Patel v. Canada (Minister of Citizenship and Immigration), docket IMM-2666-97

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docket IMM-2666-97

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Date: 19980819

Docket: IMM-2666-97

BETWEEN:

KIRANBHAI GOVINDBHAI PATEL

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGEMENT

(Delivered from the Bench at Toronto, Ontario

on Tuesday, August 18, 1998)

HUGESSEN, J.:

[1] This is an application to review a decision of a visa officer. In his memorandum of fact and law, counsel originally took three points, but one of them was abandoned at the hearing so that only two remain to be dealt with by this Court.

[2] The first point taken by counsel has to do with the visa officer's failure to assess the applicant's spouse. Counsel says, and the material in the Record before me lends a good deal of support to this assertion, that both the applicant and his spouse filed applications and paid the requisite fee, each application showing the spouse, in one case the husband, in the other the wife, as being a dependent. It is quite clear that indeed the visa officer only assessed the applicant and not the applicant's wife. I note that the wife is not a party to these proceedings. So far as the applicant's application is concerned, there was no obligation on the part of the Visa officer to assess the spouse unless the applicant requested him to do so in his stead. There can be no other interpretation in my view of the clear words of subsection 8(1) of the Regulations which state in part that:

a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant. (emphasis added)

[3] If it is true, as counsel says, that the spouse separately applied for a visa, and if it also true, as counsel says, that that application was never dealt with by the visa officer, then it seems to me that the spouse has her remedy. The visa officer should be asked to deal with the application and if he fails to do so a remedy can be taken in this Court. Equally, if he does do so in a manner which is unsatisfactory there is also a remedy available. What to me is quite plain is that in the present proceedings to which the spouse is not a party I can do nothing with respect to the applicant's first point.

[4] The Applicant's second point has to do with an allegation regarding the conduct of the interpreter at the interview between the visa officer and the applicant.

In his affidavit the applicant says as follows:

At this stage of the interview, the interpreter said to me in Gujarati that if I spoke in English, the visa officer might make me confused, so it's better to use the interpreter and speak in Gujarati. This is why I gave my interview answers from then on in Gujarati. I would have given the interview in English if the interpreter did not make these comments.

There is no doubt that if that assertion by the applicant is accepted at face value, the interpreter acted improperly. I have, however, considerable doubt as to whether that statement can be accepted at face value. It appears to be clearly contradicted by the visa officer's affidavit which states at paragraph 8 as follows:

At the start of the interview, I confirmed orally, through the interpreter, the information contained in the Applicant's application form (IMM8). I gave the Applicant an opportunity to have the interview conducted in either English or Gujarati. I informed the Applicant that it would be to his advantage to conduct the interview in English as an assessment of his language ability would be an important factor in the consideration of his application. At this point, the Applicant stated that he would prefer to conduct the interview in Gujarati, through an interpreter. For this reason, and based on the English spoken by the Applicant during the interview, the spoken language assessment was left as "WITH DIFFICULTY"as indicated in the Applicant's application form.

[5] I do not, however, find it necessary to determine in a definitive manner which version is the correct one, although I confess that I think that given by the visa officer is inherently the more probable. However, it is my view that even if one accepts the applicant's assertion at face value there is no indication that, however improper the interpreter's actions may have been, they caused him no prejudice. It is quite clear from the visa officer's affidavit, the paragraphs which follow the one that I just read, that he conducted an independent assessment of the applicant's ability to speak English, to write English, and to read English, and that he assessed all three of those abilities as being "WITH DIFFICULTY" . That was clearly an assessment that was within the visa officer's competence and whether or not the interpreter gave bad advice to the applicant in the Gujarati language in a way that the visa officer was unable to control or even be aware of, simply did not result in any prejudice to the applicant.

[6] As a result the application will be dismissed. Before entering the order I invite submissions from counsel as to whether this case raises any issue of importance.

"James K. Hugessen"

Judge

Toronto, Ontario

August 19, 1998

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-2666-97

STYLE OF CAUSE: KIRANBHAI GOVINDBHAI PATEL

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

DATE OF HEARING: TUESDAY, AUGUST 18, 1998

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: HUGESSEN, J.

DATED: TUESDAY, AUGUST 18, 1998

APPEARANCES:

Mr. Max Chaudhary

For the Applicant

Ms. Cheryl Mitchell

For the Respondent

SOLICITORS OF RECORD: Mr. M. Max Chaudhary

Barrister and Solicitor

255 Duncan Mill Road

Suite 812

North York, Ontario

M3B 3H9