Date: 20020822
Docket: IMM-6464-00
Neutral citation: 2002 FCT 897
BETWEEN:
GAGIK SHAHINIAN
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.A. (ex officio)
[1] This is a judicial review of a decision of a visa officer which denied the applicant's application for a permanent resident visa as an engineer. This case requires particularly close scrutiny because the visa officer awarded the applicant 67 units of assessment which included only 2 units for English language ability and 2 units for personal suitability.
[2] Although other issues were argued, there are only two that require determination.
1. Was the visa officer's assessment of the applicant's ability to read English unreasonable?
2. Did the visa officer ignore evidence in his personal suitability award?
[3] As to the first issue, the visa officer concluded that the applicant spoke and wrote English "well". However, he found the applicant read English "with difficulty". As the total number of credits was 4, the applicant was awarded only 2 units of assessment for English pursuant to Schedule I, Factor 8 paragraph 3(b).
[4] As to the applicant's reading ability, in the CAIPS notes, the visa officer wrote:
After reading the text, he was not able to give a coherent summary of what he had just read.
[5] I am mindful of the high level of deference to be accorded visa officers' assessments and in particular, their assessments of an applicant's ability to speak, read and write English or French. Indeed, there is, of necessity, some subjectivity involved in such assessment. Nonetheless, on the basis of objective criteria, I am of the respectful opinion that the document the applicant was asked to read did not provide a reasonable test of the applicant's ability to read and comprehend English.
[6] The document was entitled "Student Temporary Employment in Canada" on the letterhead of the Canadian High Commission in London. The document is two pages long. It outlines two programs for students from the United Kingdom or Ireland and provides the requirements for each program. The document contains a number of acronyms. It also refers to students from other countries, for some of whom there is a working holiday program while for others, there is not. The document also provides the basis on which applications will be considered, processing times and reasons for not responding to information requests.
[7] The reading ability assessment is to determine if an applicant can read English and understand what he has read. However, when a relatively long procedural document, containing a number of regulatory requirements, is used in the assessment, and there is a failure of comprehension, it cannot be clear whether the failure is one of being unable to read and understand the English language, or whether it is an inability to read and understand procedural and regulatory requirements. The Language Assessment Guide, provided to visa officers, provides for an applicant to be assessed as being able to read "well" if the applicant is able to comprehend almost all documents of a general non-abstract nature. I do not think that the document used in this case fits that category. While it may be relatively straightforward to a person working in the immigration field, or to a lawyer, the document may not be immediately comprehensible to other persons who may have to spend some time understanding its contents. To ask someone to read such a document as part of a reading test and to then ask them to immediately respond as to its meaning, is, in my view, unreasonable.
[8] I do not say that an immigration document might never be used for a reading test. In Verma v. Minister of Citizenship and Immigration, 2001 FCT 945, the applicant was asked to read a short paragraph from the Canada Immigration Self-Assessment Guide for a Prospective Immigrant, dealing with applicants who have a criminal conviction. In that case, the general idea of the paragraph was that a person with a criminal conviction will not be admitted to Canada except in exceptional circumstances or after rehabilitation. The topic was one covered in the Permanent Resident Application Form which the applicant in that case said he understood. In that case, the reading test, based on that document, was not found to be unfair.
[9] By contrast, in this case, the document in issue was not one pertaining to the applicant's application for a permanent resident visa. It was not just one paragraph that he was asked to read but a two-page document outlining procedures and other statements of a legal nature. It contained acronyms.
[10] It seems to me that, as a general rule, in assessing whether an applicant has the ability to read well, a more every-day passage, such as a passage from a newspaper article, might be more appropriate. However, as I have said, the Regulations do not prescribe the type of document to be used and, in some circumstances, an immigration document might not be inappropriate.
[11] For the foregoing reasons, I am of the opinion that the reading test administered by the visa officer was not a reasonable basis for assessing whether the applicant could read English "well". Had the visa officer assessed the applicant as reading English "well", he would have scored 6 instead of 2 units and his total would have been 71 units, and he would have been eligible for a permanent resident visa.
[12] While that finding is sufficient to dispose of this judicial review, I would also observe that the visa officer awarded the applicant only 2 units for personal suitability, at least in part because, according to the CAIPS notes, the "[...] applicant has not demonstrated any particular initiative to upgrade his deficient language skills [...]". There is no mention in the CAIPS notes of a document provided at the interview to the visa officer by the applicant showing his registration in an English course. In his affidavit, the visa officer concedes that the applicant did have such a document. However, he continues:
There were, as far as I can remember, no documents comparable to for example a TOEFEL score sheet, which would allow an objective assessment of the participant's skill or progress made to upgrade his English.
[13] The visa officer did not retain the document shown to him by the applicant and his CAIPS notes were entered on November 15, 2000, about two weeks after the interview on November 2, 2000. In his affidavit, the visa officer suggests that the problem was the absence of a TOEFEL score sheet or something else allowing assessment of the applicant's progress made to upgrade his English. However, in the CAIPS notes, the reason given for the unusually low personal suitability score was the applicant's lack of initiative to upgrade his English. Irrespective of his skills or progress, the registration in the English course by the applicant would appear to be some evidence of initiative to upgrade his English.
[14] Had he taken it into account, it may be that the visa officer might have given little or no weight to the registration. However, the CAIPS notes make no mention of the registration and they were entered about two weeks after the interview. I am left with the impression that the visa officer simply did not take the registration into account when making his "no initiative" finding. As such, his personal suitability finding cannot stand.
[15] For the reasons given, I would allow the judicial review and remit the matter to a different visa officer for redetermination on the basis of the existing record and such new evidence as the applicant may choose to submit or the visa officer may request.
"Marshall Rothstein"
Judge
August 22, 2002
Toronto, Ontario
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-6464-00
STYLE OF CAUSE: GAGIK SHAHINIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, AUGUST 15, 2002
REASONS FOR ORDER BY: ROTHSTEIN J.A.
DATED: THURSDAY, AUGUST 22, 2002
APPEARANCES BY: Ms. Nancy Myles Elliott
For the Applicant
Ms. Pamela Larmondin
For the Respondent
SOLICITORS OF RECORD: Ms. Nancy Myles Elliott
Barristers and Solicitors
130 Bloor Street
Suite 601
Toronto, Ontario
M5S 1N5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20020822
Docket: IMM-6464-00
BETWEEN:
GAGIK SHAHINIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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