Date: 19990419
Docket: IMM-1309-98
BETWEEN:
ALI HAYDAR ATACAN
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] The applicant filed an application for judicial review of the decision of a Visa Officer dated February 13, 1998 rejecting the application for permanent residence in Canada. The applicant seeks an order in the nature of certiorari quashing the decision and an order of mandamus directing the respondent to process the applicant's application in accordance with the Immigration Act and regulations.
[2] The applicant, a citizen of Turkey, has been residing in Saudi Arabia since 1993. On March 25, 1997 he applied to the Canadian Embassy Immigration Section in Paris, France, for permanent residence in Canada in the independent worker category as an accountant (CCDO 1171-114). An interview was held on December 15, 1997 with Visa Officer Louise Van Winkle.
[3] By letter dated February 13, 1998, the Visa Officer advised the applicant that his application had been assessed under he designated occupation of bookkeeper since he failed to provide satisfactory proof of experience or the equivalent education to qualify as an accountant. The letter further advised that his application was refused because he did not obtain the minimum units of assessment of 70 points to qualify for immigration in the independent worker category. The applicant was granted 65 points in the designated occupation of bookkeeper (CCDO 4131-114):
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Specific Vocational Preparation (or) |
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Education/Training Factor 11 |
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[4] Firstly, the applicant submits that the Visa Officer's assessment is unreasonable in light of the documentation filed by the applicant, namely, proof of completion of French classes with the Centre international d'étude des langues and the Centre franco-saoudien. This document indicates that he progressed to advanced level of study in 1996. Further, it is submitted that the manner in which the assessment of the applicant's language ability was conducted. The Visa Officer's reliance on language certificates only and her failure to test the applicant's command of French, as well as to inform the applicant of her concerns regarding his skills in French amount to a serious breach of natural justice and a failure on her part to exercise her jurisdiction.
[5] Secondly, the applicant submits that the Visa officer failed to properly consider the documentation filed after the interview confirming his experience and qualifications as an accountant. It is argued that it was capricious of the Officer to allow the applicant to file further documents regarding his experience as an accountant and to later disregard it on the grounds that the documents were unofficial, self-serving and deserving of little weight because dated after the interview. The applicant further attacks the Visa Officer's finding that the applicant did not have the equivalent education or the specific training equivalent to that of an accountant in Canada. This is unreasonable in light of the applicant's degree and graduate certificate in business during which he completed accounting courses as part of his studies.
[6] The respondent argues that the Officer did not err in rejecting the applicant's application for permanent residence in Canada. In coming to a decision, it is submitted that the Visa Officer properly exercised her discretion in accordance with the principles of natural justice and that reliance was not placed upon irrelevant or extraneous considerations.
[7] It is submitted that it was open to the Visa Officer to assess the applicant's language ability based on course certificates; that the Visa Officer correctly assessed the applicant's experience and training according to Canadian standards, that her assessment is not patently unreasonable and that it was open to the Officer to determine that the applicant's experience and training did not warrant any units for experience as an accountant.
[8] The applicant raises two issues: 1) whether the Visa Officer committed a reviewable error in assessing the applicant's language skills in French; and 2) whether the Visa Officer made a determination without regard for the material before her, ignored the evidence or made findings of fact in an arbitrary and capricious manner.
[9] The Visa Officer's assessment of the applicant's knowledge of French gives rise to two related issues. Whether the Officer's assessment is unreasonable and whether the Officer breached the principles of natural justice in conducting her assessment.
[10] The applicant's main contention is that the two units assessed by the Visa Officer does not reflect his knowledge of French and that he should have been awarded six units.
[11] The Officer's decision is silent on this issue. In her affidavit, she states that she considered two certificates in reaching a conclusion. The first one, issued by the Centre international d'étude des langues in French, confirmed that the applicant enrolled in a four week program in the summer of 1995 engaging in 80 hours of semi-intensive French studies at a level of intermediate-advanced. The second, from the Centre franco-saoudien in Djedda, which states that the applicant progressed from an elementary level in 1994 to advanced in 1996. The Officer concluded that the applicant's French was well but not fluent. Thus, the Officer indicates in her affidavit that she granted the applicant two units for French, instead of three for fluency.
[12] In the case of Sharif v. M.C.I., (1996) 125 F.T.R. 148 relied upon by the respondent, Justice Dubé states at page 150 that "In order for her [the officer] to determine that the applicant is "fluent" in English, he must demonstrate that he is able to function in English in all circumstances in which a native speaker of the English language would be at ease". The Visa Officer carefully considered the applicant's certificates and I am unable to find that her assessment is unreasonable. However, this does not dispose of the issue.
[13] As submitted by the applicant, I am satisfied that the Officer's failure to test his command of French amounts to a breach of natural justice. The applicant's counsel relies on Chatrova v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 59 (F.C.T.D.) and Muliadi v. M.E.I. (1986) 2 F.C. 205 (C.A.) in support of his contention that the applicant was entitled to a fair and independent assessment of his French Knowledge.
