Date: 20030715
Docket: IMM-3601-01
Citation: 2003 FC 879
OTTAWA, ONTARIO, this 15th day of July 2003
Present: The Honourable Justice Dolores M. Hansen
BETWEEN:
XIN CHEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a visa officer's decision refusing the applicant's application for permanent residence in Canada.
[2] The applicant is a 39-year-old citizen of China. He submitted his application for permanent residence in the Independent category under the occupation of Financial Manager.
[3] The applicant obtained a diploma in mathematics from the J'ian Teacher's College in 1982. Between 1982 and 1984, he taught mathematics at the Jinggangshan Middle School. Following two years of study, he obtained a certificate in mathematics from the Jiangxi Institute of Education in 1986. At this point, the applicant returned to his employment at the Jinggangshan Middle School.
[4] In September 1988, the applicant enrolled in the Beijing University of Science and Technology where he majored in Business Management. In 1991, he obtained a master's degree in Industrial Management Engineering. While studying for his master's degree, the applicant also completed eight courses offered by McMaster University in conjunction with the Beijing University of Science and Technology.
[5] After he completed his studies, the applicant was employed by Zhanjiang Canon Repographic Material Inc. where he was ultimately promoted to the position of Financial and Administrative Manager. In 1996, the applicant resigned from this position and commenced employment as Financial Manager for Hilti China Ltd. In February 2001, the applicant was hired by Dupont China Holding Company as a Financial Manager.
[6] The applicant and his wife attended at the Canadian Consulate General in Hong Kong for an interview with the visa officer. The visa officer states that although the applicant was able to communicate "well" in English and the interview was conducted in English, the applicant did not appear to be "fluent" in English as stated in his application. For this reason, the visa officer tested the applicant's English writing and reading comprehension abilities.
[7] For the writing assessment, the applicant was asked to "describe his most recent day at work". He was given five minutes to respond. He gave the following answer:
My most recent day at work was June 12, 2001. I went to my office at 8:45 am and checked e-mails before 9:30 am. After that, I checked and signed payment documents including vouchers, requisition forms and checks till 11:30 am.
The visa officer did not note any errors in the response.
[8] The visa officer tested the applicant's reading comprehension ability by giving him an article to read on the Toronto Transit Commission ("TTC"). The applicant was required to answer four questions concerning the article. The applicant completed the exercise within the seven minutes provided. The visa officer marked one of the answers as incorrect.
[9] Subsequent to the interview, the visa officer recorded the following in her CAIPS notes:
LANGUAGE: The interview was conducted in English, and it was evident that the PI was having difficulty communicating, so I asked him to undertake an English exercise. His application had indicated that he was fluent in English. His writing he did "well" and his reading he did "well". His speaking I would assess as "well" as we were able to communicate during the interview. Overall, I would assess the PI as "well" in English and have changed his points from fluent to well 6 points ...
[10] The visa officer denied the applicant's application on the basis that he only earned 68 of the required 70 units of assessment for the granting of a permanent resident visa.
[11] The issues raised by the applicant on this judicial review relate only to the visa officer's assessment of his language proficiency. The applicant submits he would have obtained sufficient units of assessment to qualify for immigration to Canada but for the visa officer's errors in relation to the assessment of his language abilities. In light of his performance on the tests conducted at the interview, the applicant maintains the visa officer's decision was patently unreasonable.
[12] With respect to his oral fluency, the applicant takes the position that the visa officer's observations are contradictory and "make no sense". On the one hand, the visa officer commented that the applicant was "having difficulty communicating". On the other hand, the visa officer noted that they "were able to communicate during the interview". The applicant argues that having regard to the criteria in Schedule I of the Immigration Regulations, 1978, SOR/78-172, if the visa officer found that he spoke "with difficulty" he should have been awarded no points instead of the two points he was in fact awarded. In the applicant's view, this clearly demonstrates that the visa officer's determination was perverse. As well, the applicant argues that the CAIPS notes show he was able to engage in a discussion concerning complex technical aspects of his work, as well as topics of a general nature. The applicant maintains that this demonstrates his ability to speak and understand "oral communication with approximately the same ease as that of an articulate native speaker" which is the description of a fluent speaker in the Language Assessment Guide ("LAG") appended to Chapter OP 5 of the Immigration Manual, Overseas Processing.
[13] Regarding the writing exercise, the applicant submits there is no rational basis for the visa officer's assessment of "well" instead of "fluent". According to the record, the visa officer found no errors in the applicant's response. Nor did the visa officer indicate in her affidavit that she had found any errors. Further, during re-examination on her affidavit the visa officer stated that she grades the written test on the basis of grammatical and spelling errors, and whether the answer relates to the question. Given the absence of errors in his response and the visa officer's own standard for evaluating the written test, the applicant argues that there was no valid basis for the assessment of "well" instead of "fluent".
[14] Finally, with respect to the reading comprehension test, the applicant submits that the question to which he allegedly gave an incorrect answer was ambiguous and incomplete. In the article provided to the applicant about the TTC, under the heading "Tickets, Tokens", it states "it's cheaper and more convenient to buy tickets and tokens than to pay cash for every trip". Later in the article under the heading "Saving Money", it states "if you travel a lot, it's even cheaper to buy a pass". In response to the question "is it cheaper to buy tokens and tickets or a pass", the applicant answered "it's cheaper to buy tokens and tickets than to buy a pass". The officer marked this answer as incorrect. The applicant argues that since the question specifies neither frequency of travel nor a time frame the question is incomplete and ambiguous. He maintains that having regard to the content of the article and the question posed his answer was correct.
