Date: 20030430
Docket: IMM-2651-01
Citation: 2003 FCT 529
Ottawa, Ontario, this 30th day of April, 2003.
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
EMMANUEL RAVINDRA STANISLAUS
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial view of the decision of C. Dundas, a visa officer with the Canadian High Commission in Colombo, Sri Lanka. In a letter dated March 26, 2001, the visa officer advised the applicant that his application for permanent residence was refused because he was awarded only 65 units of assessment, 5 points short of the 70 units needed to qualify.
[2] The applicant first applied as a member of the independent class for permanent residence in 1999. An interview was held in September 1999, following which the application was refused because the applicant was only awarded 65 units of assessment. The applicant was awarded 8 points for his knowledge of English and 4 points for personal suitability. The applicant later realized that because he had a relative in Canada, he could apply as part of the assisted relative category and receive an additional 5 points.
[3] Counsel for the applicant advised the Canadian High Commission in Sri Lanka, by letter dated February 14, 2000, that the applicant's wife's sister is a Canadian citizen and that the
applicant could have applied under the "assisted relative"category so that the applicant would only have needed 65 points for admission to Canada, rather than 70 points. Counsel requested that the High Commission re-open the applicant's file and assess the applicant on that basis. Since there was no response to this letter, counsel wrote again to the High Commission on October 10, 2000 resubmitting the request that the application be re-opened and reconsidered on this basis, or alternatively, considering a new application for the applicant. The respondent proceeded on the basis of a new application.
[4] The applicant submitted a new application in November 2000 and an interview was scheduled for March 2001. On the basis of the interview, a reading comprehension test and a writing sample from the applicant, the visa officer determined the applicant spoke English "well" and that he could read and write English "with difficulty." In accordance with the Overseas Processing Manual 5, the visa officer awarded the applicant 2 units out of 9 for his knowledge of English. The visa officer awarded the applicant 5 points for personal suitability based on his initiative and resourcefulness, and because on occasion he had worked with foreign nationals in Sri Lanka.
[5] The applicant submits the visa officer's assessment of his knowledge of English is unreasonable based on the wide discrepancy between the two assessments, which were conducted only 18 months apart. The applicant also claims that if the officer had concerns or doubts about the first assessment, he should have explained those concerns to the applicant at the interview. His failure to do so was a violation of procedural fairness.
[6] The visa officer was entitled to conduct a fresh assessment of the applicant's language ability at his interview in March 2001. He was not obligated to rely upon the earlier assessment in which the applicant was awarded 8 points. While visa officers may take into consideration prior assessments, they are not bound by any previous decisions and must assess an applicant on the basis
of the evidence before them, see Baber v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1077 at para. 9. If a visa officer was to rely solely upon a prior assessment, it could be considered an improper fettering of his or her discretion, see Parmar v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 203 at paras. 39-41, Shahwan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 785 at paras. 20-21 (T.D.) (QL), and Ahmed v. Canada (Attorney General), [1999] F.C.J. No. 499 at paras. 17-18 (T.D.) (QL).
[7] In the case at bar, the visa officer made a reasonable decision based on the evidence before him. In his affidavit the visa officer stated that the applicant had some difficulty understanding his questions during the interview. He also made note of this during the interview in the Computer Assisted Immigration Processing System notes. The applicant scored only 3/10 on the reading comprehension test and his writing sample contained numerous grammatical errors.
[8] Furthermore, there was no violation of procedural fairness. The officer raised his concerns about the applicant's language ability at the interview and informed the applicant that he would only be awarded 2 units for his knowledge of English. It was not necessary for the visa officer to directly address the prior assessment.
[9] For these reasons, this application must be dismissed. Neither party proposed a question for certification. The Court agrees that this case does not raise a serious question of general importance so that no question will be certified.
[10] Presumably, with the demands on the respondent, the respondent does not re-open applications after they are properly and carefully considered. However, the applicant is not limited from re-applying at any time. In this case, the applicant may wish to re-apply because of the significant discrepancy in the assessment of the applicant's ability to speak, read and write English. The first visa officer who assessed the applicant's ability awarded the applicant 8 units of assessment. Mr. Dundas, the second visa officer, assessed the applicant and only awarded the applicant 2 units of assessment for knowledge of English. This difference in the assessment may prompt the applicant to apply for a third time, which would entitle him to a fresh and independent assessment of his knowledge of English.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" ________________________________
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2651-01
STYLE OF CAUSE: EMMANUEL RAVINDRA STANISLAUS v. MCI
DATE OF HEARING: APRIL 16, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Kelen
DATED: APRIL 30, 2003
APPEARANCES BY: Jegan N. Mohan
For the Applicant
Leena Jaakimainen
For the Respondent
SOLICITORS OF RECORD: Jegan N. Mohan
Barrister and Solicitor
3300 McNicoll Avenue
Suite 225
Toronto, ON M1V 5J6
Tel: 416-609-8200
Fax: 416-609-8202
For the Applicant
Leena Jaakkimainen
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
Tel: 416-973-8290
Fax: 416-954-8982
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030430
Docket: IMM-2903-02
BETWEEN:
EMMANUEL RAVINDRA STANISLAUS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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