Date: 20010823
Docket: IMM-2503-00
Neutral Citation: 2001 FCT 944
Between:
XIE HAN BING,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
Muldoon J.
1. Introduction
[1] This is an application for judicial review of the decision of Judyanna Ng, a visa officer with the Canadian Consulate General in Hong Kong, rendered on April 3, 2000, refusing the applicant's application for permanent residence.
2. Statement of Facts
[2] The applicant submitted an application for permanent residence under the Independent category to the same Consulate in Hong Kong on November 12, 1998.
[3] On March 4, 1999, the application was reviewed, and it was determined that the applicant's English language ability would be a factor in the selection decision. Therefore, the applicant was given the opportunity to write an examination, known as the International English Language Testing System (the IELTS). The IELTS is used to measure prospective immigrants' language skills, and to determine if a selection interview can be waived.
[4] On September 29, 1999, the IELTS results were received, and on October 7, 1999, the application was again reviewed. The reviewing officer informed the applicant by letter dated October 8, 1999, that she was required to attend a selection interview, which she did on April 3, 2000.
[5] Because of the IELTS results, the visa officer determined that the applicant would not be tested for her reading and writing skills, and awarded her two credits for reading, and two credits for writing. The visa officer in assessing the applicant's speaking skills during the interview, awarded her no credits because the applicant could communicate in English only with great difficulty. Therefore, the applicant received a total of four credits, which entitled her to two units of assessment under subsection 3(b) of Factor 8 in Schedule 1 of the Immigration Regulations, 1978, SOR/78-172 as am.
[6] The visa officer states in her affidavit that she assessed the applicant's personal suitability for adaptability, motivation, initiative, and resourcefulness as required under Factor 9 in Schedule 1 of the Immigration Regulations, 1978, supra.
[7] The visa officer considered that the applicant had not demonstrated adaptability because she had always lived, studied and worked in her hometown, and had never lived in a foreign environment. She had been assigned employment by the State upon graduation in 1994, and had worked for the same state-owned company since then.
[8] The visa officer considered that the applicant had not demonstrated resourcefulness because she had not researched job opportunities in Canada, nor did she have a job strategy. The applicant had not made efforts to gather information about settling in Canada. Although the applicant told the visa officer that she had performed an internet search, she could not answer general questions about Canada, nor could she provide information regarding that search.
[9] The visa officer considered that the applicant had not demonstrated initiative nor motivation because she had not tried to improve her English language skills to prepare for immigration to Canada. Nor had she tried to improve her English skills before the interview. However, the applicant contradicts this assertion. She states at page 4 of her affidavit, which was based on her notes after the interview, that she told the visa officer that she had hired an English tutor, and that she was attending English classes three times every week. The visa officer denies that she was provided this information at page 7 of her affidavit. There were no cross-examinations conducted on either affidavit.
[10] The applicant also states on page 2 of her affidavit that she could not understand the visa officer very well because the visa officer spoke quickly and in a low voice. Moreover, the applicant states that there was a window between her and the visa officer which made communication difficult. This may be so, but it is a rarely, if ever, heard complaint concerning the Hong Kong facility.
[11] At the conclusion of the interview, the visa officer awarded the applicant three units of assessment for personal suitability. Overall, the applicant obtained 68 units of assessment, and her application was refused because she did not obtain the minimum of 70 units of assessment required under the Independent category.
[12] The visa officer's CAIPS computer assisted notes outline the basis for her assessment of the applicant's personal suitability:
PI shows little motivation, initiative, resourceful and adaptability. PI has never traveled outside of China. PI has little idea about Ca, stated she had done research thru internet to obtain info in Ca. She is unable to provide details. She has no idea re Can labour market, does not have plan re how to seek intended job in Ca. Although BELTS [sic - should be IELTS] test done in Aug 99 with poor result in speaking skills. PI has not shown initiative to take further courses to improve English skills in preparation for this int or for future settlement in Ca. PI's adaptability in question since she has little idea for intended destination, stated she had never had an interview for a job. Current job in the state owned institute was assigned by the govt after graduation. With the poor English skills, PI may encounter great difficulties to fit into Can labour market in the foreseeable future. I see little evidence of the level of adaptability that would be required to establish successfully in Ca.
[13] On April 3, 2000, the applicant was sent the following rejection letter:
This refers to your application for permanent residence in Canada, and your interview held on April 03, 2000. I have now completed my assessment of your application and I have determined that you do not meet the requirements for immigration to Canada in the Independent category.
Pursuant to subsections 8(1) and 9(1) of the Immigration Regulations, 1978 as amended, immigrants in the Independent category shall be assessed on the basis of each of the factors listed in column I of Schedule I of the Regulations. These factors are: education, education/training factor, experience, occupational demand, arranged employment or designated occupation, demographic factor, age, knowledge of English and French languages and, on the basis of an interview, personal suitability.
