Date: 20071113
Docket: IMM-5917-06
Citation: 2007 FC 1178
Toronto, Ontario, November 13,
2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
DILYANA
TODOROVA GIDIKOVA
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult female citizen of Bulgaria. She holds
a Masters Degree in Economics from a Bulgarian university and has applied for
permanent residence in Canada under the Federal Skilled Worker Class as
either a marketing and advertising manager or as an economist.
[2]
The
Applicant was advised by letter dated July 15, 2006 from the Immigration
Section of the Canadian Embassy in Romania that it has been determined that the
Applicant did not meet the requirements for immigration to Canada. That letter
was signed by one S.C. Bailey, Counsellor (Immigration) purporting to advise
that the decision had been made by someone else, one S. Auger who had
interviewed the Applicant on March 14, 2005. No reason was given as to why
Auger did not write the letter or whether the decision was made by Auger at
some other time and reduced to writing, or, if the decision was recorded, or
not, how it was communicated to S.C. Bailey.
[3]
As
the Applicant submitted her application in 2000 when the Immigration Act
was still in effect, she was assessed under both the Immigration Regulations,
1978 and the Immigration and Refugee Protection Regulations, 2002 (IRP
Regulations). Her application was refused under both sets of Regulations.
Under the 1978 Regulations, she failed to meet the minimum one-year
experience requirement as the officer was not persuaded that her prior job
experience met the National Occupation Classification (NOC) criteria. Under
the IRP Regulations, she was four points short of the required
threshold.
[4]
An
Order of this Court permitted the Applicant to be represented by her uncle who
resides in Canada. The
Application memorandum is not as clear or as concise as it might be however two
issues are apparently raised in this application for judicial review:
1. Under the 1978 Regulations,
did the Officer err in finding that the Applicant lacked experience?
2. Under the Immigration and
Refugee Protection Regulations, 2002, did the Officer err in finding that the
Applicant failed to meet the criteria for permanent residence, specifically in
the language and education categories?
[5]
The
first issue does not require detailed consideration by this Court as the
determination under the 1978 Regulations is not seriously contested.
[6]
Under
the 1978 Regulations, skilled worker class applicants are required to
obtain at least one unit for the “occupational factor” under subsection 11(1),
and one unit for “experience” unless they have arranged employment in Canada, which the
Applicant did not have. In her interview notes, Officer S. Auger states that
Marketing and Advertising Managers are not in demand. Therefore, the Applicant
automatically receives 0 points and cannot be admitted on the basis of this
occupation. The Officer also found that the Applicant did not have any
experience as an economist, a finding that does not appear to be contested. As
a result, the Applicant received 0 points for experience as an economist, and
fails to meet the necessary threshold, thus terminating her application.
[7]
As
to the second issue, the Applicant apparently received a score of zero in
respect of English language skills. The Applicant concedes that she has no
French language skills. The Applicant argues that she should have received at
least 6 points or even 8 points out of a maximum of 24 for English language
proficiency. If she received 6 points she would have received at least the
minimum number of total points to meet the requirements for immigration to Canada under the 2002
IRP Regulations.
STANDARD OF
REVIEW
[8]
While
the assessment of an application for permanent residence in the Federal Skilled
Worker Class is a discretionary decision reviewable on a standard of patent
unreasonableness (Kniazeva v. Canada (Minister of Citizenship and
Immigration) (2006), 288 F.T.R. 282 at para. 15); a Visa Officer’s
determination of language proficiency is reviewable on a reasonableness simpliciter
standard (Al-Kassous v. Canada (Minister of Citizenship and Immigration),
2007 FC 541 at para. 12).
2002 IRP REGULATIONS
[9]
Section
79(1) of the 2002 IRP Regulations requires, in respect of language
skills, that a skilled worker must specify whether English or French is
considered to be their first official language and must:
a) have
their proficiency assessed by a designated organization or institution; or
b) provide
other evidence in writing of proficiency in that language.
