Date: 20000626
Docket: IMM-4857-99
BETWEEN:
MOHAMMED KHALED ABAYDULLAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for judicial review of a decision of Lisa Wong (the "visa officer") dated August 9, 1999, wherein the visa officer refused the application of Mohammed Khaled Abaydullah (the "Applicant") for permanent residence in Canada.
[2] The Applicant is a citizen of Bangladesh. In April 1997, the Applicant filed the application for permanent residence to Canada under the assisted relative category. His sister Yeasmin Sarwar was named in his application as the assisting relative. The Applicant applied in the intended occupation of Packaging - Machine Mechanic. The Applicant was awarded the following units of assessment:
| Specific Vocational Preparation 11 |
[3] As the Applicant did not receive the required 65 units of assessment, the application was refused.
[4] In the present application for judicial review, the Applicant alleges that the visa officer made two errors. First, the Applicant argues that the visa officer erred in the number of units of assessment awarded for English. Second, the Applicant argues the visa officer erred in assessing the Applicant"s personal suitability.
[5] With respect to the assessment of the Applicant"s English language abilities, the Applicant argues that the visa officer breached the duty of fairness by assessing the Applicant"s English ability based on a reading of a particularly difficult passage.
[6] Schedule I of the Immigration Regulations, 1978, states the following with respect to an assessment of an Applicant"s language skills:
| (1) For the first official language, whether English or French, as stated by the person, credits shall be awarded according to the level of proficiency in each of the following abilities, namely, speaking, reading and writing, as follows:
| (a) for an ability to speak, read or write fluently three credits shall be awarded for each ability; |
| (b) for an ability to speak, read or write well but not fluently, two credits shall be awarded for each ability; and |
| (c) for an ability to speak, read or write with difficulty, no credits shall be awarded for that ability. |
(3) Units of assessment shall be awarded on the basis of the total number of credits awarded under subsections (1) and (2) as follows:
| (a) for zero credits or one credit, zero units; |
| (b) for two to five credits, two units; and |
| (c) for six or more credits, one unit for each credit. |
|
1) Pour la langue que la personne indique comme sa première langue officielle, le français ou l'anglais, selon son niveau de compétence à l'égard de chacune des capacités suivantes : l'expression orale, la lecture et l'écriture, des crédits sont attribués de la façon suivante:
| a) la capacité de parler, de lire ou d'écrire couramment, trois crédits sont attribués pour chaque capacité; |
| b) la capacité de parler, de lire ou d'écrire correctement mais pas couramment, deux crédits sont attribués pour chaque capacité; |
| c) la capacité de parler, de lire ou d'écrire difficilement, aucun crédit n'est attribué pour cette capacité |
(3) Des points d'appréciation sont attribués sur la base du nombre total de crédits obtenus selon les paragraphes (1) et (2), d'après le barème suivant:
| a) zéro ou un crédit, aucun point; |
| b) de deux à cinq crédits, deux points; |
| c) six crédits ou plus, un point par crédit. |
|
[7] In the present matter, the visa officer assessed the Applicant"s spoken English skills as "well" and gave the applicant two points for spoken ability. I do not find this assessment unreasonable nor can I find that her assessment of the Applicant was based on am overly difficult reading passage.
[8] In stating that the Applicant was denied procedural fairness, the Applicant cites Li v. Canada (Minister of Citizenship and Immigration)1. The Applicant submits that this decision by Justice Muldoon supports the proposition that a reading passage must be chosen to reflect the knowledge and background of the Applicant.
[9] I do not find that the Li decision stands for such a proposition. In addition, I am of the opinion that the passage which that Applicant was asked to read is distinguishable from the passage the Applicant was asked to read in the case at bar.
[10] In Li, the Applicant was asked to read four short paragraphs from a Canadian government publication on customs regulations. The Applicant in the Li decision was then asked to explain the meaning of these paragraphs. Language was ultimately not discussed in Justice Muldoon"s reasons for order but Justice Muldoon nevertheless indicated in parenthesis "one wonders whether this was a fair test - Canadian government publications can be daunting, even to those born and raised in the embrace of the English language"2.
[11] However, in the present matter, the Applicant was asked to read a passage entitled "Leonardo"s show a big success in Victoria". The passage was then followed by five multiple choice questions and four short answer questions. Having reviewed the passage and the questions, I cannot conclude that the Applicant was denied procedural fairness as a result of the visa officer"s application of this reading comprehension test.
[12] The Applicant presents two arguments in stating that the visa officer erred in her assessment of the Applicant"s personal suitability. First, the Applicant argues that the visa officer, having already awarded the Applicant two points for English, could not "double count" by also considering his English skills under the personal suitability factor. Second, it is submitted that the visa officer erred in penalizing the Applicant for relying on his sister and family for settlement assistance.
[13] Schedule I of the Immigration Regulations indicates that Personal Suitability is to be assessed in accordance with the following:
| 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.
|
Des points d'appréciation sont attribués au requérant au cours d'une entrevue qui permettra de déterminer si lui et les personnes à sa charge sont en mesure de réussir leur installation au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et autres qualités semblables.
|
[14] The arguments raised by the Applicant with respect to personal suitability arise from the CAIPS notes which indicate:
| He has not taken any initiative nor shown resourcefulness to conduct concrete research for relevant emply and settlement info. Has no ideas of emply req"mts, work cond or job market for intended occup field. Relying heavily on extrinsic factors such as relative for assistance in settlement and emply. Has no overseas travel and is unfamiliar with working in English speaking environment and with foreigners; these factors will negatively influence pi"s adaptability, has not been motivated to take Eng trg courses prior to intv and in preparation for immig to Cda. Has not given any thought to contingency plan if unable to work in intended occup, and stated that str will help. Ill prepared for intv and for immig to Cda in general. 3 units awarded for pers suit. |
[15] Although a visa officer may not engage in double counting, a visa officer can nonetheless examine the same factors used in assessing personal suitability if these factors are examined from a different perspective3. Based on this, as well as a careful review of the material submitted, including the CAIPS notes, I am of the opinion that the visa officer did not err in assessing the Applicant"s personal suitability.
[16] Accordingly, for the reasons outlined above, the application for judicial review is dismissed. Counsel for the parties have seven days from their receipt of these reasons to submit a question for certification.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
June 26, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MOHAMMED KHALED ABAYDULLAH |
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
| DATE OF HEARING: TUESDAY, APRIL 25, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: MONDAY, JUNE 26, 2000
| APPEARANCES BY: Ms. Ira Nishisato |
| SOLICITORS OF RECORD: Borden Ladner Gervais LLP |
Barristers & Solicitors
Scotia Plaza
40 King Street West
Toronto, Ontario
M5H 3Y4
Morris Rosenberg
The Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000626
Docket: IMM-4857-99
BETWEEN:
| MOHAMMED KHALED ABAYDULLAH |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
__________________
1 [1999] F.C.J. No. 1269, IMM-4710-98 (August 11, 1999) (T.D.).
2Ibid. at para. 3.
3See, for example, Bahram v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 682, IMM-3139-98 (April 30, 1999) (T.D.).
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