Date: 20110407
Docket: IMM-3380-10
Citation: 2011
FC 430
Ottawa, Ontario, April 7, 2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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NAJI ARAMOUNI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
This is an
application, pursuant to section 72 of the Immigration and Refugee
Protection Act (IRPA), for judicial review of a March 19, 2010
decision of a visa officer at the Canadian Embassy in Warsaw, Poland denying the application for
permanent residence in Canada as a member of the federal
skilled worker class.
[2]
For the
reasons that follow, I have come to the conclusion that the decision of the
immigration officer, and in particular the award of points to the Applicant
equivalent to an intermediate level for his English proficiency, was
unreasonable given the documents submitted. However, I have found that the
officer committed no breach of natural justice or procedural fairness in coming
to that decision.
1. Facts
[3]
The Applicant,
Mr. Aramouni, is a Lebanese citizen. He submitted an application for permanent
residence in the skilled worker category on March 24, 2004 to the Embassy of
Canada in Damascus. His file was later
transferred for processing to the Embassy in Warsaw, Poland.
[4]
Mr.
Aramouni states that he has a high level of English language proficiency
because he studied at the elementary, secondary, and university level in
English. In addition, he states that some of the training he completed in the
Lebanese army allowed him to perfect his level of English.
[5]
In his
application for permanent residency, however, he did not submit the results of
a linguistic competency test from an organization designated by Citizenship and
Immigration Canada. Instead, he provided various documents supporting his
claims of proficiency, including English language tests he had written in Lebanon.
[6]
In July
2009, his application was rejected because he did not obtain the required
number of points to immigrate to Canada;
the agent assigned him very few points for his competency in English. This was
fewer points for the category of language proficiency than the Applicant
believed he deserved.
[7]
In
November 2009, the decision rejecting his application was returned to a new
agent for re-determination, despite the fact that his application for leave and
judicial review of the July 2009 decision was rejected. Around January 13,
2010, the immigration officer sent a letter to the Applicant explaining that
the information he had submitted was insufficient to determine that his
proficiency in English was as high as he claimed. The agent suggested that the Applicant
provide the results of a linguistic test or additional documents that would
demonstrate that he met the linguistic requirements to immigrate to Canada in the skilled worker class.
[8]
On
February 22, 2010, the embassy received additional documents relating to his
ability in English (rather than the results of an approved linguistic test). On
the basis of the documents submitted, the agent awarded him eight points for
his English proficiency, bringing him to a total of 63 points out of the
required 67. The score of eight corresponds to a medium rather than to a high
level of competency.
[9]
On March
19, 2010, the embassy informed the Applicant by letter that he had not earned a
sufficient number of points to immigrate to Canada.
2. The impugned decision
[10]
The
decision takes the form of a letter which explains to the Applicant that his
application is refused because he does not meet the requirements of the Act and
regulations. Most of the letter is a form letter explaining the relevant
legislation, the selection process and the point system.
[11]
The
information that is personalized to the Applicant includes a table showing the
number of points obtained by the Applicant in comparison to the maximum number
of points available for each category.
Points assessed Maximum
Age 10 10
Education 20 25
Arranged
employment 0 10
Official
language proficiency 8 24
Adaptability 4 10
[12]
Evidently,
the Applicant’s lack of points in the categories of arranged employment,
official language proficiency, and adaptability all contributed to his failure
to gain the required number of points.
[13]
The letter
also stated the following: “Although you stated in your application that you
had high proficiency in English I was able to award you 8 points only based on
the information available on file”.
3. Issues
[14]
The
Applicant contends that the decision is flawed essentially for two reasons. On
the merits, he submits that the officer was unreasonable in awarding only eight
points for his English proficiency. He also argues that the decision is
procedurally deficient, in that the officer failed to consider relevant
evidence when making his decision and did not provide adequate reasons.
