Date: 20020628
Docket: IMM-3959-00
Neutral citation: 2002 FCT 733
BETWEEN:
IQBAL MOHD KAZI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
LAYDEN-STEVENSON J.
[1] Iqbal Mohd Kazi, in his application for judicial review, requests that the June 29, 2000 decision of a visa officer at the Canadian High Commission in Singapore, denying his application for permanent residence in Canada, be quashed and that the application for permanent residence be approved or alternatively be referred back for reconsideration.
[2] The applicant is a twenty-eight year old Bangladesh citizen. His brother, Belal Mohammed Kazi, operates the Golden Café Family Restaurant in Oshawa, Ontario. Belal Kazi extended an offer of employment to the applicant that Human Resources Development Canada validated on May 3, 1999. The applicant applied for permanent residence in Canada in the assisted relative category on October 4, 1999. His application listed his intended occupation in Canada as Tandoorie Chef (specialist chef), National Occupational Classification (NOC) 6241.3. On June 12, 2000, the applicant was interviewed by the visa officer whose notes of the interview are contained in the Computer Assisted Immigration Processing System (CAIPS) notes and form part of the Tribunal Record. By letter dated June 29, 2000, Mr. Kazi's application was denied on the basis that, having been awarded 34 units of assessment rather than the minimum requirement of 65 for persons in the assisted relative category, he failed to qualify for immigration.
[3] The applicant alleges that the visa officer erred in law by failing to provide the services of an interpreter when it became apparent in the interview that the applicant was not understanding. The applicant argues that a duty of fairness is owed by the visa officer when conducting an interview and relies on Fong v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.), Re K. (H.). (an infant), [1967] 1 All E.R. 226 and Chen v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R.73.
[4] The second alleged error flows from the first and, it is submitted, a meaningful interview regarding the applicant's experience was impossible because he could not properly understand the officer and hence was not able to answer the questions. The result, it is argued, is that the visa officer obtained incorrect and incomplete information regarding the applicant's experiences. In this regard, the applicant relies on Giacca v. Canada (Minister of Citizenship and Immigration) (2001), 200 F.T.R. 107. The third alleged error is characterized as an "error of fact and law in assessment" and the applicant takes issue with the education, experience, and personal suitability units of assessment awarded.
[5] The respondent argues that the duty of fairness owed by a visa officer is limited and that he or she is not required to disclose his or her concerns with respect to an applicant's ability to satisfy the criteria for admission. Similarly, the visa officer is not required to disclose concerns unless the applicant could not foresee them. The respondent relies on Yu v. Canada (Minister of Employment and Immigration) (1990), 36 F.T.R. 296 and Ali v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1. In relation to the interpreter, the respondent submits that there was no duty to provide an interpreter because the applicant's application indicated that he could speak English fluently and read and write English well. The onus was on the applicant and not the visa officer to obtain an interpreter. The respondent relies on Knarik v. Canada (Solicitor General) (1994), 79 F.T.R. 297 and Chavda v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1190.
[6] At the hearing, counsel specifically referred to the call-in letter received by the applicant. The visa officer's affidavit, at paragraph 10 states:
...I note that the Applicant's interview call-in letter contained the following instructions, notwithstanding that additional units for language assessment would not, in and of themselves, have changed the selection decision:
Interpreters: For interviews conducted at this office, we will provide Mandarin interpreters for applicants who are unable to communicate in either English or French. Applicants who wish to use their own Mandarin interpreter, or be interviewed in any other language, must arrange for a professional and independent interpreter to accompany them to the interview at their own expense.
[7] The letter received by the applicant did not contain the above-cited paragraph. Rather, it contained the following paragraph:
Your interview will be conducted in English (or, if you prefer, in French). In assessing your eligibility and capability for successful establishment in Canada, the interviewing officer will focus on some or all of the following points:
* your ability to speak, read and write English and/or French (your interviewing officer may conduct tests in this regard)
* your educational background
* your training and experience in your indicated intended occupation in Canada
* your plans for settlement and employment in Canada
Please prepare yourself accordingly, and ensure that you bring with you to your interview any documentation that might be relevant to the officer's assessment of these factors.
[8] The discrepancy was discovered and addressed by counsel upon the applicant's receipt of the visa officer's affidavit. The respondent readily acknowledged that the visa officer was mistaken regarding the contents of the call-in letter and a copy of the letter that had actually been forwarded to the applicant was included in the Record on consent.