[10]
The
Applicant apparently chose the latter course and provided:
·
A
high school diploma from the Bulgarian Ministry of Science and Education that
she graduated having successfully completed a number of courses including
English in which she achieved the highest possible score of “excellent – 6”.
·
A
certificate from Pharos School of Languages and Computing, Bulgaria attesting
that the Applicant had successfully completed the full course of studies for
the Upper-Intermediate Level in English.
[11]
The
Applicant was interviewed by S. Auger on March 14, 2005. The notes of that
Officer state in respect of the Applicant’s proficiency in the English language
in the context of the old Immigration Act:
Writes: well. as stated. Did
not test.
Reads: well. as stated did
not test.
Speaks: well.
6 units.
[12]
The
final decision apparently made by S. Auger and communicated by S. C. Bailey
awarded zero points for language proficiency. There are a number of problems
arising from what evidence there is on the record:
·
Why
did Auger not communicate the decision to the Applicant? Under what
circumstances did Bailey enter the picture and write to the Applicant instead
of Auger (?)
·
Did
Auger made the final decision or did Bailey?
·
Why
is there no mention in the CAIPS notes or anywhere else on the Record as to
what consideration, if any, was given to the high school diploma or the
language school certificate? Counsel for the Minister argues that Guideline OP
6 respecting Federal Skilled Workers directs an Officer not to take into
consideration results of any language tests by “non-approved testing
organizations”. To that extent, the Guideline would not be in accord with
section 79(1)(b) that directs that consideration must be given to “other
evidence in writing”. The “other evidence” cannot simply be ignored. It must
be considered. The record here is simply lacking as to what consideration if
any, was given to the written material or, if it was ignored, why?
[13]
In
Bellido v. Canada (MCI), 2005 FC 452 especially at paragraph 11, Justice
Snider of this Court stated that section 79(1) of the IRP Regulations
requires a determination based on written evidence. An assessment must be made
on that evidence and should not simply warrant an award of zero.
The June 1, 2005 CAIPS notes
state that the Officer was not satisfied that the information submitted by the
Applicant was sufficient to meet the “other written evidence” requirement under
subsection 79(1)(b). The Applicant was given another chance to submit language
test results and was informed that if she did not submit test results, she
would be assessed 0 points for language. No test results were submitted.
In Shaker v. Canada (Minister of Citizenship and
Immigration), 2006 FC 185, Justice Beaudry examined a similar fact situation,
where a visa applicant submitted a manuscript and evidence of use of English at
work. The Court held at paragraph 40 that although the test results may be
preferable, the Applicant’s submission should have enabled the Officer to
assess the Applicant’s proficiency. Justice Beaudry went on to find that
although the evidence showed that the Applicant’s English was not spectacular,
it certainly did not warrant a score of zero:
42 While the presence of
many mistakes in the applicant’s manuscript and the relatively poor grades he
obtained while studying English certainly would not warrant the attribution of
full marks, I find that it was patently unreasonable for the Officer to
attribute him a score of zero. The applicant’s evidence reveals that he has
considerable experience working in English, and though his mastery of the
language is certainly less than perfect, he clearly has the ability to
communicate in English at some level.
[14]
It
was unreasonable for the Officer to do what was apparently done in this case.
The Officer was required to assess the qualification based on the material
provided by the Applicant which material arguably might have led the Officer to
award at least 6 points.
[15]
It
is apparent that either the Officer at the time misunderstood what was required
or there was a miscommunication between Officer S. Auger and the person writing
the letter of July 16, 2006, S. C. Bailey. This is a matter that should be
sent back for reassessment by an Officer not being S. Auger or S. C. Bailey who
is to be mindful that even if the precise documents that the Officer would have
liked to receive are not submitted, the Officer has the duty to make an
assessment based on the documents that were submitted.
JUDGMENT
FOR THE REASONS given:
THIS COURT ADJUDGES that:
1. The
application is allowed;
2. The
matter is retained for redetermination by a different Officer not being S. Auger or S.C. Bailey;
3. No
question is to be certified;
4. No
Order to costs.
"Roger
T. Hughes"
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