Date: 20000831
Docket: IMM-1429-99
BETWEEN:
VALENTIN-SORIN TEODORVICI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] Valentin-Sorin Teodorvici (the Applicant), a citizen of Romania, challenges in this judicial review application, the refusal by Terry Brown (the visa officer) on February 22, 1999, of the Applicant's application to be landed in Canada with an intended occupation as an economist. He needed 70 points but was only awarded 64 points.
[2] The Applicant's challenge relates to the language assessment he received (or lack of it) and the points awarded for the experience factor.
[3] The thrust of the Respondent's defence was that there was no purpose in granting this judicial review application because, if the assessment was corrected as claimed by the Applicant, he would still not reach the required level of 70 points.
[4] On a more general note, counsel for the Respondent said there was nothing in the Appellant's affidavit in support of his judicial review proceeding complaining about his assessments. I do not accept the Respondent's limitation to the scope of the Applicant's judicial review proceedings. The evidence which the Applicant relied on flows from the record before the Court, including cross-examination on the visa officer's affidavits and the certified record. This approach is entirely proper.
1. THE LANGUAGE ASSESSMENT
[5] The Applicant made application for permanent residence to Canada on April 7, 1997 by filling out application form IMM-0008 in its English version. Question 11 of that form asks how well an applicant speaks, reads and writes English. The Applicant answered well for each of the three categories. The form also asks, in a different column, how well an applicant speaks, writes and reads French. The Applicant answered well in each of the three categories.
[6] The Applicant was interviewed in Bucharest on February 1st, 1999. In this proceeding the visa officer was cross-examined on his affidavit. As well, the certified record was also produced and available to the Court.
[7] In his cross-examination, the visa officer confirmed the interview was conducted in English and said he tested the Applicant's English language skills. The certified record contains an extract of the Applicant's writing test as well as the English text from which he was asked to read from.
[8] The certified record contained no such material evidencing the testing of the Applicant's French language skills. On cross-examination, the visa officer was asked whether the Applicant was given a writing or reading test for French and he answered "no, I don't believe I did give him one".
[9] There remains the possibility the visa officer might have tested the Applicant's speaking skills. He was asked on cross-examination whether he spoke to the Applicant in French at any time and he responded that he did not have a recollection. At a later point he said usually he took the opportunity to speak to applicants in French and in terms of his interview with the Applicant he added that part of the interview might have been an assessment of his spoken French, albeit a brief assessment, but added he made no note of it. He was asked again whether he recalled speaking to the Applicant at all in French and he answered that he could not remember whether he did or not.
[10] In my view, on the balance of probabilities, the visa officer did not test the Applicant's French language speaking skills but, if he did, I have no hesitation to conclude such speech testing would have been peripheral at best and would not have been an adequate test of that skill.
Analysis and Conclusions on this Point
[11] Section 8 of the Regulations provides that a visa officer shall assess an Applicant on the basis of each of the factors listed in the Schedule to the Regulations.
[12] Schedule 1 to the Regulations contains factor 8 related to skills in the English or French languages. The maximum number of points awarded depends upon whether French or English is the Applicant's first official language.
[13] Factor 8 provides "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". Fluency in these skills obtains 3 credits for each skill for a maximum total of 9; possessing those skills well attracts 2 credits for each skill for a total of 6 and exercising those skills with difficulties attracts no credits.
[14] Factor 8 then provides "For the second official language, whether English or French, as stated by the person" credits are awarded for the same skills but at a different level of credits. Fluency attracts 2 credits for each ability for a total of 6; exercising those skills in the second official language well but not fluently attracts 1 credit for each ability for a maximum of 3 and exercising those skills with difficulty attracts no credits.
[15] The visa officer awarded the Applicant 4 points for his English skills; the Applicant obtained 2 points for his French language skills. The visa officer's CAIPS notes under language assessment says this:
| Speaks and reads almost well. Writing below standard. |
[16] The visa officer was asked on cross-examination what the 4 points for English represented and his answer was this:
| Yes, if you look at the CAIPS notes, I say that he speaks and reads almost well, which is to say that I found he was somewhat below the standard for well, but I gave him the points anyway. But that the writing was below standard and I felt I would not give him the points for writing well. |
[17] He was then asked what the 2 points for French represented and his answer was:
| I made no note specifically relating to French and I see no French written test, so I don't think that there is anything I can inform you about that. |
| I, at some point, decided that as the second language that he was well in two categories and I don't recall at this point which of those two (2) categories were. |
[18] Counsel for the Respondent said that, at most, the Applicant could only obtain one more unit if he was properly assessed in French taking his self-assessment at face value as well in all skills. The Respondent's reasoning, however, is based on the assumption that French is the Applicant's second official language. Counsel for the Respondent said there was nothing in his affidavit stating French was the official language of his first choice.
[19] Counsel for the Applicant argues one cannot assume French was not the Applicant's first official language. He then argued the visa officer is not bound by the Applicant's self-assessment of his language skills and potentially the Applicant could be assessed as fluent in French in all skills for a possible 9 points as his first official language to which would be added 2 points for English as his second official language resulting in an assessment of 11 units rather than 6 thereby increasing his units to 69, everything else being equal.
