Date: 19990608
Docket: IMM-2816-98
Between :
LIN WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE REGISTRAR OF CANADIAN CITIZENSHIP
Respondents
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of the decision of Ian Thomson, Consul (Immigration), Canadian Consulate General in Sydney, Australia, dated May 4, 1998, in which he determined the applicant did not meet the requirements for immigration to Canada, having obtained insufficient units of assessment.
[2] With respect to the factual basis of what occurred at the interview, the applicant first submits that his evidence should be accepted as being more reliable than the evidence of the visa officer. The applicant notes that the visa officer had an incomplete recollection of what transpired at the interview, while he had taken notes between three and ten days after the interview. The respondent asserts that the visa officer's notes should be given weight as his handwritten notes were taken at the interview and not later, as the applicant's notes were. In addition, the respondent argues that it was open to the visa officer to find that the applicant did not provide a substantive reply.
[3] Upon reviewing all the relevant notes and affidavits, as well as the transcript of the cross-examination of the visa officer, I do not find that this matter raises any serious question of credibility.
[4] The applicant also submits that the visa officer's assessment of his language ability in the areas of reading and writing was distorted by the difficulty the visa officer perceived with respect to his oral communication. The applicant submits that his abilities do not need to be flawless - merely fluent. In my view, the argument is without merit, as a visa officer is in a much better position than the Court to assess the quality of the language of an applicant and as there is no evidence that the visa officer required flawlessness from the applicant. The visa officer mentions in his affidavit that the applicant was "at times . . . almost incomprehensible. As a result, I frequently had to stop and rephrase my questions." The visa officer noted that "Mr. Wang's ability to speak and understand spoken English was quite limited." However, the visa officer assessed Mr. Wang's writing abilities as being on the "lower edge of writing English well". He finally notes that "Speaking English with difficulty, reading English well and writing English well scores 4 language points which in turn convert into 2 units of assessment under the language category." It therefore appears to me that the visa officer did take into account the fact that the applicant read and wrote English well, contrary to what is alleged by the applicant.
[5] The applicant further submits that the visa officer was engaging in double counting, given the emphasis on language in his notes and the complete absence of any negative comment on personal suitability and given the applicant's evidence that the visa officer advised him at the interview that his application was being refused mainly because of his language skills. As noted by the respondent, there is no evidence that the applicant's language abilities played any part in the assessment of personal suitability. It is true that the visa officer made several references to the applicant's perceived difficulties in the English language but this does not mean that in the absence of negative personal suitability comments the visa officer took the applicant's difficulties into account in assessing his personal suitability. The visa officer explains in his affidavit how he arrived at the calculation for personal suitability.
[6] The applicant also argues that if the visa officer was concerned about his personal suitability, he owed him a duty of fairness to advise him so that he could respond to that concern. To that, the respondent responds that the applicant is putting the threshold for procedural fairness much higher than it has ever been placed for what has been described as an administrative assessment. The respondent submits the law is clear that knowledge of Canada is a reasonable tool to use to assess personal suitability and that there is no obligation on the visa officer to spell this out to the applicant. I consider it was perfectly reasonable for the visa officer to take into account the applicant's knowledge of Canada in assessing his personal suitability. In my view, it was also reasonable for the visa officer to question the applicant the way he did and it was evident that this type of question went towards his personal suitability.
[7] Finally, the applicant's other arguments are all related to pure questions of fact which were entirely within the mandate of a visa officer to resolve (see Lim v. M.E.I. (1991), 12 Imm.L.R. (2d) 161 at 163). Without necessarily endorsing the visa officer's analysis of the facts in its entirety, I am of the opinion that the discretionary decision of the visa officer should not be interfered with (see Chiu Chee To v. M.E.I. (May 22, 1996), A-172-93 and [1982] 2 S.C.R. 1">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 1).
[8] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
June 8, 1999
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