuse employment situation.
[15]
The
Manual does not have the force of law however it does establish appropriate
criteria against which a visa officer can measure the suitability of an
applicant (Seghal v. Canada (Minister of Citizenship and Immigration),
2001 FCT 212 at paragraph 10 and Legault v. Canada (Minister of Citizenship
and Immigration), [2002] 4 F.C. 358, 2002 FCA 125 at paragraph 20).
[16]
A
review of the record, including the affidavit of Officer SML and her CAIPS
notes attached as an exhibit, demonstrates that the Officer was alert and alive
to the considerations to be given to proficiency in the English or French
language to be shown by a person seeking a visa and permit under the Live-In
Caregiver Program. The fact that previous officers did not focus on the
Applicant’s language proficiency or apparently found his proficiency to be
acceptable is irrelevant to the present situation. The relevant consideration
is whether the decision now under review was reasonable. The fact that two
different officers had made notes to the effect that the Applicant apparently
had ability in the English language does not mean that they applied a different
test than Officer SML did in the decision under review nor does it mean that Officer
SML imposed an unreasonably high standard. I find that the decision of Officer
SML withstands a somewhat probing examination. It was reasonable and ought not
to be set aside.
[17]
No
party proposed and I find that there is no question for certification. No
party shall be awarded costs.
JUDGMENT
For the Reasons above:
THIS COURT ADJUDGES that:
1. The
application is dismissed;
2. There is no question
for certification;
3. No Order as to
costs.
"Roger
T. Hughes"
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