[15] In general, the respondent submits the visa officer exercised her discretion in good faith, in accordance with the principles of natural justice, and without reliance on irrelevant or extraneous considerations. The respondent takes the position that the visa officer tested the applicant's language abilities in an objective manner in accordance with the LAG. In these circumstances, the Court should not interfere with the visa officer's exercise of her discretion. The respondent relies on the following statement of Dubé J. in Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1080 at paragraph 5:
The visa officer is in a much better position than the Court to assess the quality of the language of an applicant and, in the absence of any bad faith on the part of the visa officer, the Court must treat her decision with all due deference.
[16] In response to the applicant's specific assertions, the respondent argues that the fact the interview was conducted entirely in English does not necessarily equate to an ability to speak "with approximately the same ease as that of an articulate native speaker". Further, there is no reason to doubt the visa officer's sworn statement that the applicant spoke with difficulty.
[17] The respondent maintains that the article used to test the applicant's reading comprehension was written in plain simple English. The respondent submits that the question at issue was neither ambiguous nor incomplete but simply required a more fulsome answer that would have shown a higher level of comprehension.
[18] With respect to the written test, the respondent characterizes the applicant's response as a basic report relevant to the applicant's work situation. In the respondent's view, this corresponds to the LAG description of an applicant who can write "well", however, it does not show that the applicant can "write proficiently in any context" as provided in the LAG description of "fluent". As well, the respondent notes that the response was incomplete and brief. The respondent argues that it was reasonably open to the visa officer to find that the applicant wrote "well".
[19] The applicant's argument that the visa officer's finding regarding his oral fluency "makes no sense" is rejected. In my view, the applicant has taken the visa officer's comment that he "was having difficulty communicating" out of context. It is evident from the CAIPS notes that this is only one of the factors the visa officer considered in her assessment of the applicant's oral fluency. She also took into account the fact that he was able to communicate in English for the purpose of the interview. Taken in context, the visa officer's remarks are not contradictory.
[20] As well, I do not accept the applicant's argument that since he was able to engage in a discussion concerning complex technical aspects of his work and topics of a general nature his spoken English should have been assessed as "fluent". Although the LAG is not binding on visa officers, it is intended to provide guidance for the consistent evaluation of applicants. The LAG describes an applicant who speaks "fluently" as "speaks and understands oral communication with approximately the same ease as that of an articulate native speaker". One who speaks "well" is "able to comprehend and to communicate effectively on a range of general topics". While the CAIPS notes support the applicant's assertions concerning the matters discussed during the course of the interview, this alone does not necessarily equate to an ability to speak with the ease of "an articulate native speaker". I agree with Dubé J. that, particularly in relation to oral fluency, a visa officer is in a much better position than the Court to assess the linguistic skills of an applicant. In the present case, the applicant has not advanced any reason to disbelieve the visa officer's sworn statement that the level of the applicant's spoken English was not at the level of fluent as stated in his application. Having regard to the visa officer's observations and the descriptions of the levels of fluency found in the LAG, I am unable to conclude that the visa officer erred in her assessment of the applicant's spoken English.
[21] With respect to the reading comprehension assessment, I am not persuaded that the question at issue was either incomplete or ambiguous. The article the applicant was asked to read provides general information about the TTC system, hours of operation, payment options, and transfers. In the article, the only information relevant to the question is that for individuals who travel a lot purchasing a pass is a less expensive option than purchasing tokens or tickets. Given the content of the article, the question fairly tests whether the reader understands that frequency of travel will determine which of the two options is least expensive. In this context, the question is neither incomplete nor ambiguous. It simply requires an answer that reflects an understanding of the relationship between cost and frequency of travel. Having regard to the information provided on which the applicant's comprehension was being tested, his answer was incomplete. In my view, the visa officer committed no reviewable error in this part of her assessment.
[22] Finally, the LAG describes an applicant who writes "fluently" as being able to write "proficiently in any context". The description of "well" is an applicant who is "able to write a basic report or summary relevant to their education, work, or social situation". In the CAIPS notes and in the visa officer's affidavit, no rationale is offered by the visa officer for the assessment of "well". I accept that the applicant's response on the writing assessment demonstrates an ability to write at least at the "well" level. However, the purpose of a language assessment is to ascertain whether an applicant's self-assessment as stated in the application actually reflects his or her language proficiency. In the present case, the applicant stated in his application that he is able to write fluently. Given the nature of the question put to the applicant, I am not persuaded that it provided him with an opportunity to show that he is able "to write proficiently in any context". However, having said this, even if the applicant had been awarded three units of assessment for his writing proficiency, he still would not have earned sufficient units of assessment for the granting of a permanent resident visa.
[23] For these reasons, the application for judicial review is dismissed. Neither party submitted a question for certification.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. The application for judicial review is dismissed.
2. No question will be certified.
"Dolores M. Hansen"
J.F.C.C.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3601-01
STYLE OF CAUSE: Xin Chen v. Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 25, 2002
REASONS FOR ORDER : The Honourable Justice Dolores M. Hansen
DATED: July 15, 2003
APPEARANCES:
Mr. Rudolf Kischer FOR APPLICANT
Ms. Pauline Anthoine FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Rudolf Kischer
Vancouver , British Columbia FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
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