[14] In Chatrova, supra, Justice Reed set aside a visa officer"s decision to dismiss an application for permanent residence on the basis, inter alia , that the applicant"s language skills had been improperly assessed. The officer unilaterally decided, without testing the applicant"s writing skills, that she was fluent in English, but not flawless, and granted two units of assessment instead of three for English. Justice Reed reasoned as follows at pages 60-61:
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I am persuaded that the decision under review should be set aside. In the first place, it is clear to me that the visa officer did not properly evaluate the applicant's language skills. I will refer first to the arguments concerning the assessment of her verbal skills. In his decision letter, refusing the applicant an immigrant visa, the visa officer explained to her that her English was good but not "flawless". The applicant is not required to have flawless English in order to be awarded three points. The visa officer has to assess whether her English is "fluent". I do not place much emphasis on the wording of the visa officer's letter since the visa officer's notes indicate that it was fluency, not flawlessness, that he assessed. At the same time, the use of the word "flawless", in the decision letter, understandably left the applicant somewhat puzzled. It must have raised in her mind a question as to whether she was being fairly assessed. She responded to that letter by stating that she had never claimed her English to be flawless but she did claim to be fluent. |
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I turn to the assessment of her ability to write in English. It is this assessment that I find most troublesome. The visa officer assumed that the applicant's ability in this areas was comparable to her ability to speak the language. She had claimed fluency in all three areas which are assessed: reading, writing and speaking. The visa officer accepted her self assessment insofar as reading is concerned and awarded her three points. He awarded her two points for her verbal skills because he determined, on speaking to her, that her English was good but not fluent. He assumed, however, that her writing ability was comparable to her speaking ability, not to her reading ability. No test was done nor was she asked to demonstrate her writing ability. In the circumstances of this case, this is a significant error. |
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The applicant has a university degree for which her major area of study was English language and literature. Following her graduation she held several jobs including that of English teacher and librarian. She now works with the Lativian - Russian Joint Venture Solis - Riga. In that job she works mainly in the Russian and Lativian languages but she also translates documents, when required, into English. It is certainly within the common knowledge of many people who acquire a second language that when one is not surrounded by the spoken language, fluency in reading and writing is more easily attained than fluency in speaking. Even if I may not take notice of this consideration, given the applicant's educational and employment history, I do not think the visa officer can reject her self assessment with respect to her writing ability on the basis of the assumption that it is at the same level as her speaking ability. Counsel for the respondent argues that it is for the applicant to prove her skills. That is so but, in the circumstances of this case, I think she is entitled to be alerted to the fact that her self assessment is being questioned before a burden falls on her to provide further evidence in this regard. |
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[15] In Muliadi, supra, the Federal Court of Appeal held that a visa officer has a duty, before disposing of an application, to inform the applicant of a negative assessment and to give him an opportunity to correct or contradict it. The Court further stated that the burden on the applicant to prove that he is legally entitled to enter Canada does not relieve the visa officer of the duty to act fairly.
[16] I am in agreement with applicant"s counsel that there has been a breach of fairness and that the officer should have given the applicant the opportunity to fully present his case by informing him of her negative assessment and giving him the opportunity to be tested.
[17] The respondent submits that, even if the maximum of units had been awarded to the applicant for his command of French, the applicant"s overall assessment would only reach 66 points.
[18] The underlying principle for the respondent"s contention is that a breach of natural justice will not lead a Court to intervene where there would be no purpose in remitting the matter back: Yassine v. Canada (M.E.I.) (1994), 27 Imm. L.R. (2d) 135 (F.C.A.).
[19] Schedule I of the Immigration Regulations, 1978, paragraph 2 under Factor 8 " Knowledge of English and French Languages" reads as follows:
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For the second official language, whether English of 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: |
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(a) for an ability to speak, read or write fluently, two credits shall be awarded for each ability; |
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(b) for an ability to speak, read or write well but not fluent, one credit shall be awarded for each ability; and |
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(c) for an ability to speak, read or write with difficulty, no credits shall be awarded for that ability. |
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[20] In light of the foregoing criteria, the applicant was awarded two units for French knowledge because his command of French as a second official language was considered not fluent. Had the applicant been properly tested for his language skills, he may have obtained two units for each of his skills, totalling six units. Six units for French would allow him to meet the minimum requirement of 70 points. In my view the officer"s failure to properly assess the applicant"s language skills warrants the Court"s intervention.
[21] Since I have reached the conclusion that the language skills were not properly assessed, I will not comment on the issues of qualifications and suitability since I am satisfied that there is no reviewable error in these areas of assessment as determined by the Visa Officer. I would allow the application and remit the matter back to a different Visa Officer for a redetermination but only for the purpose of reassessing the applicant's language skills.
JUDGE
OTTAWA, Ontario
April 19, 1999
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