I have assessed you in the occupation of Electrical Engineer, NOC 2133.0, for which you earned the following units of assessment:
Age 10
Occupational Demand 05
Education/Training Factor 17
Experience 08
Arranged Employment 00
Demographic Factor 08
Education 15
English 02
French 00
Personal Suitability 03
Total 68
You have failed to earn the minimum required units of assessment required to pass in the Independent category (70).
Because you cannot meet the selection criteria established for Independents, you are a member of the class of persons who are inadmissible to Canada described in paragraph 19(2)(d) of the Immigration Act and I have refused your application. I have attached copies of the legislation referred to in this letter for your reference.
The applicant received this letter on April 16, 2000.
3. Issues
a. Did the visa officer err in assessing the applicant's number of attempts to improve her language ability under the personal suitability factor?; and
b. Did the visa officer err in assessing the applicant's travel history under the personal suitability factor?
4. Language Ability
[14] The applicant submits that the visa officer's findings regarding the applicant's language ability are irrelevant under the personal suitability factor. The visa officer's CAIPS notes and her affidavit indicate that the applicant's English ability was assessed or merely mentioned twice: once under factor 8, the language factor, and again under factor 9, the personal suitability factor. This is alleged to constitute double-counting, which is impermissible, and is an error of law.
5. Double Counting ?
[15] Double counting is always easier to allege than to demonstrate. That issue was dealt with quite correctly by Mr. Justice Pinard of this Court in Ajmal v. M.C.I. (1998) 44 Imm. L.R. (2d) 26, as follows:
¶ 8. The applicant also suggests that the visa officer double counted his linguistic abilities, education, and the fact that he has no relatives in Canada when he considered these factors again in assessing his personal suitability, The visa officer considered a number of factors in awarding only one unit of assessment for Personal Suitability. He explains as follows at paragraph 9 of his Affidavit:
9. For Personal Suitability, it was noted by me that the Applicant had poor potential. He had withdrawn from his studies and was being supported by a brother. He did not appear to be settling in well in New Zealand and would probably fare no better in Canada where he would not have the support of relatives. He was very slow in responding to questions and appeared to lack motivation and initiative.
¶ 9. Although the visa officer did note that the applicant had some difficulty speaking and comprehending English, there is no evidence to indicate that he considered this in evaluating the applicant's personal suitability. The written note with respect to the applicant's linguistic ability was simply made following the comments related to the applicant's motivation and initiative, all of which were made during the interview:
13 Poor potential.
Withdrew from studies in NZ. Does not appear to be settling in to NZ.well + would probably have difficulty in Cda where no relatives.
Very slow responding to questions.
Brother supporting him.
Lacks motivation and initiative.
14 Took English as a second language. Has some difficulty speaking + comprehending.
¶ 10. I now turn to the question of double counting of the applicant's education and lack of relatives in Canada. Notwithstanding the general principal (sic) 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 Regulations, it has 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, for example, Stefan v. Canada (M.C.I.) (1995), 35 Imm. L.R. (2d) 21 (F.C.T.D.); Parmar v. Canada (M.C.I.) (November 12, 1997), IMM-3177-96 (F.C.T.D.); and Vasilev v. Canada (M.C.I.) (1996), 100 F.T.R. 62). In the case at bar, I cannot accept the applicant's argument that the visa officer engaged in double counting with respect to his education and lack of relatives in Canada. With respect to the applicant's course of study, I prefer to follow Justice MacKay's reasoning in Parmar, supra, and find that the visa officer did not commit a reviewable error in concluding that it was relevant to the applicant's motivation and initiative that he had abandoned a course of study because he had "changed his mind".
[16] There is no double counting if and when the visa officer mentions twice the same attribute, but from a different perspective from that under which the attribute was first
mentioned and considered. So wrote Madame Justice Simpson in Stefan v. M.C.I. (supra) in paragraph 9 et seq. Of her reasons:
Education
9. The applicant was given the maximum points for her educational achievements and it is true that the Officer considered education a second time when he assessed personal suitability. However, education was considered from a different perspective under personal suitability. During that assessment, the question was whether the applicant had the training necessary to use her professional qualifications as a civil engineer in Canada.
Language
11. Similarly, the applicant was given points for her language ability, or put another way, her level of competence. The Officer then looked at her language training regime and concluded from her slow learning pace that she was not very adaptable. Again this analysis was error free. What must be seen in an analysis under personal suitability is an assessment focused on the four Factors and not on the skill level already recorded in other parts of the assessment.
12. If this focus is achieved then Zeng does not apply, and the fact that topics covered elsewhere in the assessment are looked at again from a different perspective involving the Factors will not constitute a reviewable error.
