Date: 20010704
Docket: IMM-4662-00
Neutral Citation: 2001 FCT 750
BETWEEN:
JIAN MING YANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Teitelbaum J.
[1] The applicant seeks judicial review of the decision, dated July 31, 2000, made by visa officer Lily Chau, designated immigration officer, of the Canadian Consulate General in Hong Kong, which refused the applicant's application for permanent residence in Canada.
Background
[2] The applicant, Jian Ming Yang, is a 41 year old Chinese citizen. In early 1999, he applied for permanent residence under the Independent category as a telecommunications engineer.
[3] The applicant was informed by letter, date stamped April 13, 1999, that he could be eligible for an interview waiver if he obtained an independent assessment of his English language ability. He could do this by writing the International English Language Training System's ("IELTS") General Training English Test. The applicant chose not to write this test, however, and an interview was subsequently scheduled for July 31, 2000.
[4] According to the applicant's affidavit, sworn October 17, 2000, this is how the interview transpired, in part:
4. At the beginning of the interview the visa officer speaking to me in Chinese asked me how my English was and I answered that it should be "OK". The visa officer who seemed unnecessarily impatient then told me if I didn't understand her questions in English to tell her immediately as she didn't have time for us "to stare at each other because she had a lot of people to interview". Her attitude and her comments made me very nervous and created in my mind a negative atmosphere to conduct the interview.
5. The first question she asked me was whether I had been married twice and I answered her that I had only been married once which is true. Her next question was why although the visa office requested it I had not taken the IELTS English examination. Because of her impatience I was nervous and slow to answer. I was also confused about her question and hesitated to answer it because it is my understanding that taking the IELTS examination was completely at my option and had not actually been requested by the visa office.
6. Once I hesitated in answering this question the visa officer switched back to speaking to me in Chinese and refused to allow me to answer questions in English although I requested that I be allowed to do so several times.
(Applicant's Record, p. 4)
[5] Visa officer Chau also provided an affidavit, sworn November 15, 2000 (Respondent's Record, pp. 1 - 5). In her affidavit, Ms. Chau states that she asked the applicant why he declined to take the IELTS test as a way to start the interview and to advise him that she would be assessing his language skills.
[6] According to the applicant's self-assessment of his English language skills, he graded himself as "well" for speaking and writing, and "fluently" for reading. After administering reading and writing tests, the visa officer assessed the applicant as reading and writing English "with difficulty", and zero units were awarded for those skills.
[7] With respect to the applicant's ability to speak English, the visa officer states in her affidavit:
17. In assessing the Applicant's spoken English language ability, as I indicated earlier, I commenced the interview in the English language. I asked the Applicant questions in English. The Applicant did not respond to a number of my questions at the interview. Given the Applicant's non-responsiveness to my questions, I concluded that he could not understand my questions in English, I therefore switched to Chinese to conduct the remainder of the interview. I note that there may have been an error made in the CAIPS notes as I believe the Applicant spoke Mandarin rather than Cantonese as indicated in CAIPS. I assessed the Applicant's spoken English language ability as "with difficulty" and I awarded zero units for the Applicant's spoken English ability.
(Respondent's Record, p. 3)
[8] With respect to the applicant's personal suitability, for which he received four units of assessment, the visa officer states in her affidavit:
20. In assessing the Applicant's personal suitability, I considered that despite his decision to immigrate to Canada in 1998, the Applicant did not demonstrate motivation in improving his English language ability beyond a low level of proficiency. I also considered the Applicant's initiative and resourcefulness in the Applicant's failure to contact the CCPE although he was provided with a telephone number, fax number and an e-mail address of the CCPE. In my opinion, it would be reasonable to expect the Applicant to contact the Canadian Council of Professional Engineers, (the "CCPE"), for any information relating to licensing examination for engineers in Canada, given his intended occupation in Canada was engineering. I considered the Applicant's failure to research the engineering licensing requirements in Canada, which is an essential element to his successful integration into the Canadian labour force, demonstrated a lack of initiative and resourcefulness.
21. I also considered that the Applicant had no experience studying or travelling outside the People's Republic of China in assessing the Applicant's adaptability. I was aware of the Applicant's experience in co-operating with western companies, such as Siemens and Italet Spa, at the time of the interview. However, I accorded this little weight in assessing the Applicant's personal suitability since it is common for companies in the PRC to have exposure to western companies but the Applicant did not provide any further details as to how his experience demonstrated his adaptability. I noted that the Applicant had not travelled.
