Docket: IMM-6206-10
Citation: 2011 FC 1246
Ottawa, Ontario, November 11, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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RAJWINDER MEHMI
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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 JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the
decision of the Consul, Immigration (Consul) of the Canadian Consulate General,
Chandigarh, India, dated 22 September 2010 (Decision), which refused the
Applicant’s application for a work permit under section 112 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations).
BACKGROUND
[2]
The
Applicant is a citizen of India. On 20 November 2006 she signed a “Live-in
Caregiver Contract” with her employer, Rita Mehmi, who lives in Brampton, Ontario. She was to
care for a two-year-old child and would be responsible for supervising,
bathing, dressing, and feeding the child as well as planning, preparing, and
serving meals. In 2006, Service Canada provided a Labour Market Opinion (LMO)
on the contract. Having been provided with the LMO, the Applicant applied to
the Consulate in Chandigarh for a work permit under the Live-in Caregiver
Program (LCP). The consulate received her application (Application) on 22
January 2007.
[3]
On
22 September 2010, the Consul interviewed the Applicant to assess her
proficiency in English pursuant to subsection 112(d) of the Regulations. That
subsection requires live-in caregivers to have “the ability to speak, read, and
listen to English or French at a level sufficient to communicate effectively in
an unsupervised setting” in order to be granted a work permit. The Consul
informed the Applicant that the interview was to assess her qualifications.
[4]
During
the interview, the Consul asked several questions, some of which were related
to the care of children, some to the Applicant’s personal situation, and some
to her education and language training. The Applicant was able to answer some
questions but not others and sometimes gave answers that were not relevant to
the questions asked. The Consul ended the interview when it became apparent to
him that the Applicant could not understand the questions put to her.
[5]
Also
on 22 September 2010, the Consul reviewed the Application in light of the
Interview and the documents the Applicant had provided, including a report of
her grades from Guru Nanak Dev University. He decided
that the Applicant did not fulfill the requirements of subsection 112(d) and
denied the Application. She was notified of the Decision by a letter dated 22
September 2010.
DECISION
UNDER REVIEW
[6]
The
Decision under review in this application consists of the letter provided to
the Applicant and the Consul’s CAIPS notes.
[7]
The
Consul was not satisfied that the Applicant was sufficiently proficient in
English to carry out the duties of the position. He noted that the Applicant
had scored 35/100 in her studies in English at Guru Nanak Dev University and that she
said she had studied English for three months and was still taking lessons. He
also found that the Applicant’s speaking ability at the Interview was poor. The
Consul denied the Application because he was not satisfied that the Applicant
could “care for small children in [an] unsupervised environment and ensure
their safety” as required under subsection 112(d) of the Regulations.
ISSUES
[8]
The
Applicant raises the following issues in this application:
a.
Whether
her right to procedural fairness was breached by the Consul’s use of an
interview to assess her language skills;
b.
Whether
the Consul’s determination that she was not sufficiently proficient in English
was reasonable
STATUTORY
PROVISIONS
[9]
The
following provision of the Act is applicable in these proceedings:
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11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
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11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
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[10]
The
following provisions of the Regulations are also applicable in these
proceedings:
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Live-in caregiver class
110. The live-in caregiver class is
prescribed as a class of foreign nationals who may become permanent residents
on the basis of the requirements of this Division.
Processing
111. A foreign national who seeks to enter Canada as a live-in
caregiver must make an application for a work permit in accordance with Part
11 and apply for a temporary resident visa if such a visa is required by Part
9.
Work permits – requirements
112. A work permit shall not be issued to a
foreign national who seeks to enter Canada as a live-in caregiver unless they
(d) have the ability to speak, read and listen to
English or French at a level sufficient to communicate effectively in an
unsupervised setting;
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Catégorie des aides familiaux
110. La catégorie
des aides familiaux est une catégorie réglementaire d’étrangers qui peuvent
devenir résidents permanents, sur le fondement des exigences prévues à la
présente section.