4. Analysis
[15]
It is
clear that the assessment of
an application for permanent residence under the federal skilled worker class
is an exercise of a visa officer’s discretion, and as such it attracts a
standard of reasonableness: Roberts v Canada (Minister of Citizenship and Immigration),
2009 FC 518, at para 15; Persaud v Canada (Minister of Citizenship and
Immigration), 2009 FC 206, at para. 22. On the other hand, the duty to give
reasons raises an issue of procedural fairness, and this aspect of the decision
must accordingly be reviewed on the correctness standard like every other
aspects of procedural fairness: Al-Kassous v Canada (Minister of Citizenship
and Immigration), 2007 FC 541, at para 11; Canadian Union of Public
Employees (C.U.P.E.) v Ontario (Minister of Labour), [2003] 1 S.C.R. 539,
at para 100.
[16]
Up until
June 26, 2010, an applicant could establish his language proficiency either by
submitting tests results from a language testing agency designated by the
Respondent, or by providing other evidence in writing of his proficiency in the
English or French language. Section 79 of the Immigration and Refugee
Protection Regulations (IRPR) stated the following:
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Immigration
and Refugee Protection Regulations,
SOR/2002-227
Official
languages
79. (1) A skilled worker must specify in
their application for a permanent resident visa which language — English or
French — is to be considered their first official language in Canada and
which is to be considered their second official language in Canada and must
have their proficiency in those languages assessed by an organization or
institution designated under subsection (3).
Proficiency
in English and French (24 points)
(2) Assessment
points for proficiency in the official languages of Canada shall be awarded
up to a maximum of 24 points based on the benchmarks referred to in Canadian
Language Benchmarks 2000 for the English language and Niveaux de compétence
linguistique canadiens 2006 for the French language, as follows:
(a) for the
ability to speak, listen, read or write with high proficiency
(i) in the
first official language, 4 points for each of those abilities if the skilled
worker's proficiency corresponds to a benchmark of 8 or higher, and
(ii) in the
second official language, 2 points for each of those abilities if the skilled
worker's proficiency corresponds to a benchmark of 8 or higher;
(b) for the
ability to speak, listen, read or write with moderate proficiency
(i) in the
first official language, 2 points for each of those abilities if the skilled
worker's proficiency corresponds to a benchmark of 6 or 7, and
(ii) in the
second official language, 2 points for each of those abilities if the skilled
worker's proficiency corresponds to a benchmark of 6 or 7; and
(c) for the
ability to speak, listen, read or write
(i) with basic
proficiency in either official language, 1 point for each of those abilities,
up to a maximum of 2 points, if the skilled worker's proficiency corresponds
to a benchmark of 4 or 5, and
(ii) with no
proficiency in either official language, 0 points if the skilled worker's
proficiency corresponds to a benchmark of 3 or lower.
Designated
organization
(3) The
Minister may designate organizations or institutions to assess language
proficiency for the purposes of this section and shall, for the purpose of
correlating the results of such an assessment by a particular designated
organization or institution with the benchmarks referred to in subsection
(2), establish the minimum test result required to be awarded for each
ability and each level of proficiency in the course of an assessment of
language proficiency by that organization or institution in order to meet
those benchmarks.
Conclusive
evidence
(4) The results
of an assessment of the language proficiency of a skilled worker by a
designated organization or institution and the correlation of those results
with the benchmarks in accordance with subsection (3) are conclusive evidence
of the skilled worker's proficiency in the official languages of Canada for the purposes of subsections (1) and 76(1).
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Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
Langues
officielles
79. (1) Le
travailleur qualifié indique dans sa demande de visa de résident permanent la
langue — français ou anglais — qui doit être considérée comme sa première
langue officielle au Canada et celle qui doit être considérée comme sa
deuxième langue officielle au Canada et fait évaluer ses compétences
dans ces langues par une institution ou organisation désignée aux termes du
paragraphe (3).
