Date: 20030425
Docket: IMM-1403-02
Neutral citation: 2003 FCT 516
Ottawa, Ontario, this 25th day of April, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
BIN MA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for judicial review of the decision of a Visa Officer ("officer") stationed in Hong Kong. The applicant submitted his application for permanent residence, in the "independent category", on October 8, 1999. He was interviewed by the officer on February 26, 2002, in Hong Kong, and was informed by letter dated February 27, 2002 that his application had been refused.
BACKGROUND FACTS
[2] The applicant applied as a computer programmer. The officer states that she was satisfied with the applicant's skills in computer programming, and awarded him the maximum units of assessment. The officer then assessed his English during the interview by administering language tests. She found that the applicant was able to read and write in English "with difficulty" and gave him 2 units of assessment for his English ability.
[3] In her affidavit, the officer states that she awarded the applicant 4 units for "personal suitability". She took into account:
[T]he fact that Mr. Ma had not demonstrated efforts to improve his English language abilities since submission of his application for permanent residence, that Mr. Ma had no experience studying, travelling, or working outside the PRC and, that although Mr. Ma presented materials on employment opportunities in Canada downloaded from the Internet, he was unable to satisfy me that he understood and appreciated them. [paragraph 10]
[4] The officer further states in her affidavit:
I advised Mr. Ma of my assessment at the interview, explained the areas of concern I had, and gave him the opportunity to make further submissions. Mr. Ma then apologized for his bad manner at the beginning of the interview [being nervous]. I advised him that his manner had no bearing on my decision to refuse his application. He then requested another assessment of his English skills, which I declined as I was of the opinion that Mr. Ma had been given ample opportunity to demonstrate his English abilities.
[5] The officer's CAIPS notes state:
PI had no experience studying, travelling or working outside of the PRC, which might pose difficulties to his adapting to Canadian environment. 4 for personal suitability. Failed selection. I explained areas of concerns to PI and afforded him an opportunity to respond. He apologized for his bad manner at the beginning of this interview... (emphasis added).
[6] For his part, the applicant states that the officer advised him, at the end of his interview, that his application would be refused because his English ability rated only 2 points. The applicant states that the officer did not tell him that she had any concerns about "adaptability, motivation, initiative or resourcefulness" and that the officer did not tell him that he had received a low mark for "personal suitability".
ISSUE
[7] Did the officer err in failing to observe a principle of procedural fairness by failing to inform the applicant of her specific concerns regarding his motivation, initiative and resourcefulness during her assessment of his personal suitability so that he could respond in a meaningful way?
ANALYSIS
[8] On one hand, the applicant submits that the officer had a duty to advise the applicant of any concerns she had such a way as to allow the applicant to respond in a meaningful way: He v. Canada (Minister of Citizenship and Immigration) (1999), 168 F.T.R. 287, Chen v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 347.
[9] On the other hand, the respondent states that the officer does not have a duty to advise the applicant of her tentative conclusions regarding the applicant's personal suitability, unless the evidence considered is extrinsic or not known to the applicant: Bara v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 992; Jurawan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1240; Javed v. Canada (Minister of Citizenship and Immigration ), [2003] F.C. J. No. 95.
[10] The respondent submits that, in any event, the officer did notify the applicant of her concerns and gave him a chance to respond, evident from a review of her affidavit and the Computer Assisted Immigration Processing System (CAIPS) notes.
[11] In He, supra, relied upon by the applicant, the officer had drawn the impermissible inference that the applicant was not "flexible or adaptable" from the fact that she had only held one job in her employment history. The drawing of this particular inference had been negatively commented upon in previous cases and was found to be a reviewable error in He.
[12] In Bara, supra, cited by the respondent, the Court held that a visa officer is not required to put before the applicant any tentative conclusions he may be drawing from the material before him but that if the officer relies on extrinsic evidence not brought forward by the applicant the officer must give the applicant a chance to respond to that evidence.
[13] In the case at bar, the officer states that she based her evaluation of the applicant's personal suitability on the fact that he had not demonstrated efforts to improve his English abilities since tendering his application two years earlier, that he had no experience studying, travelling, or working outside China, and that he did not appear to adequately understand some of the Internet materials on employment opportunities he had presented at the interview.
[14] I find that the officer based her judgment on the interview and the materials presented by the applicant, rather than on extrinsic evidence as was the case in He. Consequently, I find that the Bara line of cases is applicable to the case at bar. Accordingly, I find that there is no duty on the officer to present her conclusions to the applicant and give him an opportunity to respond to her assessment concerning personal suitability.
[15] Furthermore, I agree with the respondent that the evidence from the officer's CAIPS notes and her affidavit suggests that the officer explained her concerns to the applicant and afforded him an opportunity to respond. The use of the plural term "concerns" in the CAIPS notes indicates that the applicant's low score for English ability was not the only concern outlined by the officer and suggests that the low score for personal suitability was addressed as well.
[16] On a final note, the burden of proof pursuant to s. 8(1) of the Immigration Act, R.S.C. 1985, c. I-2 was, after all, on the applicant, and according to the officer, the applicant did not discharge this onus.
[17] Counsel for the parties did not propose any question for certification.
[18] For the reasons set out above, the judicial review is dismissed.
ORDER
THIS COURT ORDERS THAT:
This judicial review is dismissed without a certified question.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1403-02
STYLE OF CAUSE: Bin Ma v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver
DATE OF HEARING: April 15, 2003
REASONS FOR : THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: April 25, 2003
APPEARANCES:
Mr. Dennis Tanack FOR APPLICANT
(Barrister & Solicitor)
Ms. Sandra E. Weafer FOR RESPONDENT
(Department of Justice - Vancouver)
SOLICITORS OF RECORD:
Mr. Dennis Tanack FOR APPLICANT
(Vancouver)
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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