Traitement
111. L’étranger
qui cherche à entrer au Canada à titre d’aide familial fait une demande
de permis de travail
conformément à la partie 11, ainsi qu’une demande de visa de résident
temporaire si ce visa est requis par la partie 9.
Permis de travail:
Exigences
112. Le permis de
travail ne peut être délivré à l’étranger qui cherche à entrer au Canada au
titre de la catégorie des aides familiaux que si l’étranger se conforme aux
exigences suivantes:
d) il peut
parler, lire et écouter l’anglais ou le français suffisamment pour communiquer
de façon efficace dans une situation non supervisée;
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STANDARD OF REVIEW
[11]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9,
[2009] SCJ No. 9, held that a standard of review analysis need not be conducted
in every instance. Instead, where the standard of review applicable to a
particular question before the court is well-settled by past jurisprudence, the
reviewing court may adopt that standard of review. Only where this search
proves fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[12]
In de
Luna v Canada (Minister of Citizenship and Immigration) 2010 FC 726, [2010]
FCJ No. 882, Justice Leonard Mandamin considered whether the applicant’s right
to procedural fairness was breached by the use of a Speaking Proficiency in
English Assessment Knowledge (SPEAK) test rather than an interview to assess
her language abilities. He concluded that it was not. In Vila v Canada
(Minister of Citizenship and Immigration 2008 FC 627, [2008] FCJ No. 823,
Justice John O’Keefe found that an applicant’s right to procedural fairness was
breached when the officer evaluating her application under the LCP failed to
consider written documentation on the applicant’s English proficiency. Further,
in Giacca v Canada (Minister of Citizenship and
Immigration),
[2001] FCJ No. 186, 200 FTR 107, Justice Sandra Simpson found that there
was a breach of natural justice when the speakers in a language testing booth
malfunctioned during an interview to assess the applicant’s language abilities.
These cases show that the method of evaluating applicants language abilities is
an issue of procedural fairness (see also Kumar v Canada (Minister of
Citizenship and Immigration) 2011 FC 770, [2011] FCJ No. 970 and Hassani
v Canada (Minister of Citizenship and Immigration) 2006 FC 1283, [2006] FCJ
No. 1597 at paragraphs 28 and 34.) Questions of procedural fairness are
evaluated on the standard of correctness (Canada (Minister of Citizenship and
Immigration) v Khosa
2009 SCC 12, [2009] 1 S.C.R. 339). The standard of review with respect to the
first issue in this case is correctness.
[13]
In Dunsmuir,
above, the Supreme
Court of Canada held at paragraph 50:
When applying the correctness
standard, a reviewing court will not show deference to the decision maker’s
reasoning process; it will rather undertake its own analysis of the
question. The analysis will bring the court to decide whether it agrees
with the determination of the decision maker; if not, the court will substitute
its own view and provide the correct answer. From the outset, the court must
ask whether the tribunal’s decision was correct.
[14]
With
respect to the second issue, in Kumar, above, Justice David Near found
that an officer’s decision on the language skills of an applicant for permanent
residence as a skilled worker was reasonableness. Using the pre-Dunsmuir pragmatic
and functional approach, Justice Max Teitelbaum found in Al-Kassous v Canada
(Minister of Citizenship and Immigration) 2007 FC 541, [2007] FCJ No. 731
that the standard of review applicable to an officer’s assessment of an
applicant’s language skills was reasonableness simpliciter. Further, in Jhattu
v Canada (Minister of
Citizenship and Immigration) 2005 FC 853, [2005] FCJ No. 1058, Justice
O’Keefe found that the standard of review with respect to an officer’s decision
on a work-permit application was reasonableness simpliciter. The
Applicant in this case challenges the Consul’s assessment of her language
skills, so the standard of review with respect to the second issue is reasonableness.
[15]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Khosa, above, at paragraph 59. Put another way,
the Court should intervene only if the Decision was unreasonable in the sense
that it falls outside the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
The Officer
Breached the Applicant’s Right to Procedural Fairness
[16]
The
Applicant argues that the Consul breached her right to procedural fairness by
relying only on an interview to assess her language skills. This breached her
right to procedural fairness because oral interviews are subjective,
unscientific, and unreliable. Since an oral interview is unreliable, it is a
breach of procedural fairness per se.