The above findings were lauded by Mr. Justice MacKay in Parmar v. M.C.I. (supra) especially in paragraphs ¶ 30 and ¶ 31. Assessment of the same factor as previously considered "so long as it is looked at from a different perspective" from "when it is assessed as an independent factor", is no error.
[17] Furthermore the applicant must bear the onus to present a convincing case to be granted permanent residence in Canada. The applicant was given an ample opportunity to make such a case, but the attitude she evinced causes this Court to believe that she was her
own greatest obstacle. Many applicants complain, sometimes quite rightly, that they are entitled to be heard and treated fairly by the visa officer in such circumstances as these. However, that notion, in matters of prerogative relief claimed, cuts both ways.
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6. The Applicant's Submissions
[18] The applicant's affidavit which she tendered to support her application for the discretionary remedies of certiorari and mandamus is hyper-critical and personally snide and whiny - in a word, unfair - in regard to the visa officer in this matter. The applicant filed a lengthy affidavit, too lengthy to be recited in full, here. The following are selected remarks by the applicant, in her affidavit.
***
2. At the visa office, [in Hong Kong] my call number was A10; I handed in my invitation at window 9, and got a number H24.
3. One hour later, I was called to come into the room 11 for my interview.
4. The immigrant officer is a Hong Kong lady who was in her twenties, slim and wearing very heavy make-up.
5. She was conversant in both English and Mandarin languages.
6. She said "My name is - Li [sic]. I am responsible for your application. According to your IELTS scores, you're good at writing and reading. At this interview, I will mainly test your speaking. You should speak as much as possible, then I will judge your speaking is good or not.
***
8. Q.: "You have bachelor's degree in engineering?"
9. A.: "Yes. Here you are" (I intended to hand in all my documents, but the window is so small that I could hand to her my diplomas certificate and degree certificate with the related notarized certificates only.)
***
19. Q.: "Do you pass the examinations of engineers?"
20. A.: "Yes, I have passed English examination and computer examination."
21. Q.: "Where is your pass certificate?"
22. A.:"I left it my home."
23. Q.:"Can you get it this morning?"
24. A.:"Sorry, I can't. I am from mainland."
25. She looked irritated and impatient at that time.
26. Q.: "Describe the main responsibilities of yours at work." (She spoke very fast and in a very low voice, which was also difficult to understand owing to the window between us.)
27. A.: "I beg your pardon?"
28. Q.: Then she asked the following question (in the Chinese language) "Describe the main responsibilities of yours at your daily work."
29. A.: "I will describe my daily work. I arrive in at my department at 8 o'clock in the morning. I observe the status of No. 7 signal and truck. If I find there's something wrong with the
9
switch, I research the reason and solve the problem as soon as possible. Then I collect traffic data in rush hour and analysis the traffic report."
30. Q.: "I know your work. Are you mainly responsible for repair?"
31. A.: "I beg your pardon?" (In fact I understood what she said, but I knew this is a misleading question full of danger to her assessment of my experience.)
32. Q.: "You always let me repeat, there's serious problem in your English."
33. (She began to speak Chinese and she conducted the rest part of the interview in Chinese.)
***
42. *** Then she asked: "What preparations have you made for your immigration?"
43. A.: "After I arrive in Canada, I will rent a house at first, then I will find a job."
44. Q.: "You didn't get what I said."
45. Q.: "After graduation, how did you find your job? Is your company ran by your government?"
46. A.: "I was allocated to Changchun Telecommunications Bureau by my university."
47. Q.: "I Know the situation in Mainland China. But now we have to judge according to the Canadian standards."
48. Q.: "Do you keep on learning English after IELTS?
49. A,: "Yes, I have been working hard to improve my English. I have an English tutor and have English class three times every week, each time is for 2 hours."
50. Q.: "But why do you stay on this level?"
51. A.: "I am very nervous right now."
52. Q.: "You are always nervous. You were nervous when you wrote IELTS. And now you are nervous again. Nervousness is not the reason. If you were really nervous, you should not even understand Chinese."
53. A.: "I know nervous is not a good reason. But I am nervous."
54. Q.: "According to your situation, the total mark for your immigration assessment is 68, and you can't pass."
55. A.: "Before the interview, I have got 63 points already.:
56. Q.: "I don't know that. What I know is that the mark I give you is 68."
57. A.: "Maybe I did not explain my education and experience clearly enough."
58. Q.: "I believe that you are an engineer, and I also know your educational background."
59. A.: "Can you please tell me the reason? I will try and improve next time."
60. Q.: (She nodded) "Improve your English first, your English is poor. Apply again after you improve your English."
61. A.: "Can you please tell me in detail?"
62. Q.: "Of course, I can (impatiently and loudly) "Your age gets full marks, job occupation gets full, the total is 68."
63. A.: "I am good at reading and writing, so my language is 2 points?"
64. (She nodded)
65. A.: "So my adaptability is only 3 points."
66. (She nodded) "Only 3 points."
