Date: 19980601
Docket: IMM-1679-97
BETWEEN:
ZHEN ZHANG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR JUDGMENT AND JUDGMENT
delivered orally from the bench on March 24, 1998
MULDOON, J.
[1] THE COURT: Well, Mr. Kabateraine, you have done as well for your client as anyone could do, but as must be pretty obvious from our dialogue and my dialogue with Mr. Tyndale, this Court is not convinced that the visa officer has made an error or double counted.
[2] It is a powerful argument which you advanced, but it just does not seem to fit in this case.
[3] It is true that language is the gravamen of our assessment of personal suitability, but not language skill per se - initiative, motivation. She says his language is abysmal. "It is with great difficulty we needed an interpreter."
[4] We have that sometimes in citizenship cases, can you imagine, people needing an interpreter! But this man was not applying for citizenship, he was applying for landing in Canada and she assessed his English language performance at two points and his French language performance at zero.
[5] And then she had to come to personal suitability. There is no allegation that this applicant had attempted courses in English nor that he had some inherent linguistic flaw in his makeup such as dyslexia or the like, or aphasia. No indication there. He seems to be a normal person from what can be seen.
[6] So then the visa officer asked herself this proper question: "Given that the language skills are abysmal - and I am not going to double count that", or at least she does not seem to have double counted that - "given that they are abysmal, what has he done to rectify and improve?" And he seems to have done nothing to rectify and improve. He does not give her certificates from courses he has taken. He just swears at her when she says that he has not and makes obscene gestures to her.
[7] Well, the Court is not counting that. Some people have more self-control than others and they get disappointed and he had pinned his hopes, no doubt, on coming to Canada, so the Court will not count that against him.
[8] The Court looked at, and examined with counsel, the jurisprudence, and it should be cited here. There is, in no particular order, the case of Chatrova and three dependants, or perhaps two, perhaps Valery(phonetic) is her husband. IMM-1622-95, a decision of Madam Justice Reed of this court on April lst, 1996, and there again there is some discussion of language skills. And there again it is not apparent that the visa officer erred because the visa officer has to assess whether language skills in one of the two official languages of Canada, whether the command of the language is fluent, not flawless. And that is what the visa officer did.
[9] The applicant said in her letter that she had never claimed her English to be flawless, but she did claim to be fluent.
[10] Now, it was obvious that in the case at bar, Zhen Zhang was far, far below the level of fluency. And his educational experience in English was not emphasized by him or brought into account.
[11] In the Chatrova case, Madam Justice Reed points out that that applicant has a university degree for which her major area of study was English language and literature. Following her graduation, she held several jobs including that of English teacher and librarian. And in her present occupation she also translates documents, when required, into English, according to Madam Justice Reed.
[12] Well, that difference in circumstances is so great as to conclude that the Chatrova case is just not applicable in the present circumstances.
[13] Next, in chronological order, is the case of Hoang Lo v. The Minister of Citizenship and Immigration, IMM-4097-96, a decision of Mr. Justice Gibson of this court.
[14] And again Mr. Justice Gibson gives a closely reasoned judgment, but again it appears not to be relevant to the circumstances of Zhen Zhang.
[15] And finally, there is the case of Mohammed Khalid, IMM-1565-97, a decision of Mr. Justice Rothstein of this court, delivered from the bench at Toronto on Monday, October 20th, 1997.
[16] There it would appear that the visa officer clearly double counted. There she made reference in personal suitability to the fact that the applicant, Khalid, had no relatives in Canada. And Justice Rothstein says there are already accountable points for having relatives in Canada and that would constitute double counting.
[17] One might just mention the second full paragraph on page 2 of the typescript of Khalid. Justice Rothstein says:
| Then the applicant says that the visa officer, in assessing personal suitability, found that the applicant had no relatives in Canada. |
[18] And the citation is Zeng v. Canada, (1991) 121 N.R. 252 Court of Appeal and Feng v. Canada, (1996) 126 F.T.R. 188, per Dubé J.:
| Stand for the proposition that this consideration should not be taken into account in assessing an independent applicant in which the required 70 units of assessment already discounts for this factor. |
| In this case the applicant was awarded 66 units with 5 units for personal suitability. Even had the visa officer not taken this factor into account, there is some doubt that the applicant would have been awarded at least 9 units to reach the minimum 70 unit threshold because of the other factors affecting personal suitability considered by the visa officer. |
However...
and here is the principle which is true indeed,
| ...However, it is not for the Court to substitute its view for that of the visa officer as to the assessment of units. It is mathematically possible that had the visa officer not taken into account this irrelevant consideration, the applicant might have been awarded 70 units. |
[19] From what the Court can appreciate from the facts of the case at bar, this, too, is not applicable. Here the visa officer assessed language skills and awarded two units. That is apparent from paragraph 11 of her affidavit.
[20] And then she had to come along and assess personal suitability. And she made that assessment taking into account, as a given, poor language skills, but not assessing language skills again; assessing motivation, assessing initiative, assessing how this applicant planned to make his new life in Canada. Nothing to do with language skills at that stage, but asking herself why are the language skills so poor.
[21] And she came to a conclusion which is certainly justifiable on the record that his personal suitability was accordingly very low, and assessed one unit, making for a total of 67 units.
JUDGMENT:
[22] In truth, the Court cannot find an error in the visa officer's assessment of the applicant.
[23] As noted earlier, the applicant has no quarrel with the skill and persistence with which his counsel argued this case, but there is an old expression which the Court will put in modern non-sexist terms, and that is that you cannot get a silk purse from a swine's ear. And counsel is faced with the case he has. If counsel's case is a swine's ear, it remains a swine's ear. And not even the most brilliant advocacy in the world will make it into a silk purse. It appears that such is the case here.
[24] The Court would not for a moment insult Mr. Zhen Zhang, and so one must give the Court a little literary latitude for the old adage. It is not meant to be insulting. It is meant to say that Mr. Zhen Zhang has had a fair hearing and a strong advocate, and yet the case is such that there is nothing one can do with it unless one can find the visa officer has committed a reviewable error. And the Court finds that there is no such reviewable error.
[25] Now, the Court must ask counsel is there some question of a question to certify? Is there some consideration of a certifiable question? The Court is not sure if that is appropriate, but asks counsel.
MR. KABATERAINE: I have no question, My Lord.
THE COURT: Thank you.
Mr. Tyndale?
MR. TYNDALE: No, My Lord.
THE COURT: Then we are all done. The case is not unusual.
If there be no other observations by counsel, we shall rise.
THE REGISTRAR: This hearing is concluded.
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