[9] The respondent argued that the fact that the applicant was advised in advance that the interview would be conducted in English was all the more reason why the applicant's argument regarding breach of the duty of fairness should fail. The applicant was forewarned and told to prepare himself accordingly. He cannot, now, be heard to complain when he failed to take whatever steps were necessary to ensure that he put his best case before the visa officer.
[10] It must be mentioned that during the course of his oral argument, the applicant's counsel took a turn that put him on a new path. Counsel changed his argument from one alleging breach of procedural fairness for failure to provide an interpreter to one alleging breach of procedural fairness for failure to give notice that the obligation regarding interpretation, if required, lay with the applicant. He submitted that the visa officer was required to arrest the interview to enable the applicant to make provision for an interpreter. The respondent's counsel, rightfully, took exception to these arguments for they were not raised in the written submission and the respondent had not had notice of them. The respondent requested the opportunity to file written submissions in response to the arguments, should the Court be prepared to entertain them.
[11] It is common ground that the applicant had very little ability to comprehend English. He states so unequivocally in his affidavit and the visa officer's affidavit and CAIPS notes refer to the applicant having inflated his capacity in English on his application. The visa officer's notes refer to the fact that the applicant was unable to carry the interview in English, despite reiterations, rephrasing and simplification on the part of the officer. This was the basis upon which the applicant's argument was structured and the position taken in the written submissions was:
It is submitted that once it became apparent that the Applicant was having significant difficulty understanding him, in fact the officer awarded him zero points for language ability in English, it was incumbent on him [the visa officer] to obtain the assistance of an interpreter.
[12] It is not open to the applicant to recast his arguments at the hearing. Where an issue is not contained in the applicant's memorandum, counsel for the respondent has no opportunity to respond and it is not appropriate for the Court to decide it: Coomaraswamy et al v. Canada (Minister of Citizenship and Immigration), 2002 FCA 153, [2002] F.C.J. No. 603. Accordingly, the arguments alleging a requirement to give notice to the applicant of his right to retain an interpreter will not be considered.
[13] The respondent relies heavily on Chavda, supra, a decision of Lutfy, A.C.J. and in particular the following excerpts:
Counsel submitted that the visa officer's difficulty in understanding the applicant's English communications during the interview required an adjournment to allow one of the two parties to arrange for an interpreter. I do not agree.
In his application form, the applicant noted that he spoke, read and wrote English fluently. The visa officer's CAIPS notes, which were prepared in French, indicate that the applicant spoke English with difficulty and that it was "presqu'impossible de faire l'entrevue" (almost impossible to conduct the interview).
Counsel for the applicant was unable to present any case law in support of her argument. In my view, an applicant who claims to be fluent in English cannot expect the respondent's officials to arrange for an interpreter. If this applicant was of the view that his ability to make himself understood by the visa officer was detrimentally affected by the absence of an interpreter, neither he nor his counsel raised the issue prior to the hearing in this proceeding. The visa officer's CAIPS notes that the interview was difficult because of the applicant's weak English cannot be the basis of this Court's intervention in the circumstances of this case. [Reference is made by way of notation to Lin v.Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1853 (QL) (TD) at paragraph 2 and Knarik v. Canada (Solicitor General) (1994, 79 F.T.R. 297 at paragraphs 2 and 4].
[14] The applicant argues that the circumstances are analagous to those in Giacca, supra, a decision of Simpson, J. In Giacca, the applicant was being interviewed by a visa officer for the purpose of determining whether her ability in English met the requirements for a live-in caregiver. The issue on which the decision rested was the quality of the speakers in the cubicle in which the applicant was tested. It was an important issue because the applicant and the officer were separated by glass and communicated through microphones and speakers. The speakers cut out intermittently during the interview and the applicant often did not hear the questions the officer asked. The officer acknowledged that there had been technical difficulties with the speakers. Justice Simpson concluded that the officer erred by conducting the applicant's test knowing that the speakers in the cubicle were not functioning reliably.