67. A.: "Why?" (This was the only Chinese I spoke at the interview. When I raised my voice, even the immigrant officer at window 10 came to see what happened.)
***
76. Q.: "You can't take too much time because there are many people waiting in the line. In order to eliminate misunderstanding, I will call the security guard."
77. A.: "It's unfair to me."
78. Q.: "What makes you say that?"
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79. A.: "I am a very excellent person. If I cannot immigrate to Canada, it is not my loss. It's Canada's loss."
80. Q.: "You can have your own opinions. I will write you and give you a detailed explanation in 15 days. You must get out of here immediately, otherwise I will call the security guard."
81. (She pulled down the curtain and I left)
82. The immigration officer is extremely autocratically and self-conceited. It seems that she wants to demonstrate: I dominate your interview result. I don't know what I did to offend her.
83. As for the total mark of 68 points, she marked my adaptability 3 just to exhibit her privilege since the other factors are beyond her control.
84. Her "logic" was: I have never been aboard [sic] nor to Canada, which implies I know nothing about Canada; and I had no interview upon my graduation and have never changed my job, which means I can't find a job in Canada.
85. In fact, the real logic is: I didn't flatter her and cater to her.
86. The refusal decision was first communicated in writing to me on April 16, 200.
[19] This Court infers from the applicant's affidavit that any and all impartial words or conduct on the visa officer's part would have met with the applicant's disapproval. No visa officer except one who would flatter the applicant as she herself suggested against the visa officer, in her paragraph 85, could have conducted a proper interview in the applicant's eyes. She played the rôle of spoiled child, and levied unfair accusations against the visa officer.
[20] In this Court of equity fairness operates both ways, so, one who seeks equity must do equity. If the visa officer had spoken of the applicant in the manner in which the applicant wrote of the visa officer, there would be a storm of protest. So, this Court cannot regard the applicant so seriously as a more moderate and fair applicant would be regarded.
[21] Moreover, there was no double counting and the applicant herself behaves unfairly and inequitable vis-à-vis the visa officer, Judyanna Ng. It is almost impossible to credit the applicant's allegations of abrupt treatment when one considers the lengths to which the visa officer and the Consulate went to help the applicant, as seen in Ms. Ng's paragraphs 4, 5, 6, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19 and 20. The above described point of view is reaffirmed in the remaining paragraphs of Ms. Ng's affidavit which show that the visa officer's matter-
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of-fact professionalism provoked mainly surliness from the applicant. There is no denying that the visa officer was badly treated for even her good advice to the applicant to improve her English language skills and to apply again later.
7. The Respondent's Case
[22] The visa officer swore, in part, as follows:
24. *** I determined her speaking skills were as reflected in the IELTS test result i.e. with difficulty. It would be impossible to conduct the interview with the Applicant in English. I therefore conducted the rest of the interview in Mandarin.
25. With respect to paragraphs 48 to 52 of the applicant's affidavit, during the interview I asked the applicant if she took any English training after the IELTS test as she scored unsatisfactory in speaking. The applicant told me she had not. The applicant did not provide the details that are suggested in paragraph 49 of her affidavit.
[23] A visa officer is not empowered to reconsider personal factors already assessed in Schedule I, but the visa officer can consider such factors anew in assessing personal suitability from the new perspective of how they demonstrate (if at all) the applicant's ability to become successfully established in regard to the ninth factor's characteristics. So the applicant's English language skill was found to be unsatisfactory, but it had to be considered from the different perspective of how her neglecting to improve her skill in the meanwhile demonstrated her unacceptable lack of initiative and motivation, which, apart from her poor level of skills, would surely and independently work against her successful establishment in Canadian society. There was no double counting.
[24] It may be that the applicant's generally negative attitude has something to do with her demonstrated lack of initiative and motivation. She does not merit discretionary relief from this Court. The visa officer's assessment was correct.
8. Conclusion
[25] In sum, the Court holds that Xie Han Bing's applications for certiorari and mandamus are dismissed. Neither of the counsel for the respective parties at the hearing, was prepared to posit any serious question of general importance for certification for consideration by the Court of Appeal, under section 83 of the Act, and so, no question is certified.
Judge
Ottawa, Ontario
August 23, 2001
Date:20010823
Docket: IMM-2503-00
Ottawa, Ontario, August 23,1001
Present: The Honourable Mr. Justice Muldoon
Between:
XIE HAN BING,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
O R D E R
UPON application for judicial review including certiorari and mandamus of the decision file # B 0376 16036 RET of a visa officer in Hong Kong, communicated to the applicant on April 16, 2000; and upon this case having come on for hearing in Toronto, on May 10, 2001 in the presence of both parties' respective counsel, now
THIS COURT ORDERS that the said application for judicial review be, and it is hereby, dismissed. No question is certified.
Judge
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