Date: 20000317
Docket: IMM-1142-99
Between :
QI YI
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of the January 22, 1999 decision of Ivy Lerner-Frank, a Vice-Consul at the Canadian Consulate General in Hong Kong, determining that the applicant did not meet the requirements for immigration to Canada in the Independent category.
[2] The applicant indicated that his intended occupation was "Dental Hygienist"(NOC: 3222.1). He was awarded the following units of assessment:
| Education/Training Factor 15 |
The visa officer concluded that the applicant had obtained insufficient units of assessment to qualify for immigration to Canada in his intended occupation.
[3] The standard of review for discretionary decisions of visa officers with respect to immigrant applications is fairly high. In Chiu Chee To v. Minister of Citizenship and Immigration (May 22, 1996), A-172-93, the Federal Court of Appeal adopted the standard set out by the Supreme Court of Canada at pages 7 and 8 of Maple Lodge Farms [1982] 2 S.C.R. 2">Limited v. Government of Canada et al., [1982] 2 S.C.R. 2:
| . . . 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. . . . |
[4] The first issue raised by the applicant involves the visa officer"s evaluation of his language abilities. The visa officer states in her affidavit that she is one of the bilingual officers at the Immigration Section in Hong Kong and that she is often called upon to assess the language proficiency of applicants who have cited proficiency in French. She further claims that she is fully capable of determining the applicant"s level of French proficiency on his speaking, reading and writing. The visa officer admits that because she was unfamiliar with technical terms for dentistry in French, she used a dictionary for those terms during the interview.
[5] The applicant noted on his application form for permanent residence that he spoke, read and wrote French "fluently"and that he spoke, read and wrote English "well". During the interview, the visa officer allowed the applicant to demonstrate his capacity to speak, read and write in French and English, as contemplated by Factor 8 of Schedule 1 of the Immigration Regulations, 1978. The visa officer asked the applicant questions in both French and English. She administered a French and an English reading test, wherein she asked questions about texts that the applicant had been given to read. The applicant was allowed to refer to the texts while giving his answers. The visa officer also tested his writing ability by asking him to write a passage describing the differences between his parents"generation and his children"s generation in French, and a passage describing an incident from his childhood in English.
[6] In her affidavit, the visa officer states that the applicant was unable to understand her questions in French and that he needed frequent clarification, that he was unable to comprehend the reading comprehension text, and that he did not respond to the question posed in his writing test. Similarly, the visa officer notes that the applicant was unable to reply in English when asked to and required clarification in French of her spoken questions. Likewise, she assessed the quality of the answers to the English reading and writing tests as "with difficulty".
[7] In my opinion, the visa officer"s decision to award the applicant two points for French and zero points for English has a strong evidentiary basis and there is no evidence on the record that it was based on irrelevant considerations or made in an arbitrary or capricious manner.
[8] The applicant also argues that the visa officer double counted his language ability in her assessment of personal suitability. The relevant portion of Schedule I of the Immigration Regulations, 1978, reads as follows:
| 9. Personal Suitability Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person"s adaptability, motivation, initiative, resourcefulness and other similar qualities. |
[9] The issue of double counting was addressed in Bahram v. The Minister of Citizenship and Immigration (April 30, 1999), IMM-3139-98, where I wrote:
| It has clearly been established in the jurisprudence that a visa officer cannot engage in double counting when assessing an applicant on the basis of the criteria outlined pursuant to subsection 8(1) of the Immigration Regulations, 1978. That is, a visa officer cannot consider an applicant"s education, language ability, or the like, as criteria in assessing that applicant"s personal suitability (see, for instance, Zeng v. Canada (M.E.I.) (1991), 12 Imm.L.R. (2d) 167). |
| Notwithstanding this general principle, it has further been established by the case-law that it is acceptable to consider one of the other enumerated factors in assessing personal suitability, so long as it is appraised from a different perspective (see, i.e., Ajmal v. M.C.I. (April 17, 1998), IMM-2399-97, Stefan v. Canada (M.C.I.) (1995), 35 Imm.L.R. (2d) 21, Parmar v. M.C.I. (November 12, 1997), IMM-3177-96 and Vasilev v. Canada (M.C.I.) (1996), 110 F.T.R. 62). |
[10] Here, the visa officer focussed on the applicant"s failure to improve his language skills as an element relating to his initiative and motivation. Her conclusion appears in the CAIPS notes:
| PI HAS TAKEN NO INITIATIVE TO IMPROVE LEVEL OF ENGLISH OR FRENCH BEYOND CURRENT LEVEL. PI STUDIED FRENCH AS PART OF HIS WORK DUTIES. DOES NOT APPEAR MOTIVATED TO HAVE IMPROVED THESE LANGUAGE SKILLS ON HIS OWN SUBSEQUENTLY. PI DOES NOT APPEAR TO BE MOTIVATED. THIS IS REFLECTED BY HIS SELF-DESCRIBED LACK OF ADVANCEMENT IN HIS POSITION. |
[11] In my opinion, the visa officer assessed the applicant"s language skills under Factor 9 solely in the context of the way in which he could become successfully established in Canada. She did not focus on the skill level already recorded in other parts of her assessment. Therefore, I do not think that the visa officer committed a reviewable error.
[12] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
March 17, 2000
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