(Respondent's Record, pp. 3 - 4)
[9] For his part, the applicant states that the CCPE was a national organization that informally assesses foreign engineers, and that licensing is a provincial matter. (Applicant's Record, p.5)
[10] The applicant received a total of 68 units of assessment, two short of the required 70 units, and his application was refused.
Issues
[11] The applicant takes issues with the assessment of his English speaking ability and personal suitability.
Applicant's Position
[12] The applicant submits that the visa officer did not provide him with a reasonable opportunity to demonstrate his English speaking ability. He contends that he was asked only two questions in English, and that the visa officer's conduct contributed to his hesitance to answer the second question, which was about why he had not taken the IELTS test.
[13] The applicant also challenges the visa officer's claim that she asked him a "number of questions" in English that he was unable to answer as she does not provide any details as to what these questions were.
[14] With respect to personal suitability, the applicant contends that the visa officer took into account irrelevant considerations. The applicant argues that whether he travelled or studied outside of China is irrelevant to the issue of the likelihood that he could become successfully established in Canada in an economic sense.
[15] The applicant further contends that he was unfairly penalized under the personal suitability assessment for failing to contact the CCPE. Again, he submits that this is irrelevant as the CCPE is not a licensing organization.
[16] Finally, the applicant submits that the visa officer's personal suitability assessment with respect to adaptability must be based on likely outcomes, not those which are merely possible. He takes issue with the visa officer's CAIPS notes, where she used the word "might" in this regard.
Respondent's Position
[17] The respondent maintains that the visa officer tested the applicant's language abilities in an objective manner. The respondent submits that in the absence of bad faith being demonstrated, the assessment does not contain any reviewable error. The respondent also submits that the Court should prefer the visa officer's version of the interview, based on her affidavit and CAIPS notes.
[18] The respondent also maintains that the visa officer's assessment of the applicant's personal suitability was in accordance with the Immigration Regulations, which outline in item 9 of Schedule 1, qualities to consider such as adaptability, motivation, initiative, and resourcefulness. The respondent submits that the visa officer's decision to award four units of assessment was discretionary and does not contain any reviewable error.
Analysis
[19] The visa officer's decision was administrative and discretionary in nature. The standard of review for this type of decision is the following, as stated by McIntyre J. in the [1982] 2 S.C.R. 1">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 1 at pp. 7 - 8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. 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 upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[20] With regard to the visa officer's assessment of the applicant's English speaking ability, her CAIPS notes support her assessment (Certified Tribunal Record, pp. 2 - 4). Her notes indicate that the applicant spoke English with great difficulty as his listening comprehension was very weak. It is not for the Court to reassess the applicant's ability to speak English; the visa officer is ideally situated for this type of assessment. No bad faith or error has been demonstrated, and in the absence of such, the visa officer's decision must be accorded deference. See: Ali v. Canada (M.C.I.) IMM-4873-97, July 22, 1998; Ashraf v. Canada (M.C.I.) (1998), 158 F.T.R. 129 (F.C.T.D.); Mehranbani v. Canada (M.C.I.) IMM-4410-98, March 2, 2000.
[21] The second issue involves personal suitability. In my opinion, it was not unreasonable for the visa officer to conclude, as she did, that the applicant's failure to upgrade his English language skills demonstrated a lack of motivation; nor was her determination that his failure to contact the CCPE indicated a lack of initiative. While it appears that the CCPE is not a licensing organization, according to the applicant's own affidavit, the CCPE informally assesses the qualifications of foreign engineers. Whether the applicant had ever travelled or studied outside of his country are not, in my opinion, irrelevant matters when considering one's adaptability. It was entirely reasonable for the visa officer to conclude as she did with regard to the applicant's personal suitability.
[22] I am satisfied the applicant has not succeeded in showing any bad faith or errors made by the visa officer. On the basis of the record, the visa officer's conclusions were reasonably open to her. Accordingly, this judicial review application is dismissed.
[23] No question for certification was submitted by the parties.
(Sgd.) "Max M. Teitelbaum" Judge
Vancouver, British Columbia
July 4, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4662-00
STYLE OF CAUSE: Jian Ming Yang v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 3, 2001
REASONS FOR ORDER OF THE COURT BY: Teitelbaum J.
DATED: July 4, 2001
APPEARANCES:
Dennis Tanack FOR APPLICANT
Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Denis Tanack FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia
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