[20] There is no question the visa officer committed a serious error in not assessing, as he was required to do by law, any of the Applicant's French language skills.
[21] Moreover, the visa officer committed another error which taints the manner he conducted his overall assessment of the Applicant. As I see it, without any basis whatsoever, he awarded arbitrarily the Applicant 2 points for his French language skills which were not assessed by him. Again, this is contrary to law.
[22] I agree with counsel for the Applicant that, in the circumstances of this case, it was not proper for the visa officer to assume that French was the Applicant's second official language. While the prescribed immigration application form for permanent residence to Canada does not contain a question asking specifically which of the two official languages the Applicant is best at, the Applicant, in completing his form, in answer to question 11, stated that his skills in both official languages were equal. In my view, in the circumstances, the visa officer had a duty to specifically ask the Applicant which official language was his first choice. This duty arises because the Applicant's choice has an impact on the number of units to be awarded. Opting for an official language of first choice possibly leads to a maximum of 9 units while choosing the official language of second choice accrues only a possible maximum of 6 units.
2. THE EXPERIENCE ASSESSMENT
[23] In filling out his application for permanent residence, the Applicant indicated that he had attended the Faculty of Economic Sciences in Craiova from September 1983 to June 1988 and obtained a degree.
[24] In terms of his work history, the Applicant indicated between October 1988 and June 1991, he worked as an economist with the Institute of Research and Engineering Technological. Thereafter, from July 1991 to the date of his application for permanent residence, he worked as a financial inspector for the Town of Craiova.
[25] The Applicant was assessed as an economist (NOC: 4162.0). He was also assessed in other occupations (tax inspector, NOC: 1228.4). He received for the training factor 17 units. He was awarded 2 units of experience.
[26] On this point, the visa officer's CAIPS notes read under the heading Training & Employment:
| PA (Principal Applicant): after degree, three years economist at Institute of research. Production cost, sales department. Seems mainly to have been filling out forms to calculate costs of production. Maybe one year of this would count as an economist. Since 91Comisar or inspector for Financial "Guard" of Craiova. Goes to company financial department to inspect payment of taxes etc. Each company has obligations -- looks into the bookkeeping -- all documents of a financial nature. Does reports on whether everything is paid which may be used for prosecution. |
| Obvious assessment is 1228.4, Tax inspector |
| Decision: Reserved at interview to assess Applicants more thoroughly in alternative occupations. |
[27] The next day, the visa officer recorded the following in his CAIPS notes:
| Assessment. PA receives 65 as tax inspector and this is 0 occupational factor. If I count one year experience as economist. Would receive 64. Even three years would give him only 68. Spouse receives 54 as drafting technologist. 52 as computer operator. PA's actual experience is of limited applicability in Canada. Since he doesn't do bookkeeping and isn't qualified to be an auditor. Refused. Not recommending discretion as points are adequate reflection of settlement potential. (emphasis mine) |
[28] He was asked on cross-examination what he meant when he wrote in his CAIPS notes "even three years would give him only 68". He answered the following:
| Three (3) years is the maximum experience that can be allotted to an economist under the classification system. |
[29] The visa officer's understanding of the Immigration Regulations on this point was not correct. Paragraph 3(d) of the Schedule to the Immigration Regulations dealing with the experience factor provides "when the number of units awarded under item 2 (education and training) is 17 or 18, 2 units for each year of experience not exceeding 4 years".
[30] Counsel for the Applicant argues this misunderstanding by the visa officer as to the maximum points which could be awarded to the Applicant for the experience factor led the visa officer to give up on the assessment of this factor including an examination of whether his experience as a financial inspector could translate into years of experience as an economist.
[31] Counsel for the Defendant counters by saying the CAIPS notes show the visa officer examined the Applicant thoroughly on the duties he actually performed in his various jobs and that this view is confirmed by his answers on cross-examination. Counsel for the Respondent added the burden of proof lies upon the Applicant to demonstrate the visa officer's assessment was wrong on this point. Counsel for the Respondent specifically pointed to the CAIPS notes where it is indicated the visa officer was satisfied that only one year's experience could be awarded to the Applicant for his work at the Institute of Research.
[32] I accept the submissions by counsel for the Applicant. My reading of the record does not satisfy me that the visa officer properly examined the Applicant's experience as a financial inspector to determine whether the experience he acquired there could count for experience as an economist.
[33] I conclude the visa officer's misinterpretation of the maximum units to be awarded under the experience factor led him to shut down his inquiry so to speak on this point.
[34] In the circumstances, as a result of my conclusion the Applicant could, if the assessment had properly been carried out, clear the 70 unit threshold. As a result the principles expressed in Syed v. Canada (Attorney General) (Docket IMM-3324-38, April 7, 1999) and Baruda v. The Minister of Citizenship and Immigration (Docket IMM-3152-97, October 28, 1998) have no application.
DISPOSITION
[35] For all of these reasons, this application for judicial review is allowed, the decision of the visa officer is set aside and the Applicant's application for permanent residence to Canada is returned for redetermination by another visa officer. The Applicant is entitled to costs.
___________________________
JUDGE
OTTAWA, ONTARIO
August 31, 2000
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