[15] The duty of fairness prescribes minimum standards of procedural decency and the content of the duty varies according to context. Several factors tend to reduce the content of the duty of fairness owed to visa applicants. These include the absence of a legal right to a visa, the imposition on the applicant of the burden of establishing eligibility for a visa as well as the less serious impact on the individual that the refusal of a visa typically has, compared with the removal of a benefit such as continuing residence in Canada. When setting the content of the duty of fairness appropriate for the determination of visa applications, the Court must guard against imposing a level of procedural formality that, given the volume of applications that visa officers are required to process, would unduly encumber efficient administration. The public interest in containing administrative costs and in not hindering expeditious decision-making must be weighed against the benefits of participation in the process by the person directly affected. Khan v. Canada (Minister of Citizenship and Immigration) (2001), 283 N.R. 173 (F.C.A.).
[16] Here, the applicant, in his application, indicated that he could speak English fluently and that he could read and write well. The letter sent to the applicant advising him of the time, date and place of his interview stated that the interview would be conducted in English. The applicant did not ask the visa officer to stop the interview, did not ask for time to procure an interpreter and did not voice any objection to the continuation of the interview. The applicant had previously applied for temporary entry to Canada for employment purposes in April, 1999. That interview had been conducted in English.
[17] The visa officer's obligation is to conduct the interview to determine whether or not the applicant meets the requirements to be granted permanent residence in Canada. The onus to satisfy the visa officer is on the applicant. If the applicant feels he is unable to meet that onus because he cannot understand English, the onus is on the applicant to address it. The situation in Giacca, supra is distinguishable because there, the malfunctioning speakers constituted an external factor over which the applicant had no control. I therefore adopt and accept the reasoning of Lutfy, A.C.J. in Chavda, supra and conclude that it applies to the facts and circumstances of this case.
[18] In view of my conclusion on the first alleged error, it follows that the applicant cannot be heard to complain that the interview was not meaningful as a result of his inability to understand English.
[19] Regarding the arguments with respect to the units of assessment awarded for education, experience and personal suitability, I will deal with each in turn. The applicant completed high school as an irregular student. The visa officer concluded that an irregular student is not permitted admission into university and awarded 5 units of assessment for education. The applicant says this is incorrect and that he is enrolled in a Bachelor of Arts program at Gohira College. There is no indication that the applicant so advised the visa officer. The evidence before the visa officer at the interview was a high school diploma that did not qualify the applicant for admission to university. The visa officer afforded the applicant an opportunity to address the education assessment and the applicant did not provide anything further. Therefore, he was assessed accordingly. There was no error.
[20] Regarding experience, the applicant was asked several simple questions orally and in writing. The applicant could not explain or define simple techniques and concepts that are central to a chef's experience. He could not explain the differences between basic dishes, methods of food preparation or ingredients. He could not explain anything about tandoori cooking. The visa officer informed the applicant that he was concerned about the experience and provided time for the applicant to offer further information. He did not. There was no error in the award.
[21] In view of the findings in relation to education and experience, even if there was an error with respect to personal suitability, it would be immaterial. If the applicant were granted the maximum 10 points for personal suitability, his total units of assessment would be 40 which falls far short of the required minimum. An error not material to the outcome cannot affect the result: Patel v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 178 (C.A.).
[22] Having considered the contents of the Tribunal Record, including the applicant's application and supporting documents, the affidavits of the applicant and the visa officer and the submissions of counsel, I find that the visa officer's conclusions were reasonably open to him. The application for judicial review is therefore dismissed.
[23] Counsel for the respondent suggested the following question for certification:
Is there a notice requirement that a visa officer notify a potential interviewee of a right to bring an interpreter where an applicant has indicated fluency in English on the application form?
[24] Counsel for the applicant argued against the certification of the question on the basis that the issue was narrow and of limited duration in view of the new legislation.
[25] The proposed question does not bear on the reasons for the dismissal of the application therefore an answer from the Court of Appeal to the proposed question could not affect the outcome of the judicial review proceeding. The question will not be certified.
___________________________________
Judge
Ottawa, Ontario
June 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3959-00
STYLE OF CAUSE: Iqbal Mohd Kazi v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 17, 2002
REASONS FOR ORDER OF The Honourable Madam Justice Layden-Stevenson
DATED: June 28, 2002
APPEARANCES:
Mr. Yehuda LevinsonFOR THE APPLICANT
Mr. Stephen JarvisFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Yehuda LevinsonFOR THE APPLICANT
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada
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