Date: 20031112
Docket: IMM-876-02
Citation: 2003 FC 1331
Ottawa, Ontario, this 12th day of November, 2003
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
ZHENGLI LIANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision made by Lily Chau, a Visa Officer, at the Canadian Consulate General in Hong Kong on January 28th (date of the letter), 2002 to deny an application for permanent Canadian residence in the "Independent" category.
[2] The applicant, Ms Zheng Li Liang, is a citizen of the People's Republic of China, living in Beijing. She submitted her application for permanent residence with the intended occupation of Computer Programmer as per National Occupational Classification ("NOC") No. 2163. She was interviewed on January 25, 2002. The Visa Officer entered her notes regarding this interview in the Computerized Assisted Immigration Processing System ("CAIPS"). In a letter dated January 28th, 2002, the Visa Officer notified Ms Liang that her application had been refused.
[3] The Visa Officer assessed the applicant under each of the factors listed in Column 1, Schedule 1 of the Immigration Regulations. The applicant was awarded a total of 68 points; the number of points required to qualify for a Visa is 70. As a result the Visa Officer refused the application.
[4] The applicant was awarded the following units of assessment for each of the selection criteria:
Age 10
Occupational factor 10
Education and Training Factor 15
Experience 06
Arranged Employment or designated occupation 00
Demographic factor 08
Education 15
Knowledge of English 00
Knowledge of French 00
Personal suitability 04
Total 68
[5] The applicant made application for:
1. An Order quashing the decision;
2. An order referring the matter to a different Visa Officer for redetermination of the application or, in the alternative, a writ of Mandamus directing the respondent to process the applicant's application for permanent residence made pursuant to the Independent applicant category in accordance with the direction of this Court; and
3. Such further relief and other relief as counsel for the applicant may advise and this Court deems just.
[6] The applicable standard of review for discretionary decisions made by Visa Officers with regards to immigration applications remains, as stated by the Supreme Court in [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at pages 7-8:
Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed on considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[7] The applicant claims that the Visa Officer, in allotting the applicant zero points for the English language assessment and four points for personal suitability despite her training and education in this area:
1. unduly fettered her discretion;
2. made a perverse finding of fact, ignoring as well as misconstruing evidence;
3. erred in law in the interpretation of the Immigration Act and theImmigration Regulations; and
4. tainted the proceedings with procedural irregularities which effectively denied the applicant a right to a fair determination.
[8] The allocation of points for a CAIPS assessment is a factual issue which falls into the category of a Visa Officer's discretionary powers. Therefore, unless the conclusion is clearly wrong or unreasonable, this Court will not intervene in the matter.
[9] The Visa Officer's CAIPS notes, decision and affidavit, show that she based her finding, that the applicant was allocated zero points for English, not only on the answers provided during the January 25th, 2002 interview, but also on reading and writing tests that were administered. The applicant's answers to questions in English about whether or not she required glasses to read or what the weather was like, clearly demonstrate that the applicant spoke English with difficulty and had limited comprehension. The remainder of the interview was conducted in Mandarin. The tests are included on the file and are comprised of questions that a basic English language assessment would be expected to include.
[10] The CAIPS notes, the tests and the material submitted by the applicant support the Visa Officer's determination that, while the applicant provided documents to demonstrate that she had received English language training, during the interview she experienced difficulty with basic listening comprehension as well as oral communications. Both the applicant and respondent are in agreement that during the interview the Visa Officer directly addressed the concern that the responses provided did not demonstrate a level of knowledge or proficiency in English consistent with the applicant's training and certification. The Visa Officer's CAIPS notes also show that the applicant's documentation relating to training and language proficiency in English were adequately considered in the decision.
[11] I agree with the respondent's submission that adaptability is, as determined in Shamsuddin v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.1308, para.11, an element which deserves consideration and find that the Visa Officer reasonably awarded four points for personal suitability. The CAIPS notes made of the interview indicate that the applicant has no experience travelling, working or studying outside of the PRC and that, when asked to explain a paragraph in English regarding job availability and preparations for immigration to Canada, included in a document provided by the applicant, she was unable to do so.
[12] The evidence on file shows that the Visa Officer considered all of the information the applicant provided, including the documentary proof of her training and work experience. Furthermore, the reasoning behind the conclusion that the applicant did not satisfy the selection criteria is clearly explained in the notes. It is therefore my opinion, that awarding zero points to the applicant for English language ability and four points for personal suitability, in this case, was reasonable.
[13] With regards to the question of procedural fairness, I refer to the Supreme Court decision in Baker v. Canada (Minister of Citizenship and Immigration) [1999], 2 S.C.R. 817 at page 819:
The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker. Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive.
[14] The duty of fairness owed in the circumstances of the case at bar is more than minimal. The applicant must have "a meaningful opportunity to present various types of evidence relevant to their case and have it fully and fairly considered". The uncontested elements in this matter demonstrate that this requirement was fulfilled. The applicant was given a fair opportunity to have her case heard and respond to the concerns raised. The application was duly considered and the Visa Officer's concerns were clearly stated both during the interview as well as in the CAIPS notes outlining the reasons for her decision.
[15] The applicant made the argument that with only 2 more points, she would of had a passing mark. But the reality of the interview process and the assessment done by the Visa Officer in using her discretion is 68 not 70 (the passing mark). Unless the applicant can indicate to me evidence of bad faith or that the principle of natural justice have not been followed or that the decision is clearly wrong or unreasonable, I cannot intervene. A discretion has been exercised and it has been well exercise.
[16] For these reasons, I find that the Visa Officer's determination that the applicant failed to satisfy the requirements of the Immigration Regulations, 1978 and her decision to refuse the application were reasonable.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review be dismissed.
"Simon Noël" Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-876-02
STYLE OF CAUSE: ZHENGLI LIANG (AKA ZHENG LI LIANG) v. MCI
DATE OF HEARING: November 6, 2003
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER: The Honourable Mr. Justice Simon Noël
DATED: November 12, 2003
APPEARANCES BY: Mr .Lloyd MacIlquham
For the Applicant
Ms. Sally Thomas
For the Respondent
SOLICITORS OF RECORD:
W. Lloyd MacIlquham
Barrister and Solicitor
5859 Yonge Street, Suite 103
Toronto, Ontario
M2M 3V6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent
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