Date: 20010910
Docket: IMM-626-00
Neutral citation: 2001 FCT 945
BETWEEN:
SURINDER KUMAR VERMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER
ROTHSTEIN J.A.
[1] This is a judicial review of a decision of a Visa Officer denying the applicant's application for permanent residence. The applicant received 63 units of assessment including 2 units for English language ability and 3 units for personal suitability. The Visa Officer assessed the applicant's ability to read and write English "with difficulty" and he, therefore, awarded only 2 units for the applicant's spoken English which he assessed as "well".
[2] The applicant says the Visa Officer administered an unfair English reading and writing test because it was not based on the applicant's experience and did not include terminology used in everyday life. The paragraph at issue was taken from the Canada Immigration Self-assessment Guide for a Prospective Immigrant, page 22:
If you or any of your dependants have a criminal conviction, your application will probably be refused. Generally, persons with a criminal conviction are not admitted into Canada. Under exceptional circumstances, however, such persons may request special consideration. Occasionally such persons are admitted on the grounds that they have been rehabilitated. You must wait five years after the end of your sentence to apply for approval of rehabilitation.
[3] While a few words may be characterized as somewhat difficult, the general idea conveyed by the paragraph was not complicated. A person who understands English well should have been able to grasp the general meaning of the paragraph. The topic of criminal conviction is covered in the applicant's permanent residence application which, on the application form, the applicant said he understood. Yet the Visa Officer noted that the applicant was unable to relate anything meaningful about what he had read.
[4] The written test was based on the same material as the reading test. The fact that the applicant had read the same material he was asked to write out, if anything, should have provided the applicant with an advantage in his written test.
[5] On the record before me I have not been persuaded that the English language reading and writing test was unfair. An award of only 2 units for English language speaking ability was not unreasonable.
[6] This effectively disposes of the application. The applicant submitted that the Visa Officer should have awarded him 6 or 7 units rather than the 3 he did receive for personal suitability. Even if the Visa Officer had erred in his personal suitability assessment, an award of 7 units would have given the applicant a total of 67 units, still 3 short of the minimum required. The applicant does not assert and there is nothing in the record that suggests that the applicant would have been awarded the maximum of 10 units which would have been necessary for him to reach 70 units in total.
[7] Nothing in the record before me indicates that the applicant applied for a positive exercise of discretion by the Visa Officer under subsection 11(3) of the Immigration Regulations; that is, that he had good reasons why a unit assessment would not reflect the chances of his becoming successfully established in Canada. The discretionary power under subsection 11(3) is an extraordinary one and there is no suggestion of any error on the part of the Visa Officer for not exercising that discretion in this case. See Chen v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 350, at 363 (T.D.), reversed [1994] 1 F.C. 639 (C.A.), affirmed [1995] 1 S.C.R. 725, and Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316, at paragraph 5.
[8] The judicial review will be dismissed.
"Marshall Rothstein"
Judge
Toronto, Ontario
September 10, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-626-00
STYLE OF CAUSE: SURINDER KUMAR VERMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, AUGUST 20, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN J.A.
DATED: MONDAY, SEPTEMBER 10, 2001
APPEARANCES: Mr. Marshall Drukarsh
For the Applicant
Mr. Stephen H. Gold
For the Respondent
SOLICITORS OF RECORD: GREEN & SPIEGEL
Barristers & Solicitors
121 King Street West
Suite 2200, P.O. Box 114
Toronto, Ontario M5H 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010910
Docket: IMM-626-00
BETWEEN:
SURINDER KUMAR VERMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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