Compétence
en français et en anglais (24 points)
(2) Le
maximum de points d’appréciation attribués pour la compétence du travailleur
qualifié dans les langues officielles du Canada est de 24, calculés d’après
les standards prévus dans les Niveaux de compétence linguistique canadiens
2006, pour le français, et dans le Canadian Language Benchmarks 2000, pour
l’anglais, et selon la grille suivante :
a) pour
l’aptitude à parler, à écouter, à lire ou à écrire à un niveau de compétence
élevé :
(i) dans
la première langue officielle, 4 points pour chaque aptitude si les
compétences du travailleur qualifié correspondent au moins à un niveau 8,
(ii) dans
la seconde langue officielle, 2 points pour chaque aptitude si les
compétences du travailleur qualifié correspondent au moins à un niveau 8;
b) pour
l’aptitude à parler, à écouter, à lire ou à écrire à un niveau de compétence
moyen :
(i) dans
la première langue officielle, 2 points pour chaque aptitude si les
compétences du travailleur qualifié correspondent aux niveaux 6 ou 7,
(ii) dans
la seconde langue officielle, 2 points si les compétences du travailleur
qualifié correspondent aux niveaux 6 ou 7;
c) pour
l’aptitude à parler, à écouter, à lire ou à écrire chacune des langues
officielles :
(i) à
un niveau de compétence de base faible, 1 point par aptitude, à concurrence
de 2 points, si les compétences du travailleur qualifié correspondent aux
niveaux 4 ou 5,
(ii) à
un niveau de compétence de base nul, 0 point si les compétences du
travailleur qualifié correspondent à un niveau 3 ou à un niveau inférieur.
Organisme
désigné
(3) Le
ministre peut désigner les institutions ou organisations chargées d’évaluer
la compétence linguistique pour l’application du présent article et, en vue
d’établir des équivalences entre les résultats de l’évaluation fournis par
une institution ou organisation désignée et les standards mentionnés au
paragraphe (2), il fixe le résultat de test minimal qui doit être attribué
pour chaque aptitude et chaque niveau de compétence lors de l’évaluation de
la compétence linguistique par cette institution ou organisation pour
satisfaire à ces standards.
Preuve
concluante
(4) Les
résultats de l’examen de langue administré par une institution ou
organisation désignée et les équivalences établies en vertu du paragraphe (3)
constituent une preuve concluante de la compétence du travailleur qualifié
dans les langues officielles du Canada pour l’application des paragraphes (1)
et 76(1).
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[17]
The written documentation
submitted by the Applicant included:
·
An affidavit
detailing the Applicant’s knowledge and experience in the English language
thereby exhibiting his fluency;
·
A letter from the
Director of the Lebanese University attesting that the Faculty of Economics and
Business Administration adopts English as the official teaching language and
all the courses attended by the Applicant were lectured in English;
·
An attestation from
the Dean of the Faculty of Business Administration at the Lebanese University certifying that the Applicant successfully
completed the four year Business Administration program;
·
A letter written by
the Applicant to the Surgeon General Lieutenant General James B. Peake M.B.
located in the USA in 2002 further to his employment travel
to the USA;
·
Two English
Comprehension Level (ECL) tests during employment in the Lebanese Armed Forces
administered by the Embassy of the USA where the Applicant obtained a score of
87% and 88% respectively;
·
The result of English
language exam test administered by the Ministry of Defence, where the Applicant
obtained a score of 92%;
·
A certification from
the Ministry of National Defence detailing courses taken by the Applicant
inside and outside of Lebanon. Courses outside of Lebanon include a 6
months Quartermaster Officer Basic Course (QMOBC) in the Ft. Lee,
Virginia, USA;
·
A U.S. Army Diploma
stating that the Applicant successfully completed the Medical Strategic
Leadership Program Course in Fort Sam, Houston,
Texas, USA;
·
A certificate from
the Surgeon General, United
States, recognizing the
honorary affiliation of the Applicant with the U.S. Army Medical Department
Regiment.
[18]
In light of all these
documents, it is difficult to understand how the Officer could come to the conclusion
that the Applicant does not possess more than an intermediate proficiency in
the English language, especially with respect to reading and listening. If the Applicant
has been able to complete successfully a university degree as well as some
training with the U.S. Army, surely he must have a pretty good command of the
English language, at least in its passive dimension (reading and listening).
[19]
The CAIPS notes
submitted by the Officer as an exhibit to his affidavit in this Court do not
really explain why he came to the conclusion that the documents filed by the Applicant
are insufficient to demonstrate a high degree of proficiency in English. After
reviewing the documents submitted, he stated the following:
…transcript
from Lebanese University and high school do not provide any details of his
achievements in English, no documents for elementary/intermediate education on
file, English language test certificates provide only a numerical result of
abilities but no indication of the scale or level of proficiency, certificates
from course in U.S. and ones given by U.S. organizations do not provided [sic]
any information regarding subject s [sic] abilities in English. Evidence does
not support claimed abilities.
[20]
In the absence of a
strict requirement that language proficiency be established exclusively on the
basis of a pre-approved test, (and there was no such requirement at the time
Mr. Aramouni filed his application), one fails to see what better proof of his
high proficiency in reading and listening English he could have submitted. Of
course, university transcripts and certificates for professional courses would
not provide information as to the language skills of a student; nevertheless,
it is a safe assumption that successful completion of a university degree and
of a training program in a foreign country cannot be but clear and convincing
evidence of one’s extensive grasp of the language into which the courses and
instructions were given.
[21]
A quick perusal of
the reading and listening benchmarks found in the Canadian Language
Benchmarks 2000, against which officers are to assess the proficiency
levels of applicants pursuant to the Operational Manual OP6 - Federal
Skilled Workers, convinces me that a university graduate who has followed
all his courses in English must be understood to have a pretty good grasp of
that language and to meet Benchmark 8, described as “fluent intermediate
proficiency”, at least with respect to reading and listening. Despite the
deference that this Court must show in these matters to the officers on the
ground, I am of the view that the decision is not one that falls “within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir v New
Brunswick, 2008 SCC 9, at para 47.
[22]
Having concluded that
the decision is unreasonable, there is no need to determine whether it is also
flawed for reasons of procedural fairness. I will, nevertheless, venture the
following remarks. First, I do not think it can be said that the immigration
officer did not consider all the evidence that was submitted. The CAIPS notes,
which form part of the reasons for the decision – see Ogunfowora v Canada (Minister of Citizenship and Immigration), 2007 FC 471, at para 60; Kalra v Canada (Minister of Citizenship and Immigration), 2003 FC 941, at para 15 – clearly
indicate that all the evidence submitted was indeed considered. The Officer may
not have drawn a reasonable decision from that evidence, but his decision
cannot be impeached on the basis that he disregarded relevant portions of the
documentation that was filed by the Applicant.
[23]
As for the argument
that the Officer failed to give adequate reasons for his decision, it is
without merit. First of all, I agree with the Respondent that a judicial review
applicant cannot contest the sufficiency of reasons offered by a decision-maker
without first having requested additional reasons from that officer or tribunal.
This rule, which appears to originate from Marine Atlantic Inc. v Canadian
Merchant Service Guild, [2000] FCJ No 1217, has
been cited with approval in many subsequent cases, including Tran v Canada
(Minister of Public Safety and Emergency Preparedness), 2009 FC 1078, at
para 23 and Hayama v Canada (Minister of Citizenship and Immigration),
2003 FC 1305, at paras 14-15. Under this rule, an applicant cannot contest the
sufficiency of the reasons without having first requested additional reasons
from the officer.
[24]
Moreover, this is not
a case where the reasons are insufficient to allow the Applicant to know why his
claim was rejected. Contrary to other cases where the decision has been found
lacking because the decision-maker merely stated a conclusion without providing
any discussion of the arguments put forward by the Applicant, the CAIPS notes
in the case at bar do provide a semblance of reasoning. The real problem is not
so much that the reasons are inadequate in the sense of being too cryptic, but
that they fail to provide a convincing explanation as to why the documents
submitted by the Applicant do not demonstrate a high degree of proficiency in
the English language. This goes to the merit of the decision, as opposed to a
deficiency of a procedural nature.
[25]
For all the foregoing
reasons, I find that this application for judicial review ought to be granted. No
question of general importance has been raised by counsel, and none will be
certified.
ORDER
THIS COURT
ORDERS THAT this application for judicial review is granted.
“Yves de Montigny”
__________________________
Judge
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