[17]
The
Applicant notes that CIC’s OP-6 Federal Skilled Workers manual for
applications under the Federal Skilled Workers Program directs that officers
should use objective measures to test language abilities. Although the OP-14 Processing
Applicants for the Live-in Caregiver Program manual directs that officers
should use an interview to assess language skills when they are unsure about an
applicant’s ability, the Applicant says that she should have been able to
participate in a standardized language test, such as the SPEAK test. The
Applicant also notes that office specific guidelines for the Canadian Embassy
in Manila direct that
applicants under the LCP should take the IELTS, a standardized English test. The
Applicant was denied procedural fairness because she was not given the chance
to take a standardized test.
[18]
As
noted above, Justice
Mandamin held in
de Luna that the applicant in that case was not
denied procedural fairness because she had been able to take a SPEAK test. The
Applicant says this means that her right to procedural fairness was breached because
she only had an oral interview and not a standardized test.
The Consul’s
Decision was Unreasonable
[19]
The Applicant
also argues that the Consul’s decision that she did not have the required
language skills was unreasonable because it was based on irrelevant evidence
and a standard that was too high. She says that the standard applied in the
language evaluation should be calibrated by the purpose of section 112 of the
Regulations. The purpose of that section is to ensure that live-in caregivers
have the skills required to care for people in Canada. Since the
Applicant will be caring for children, the assessment of her language skills
should have been carried out with the activities involved in caring for
children in mind. When the Consul assessed her language ability on the basis of
irrelevant questions, such as her marital status, where she learned to speak
English, and where she was living at the time, he committed an error.
[20]
The
Applicant says that her language ability should have been assessed as more than
sufficient because she correctly answered ten of the eleven questions that were
related to childcare. The questions she was unable to answer correctly were
unrelated to her ability to care for children, so they should not have entered
the Consul’s assessment. By requiring the Applicant to answer unrelated
questions correctly, the Consul set a standard that was too high. The Decision
should be set aside as unreasonable because the assessment of the Applicant’s
language ability was on a standard that was too high in relation to the purpose
behind section 112.
The Respondent
There was no Breach of the
Applicant’s Right to Procedural Fairness
[21]
The
Respondent says that the Applicant’s right to procedural fairness was not
breached by the Consul’s reliance on an oral interview. The OP-6 Federal
Skilled Worker manual is not applicable to applications under the LCP.
Although a standardized test is an appropriate way to assess language ability
for the Federal Skilled Worker Program, this does not mean it is an appropriate
way to assess language ability under the LCP.
[22]
The
Respondent notes that the OP-14 Processing Applicants for the Live-in
Caregiver Program manual clearly says that there should be an interview to
assess language abilities where needed. Where the Minister has chosen the means
of assessment – in the case of the LCP, an interview when needed – the Court
should not interfere with that choice.
[23]
According
to the Respondent, de Luna, above, stands only for the
proposition that the SPEAK test is one way of ensuring procedural fairness in the
assessment of language proficiency. In that case, the issue was whether the
applicant had an opportunity to respond to the decision-maker’s concerns about her
language ability. Justice Mandamin held that the SPEAK test gave her that
opportunity. In this case, the Applicant was present in the interview room with
the Consul and had the chance to address any concerns he might have had. She
had the opportunity to suggest an alternate testing method at that time, but
did not take it. Further, the oral interview fairly assessed her English
proficiency. The Decision should stand because there was no breach of
procedural fairness.
The
Conclusion That the Applicant was Not Sufficiently Proficient was Reasonable
[24]
The
Consul’s conclusion that the Applicant did not meet the requirement of
subsection 112(d) was reasonable, even though she disagrees with it. This conclusion
is one of fact and deserves deference. The Applicant gave a number of incorrect
responses to the Consul’s questions in the Interview and it was reasonable for
him to conclude as he did based on those responses.
[25]
Since
the decision was reasonable and there was no breach of procedural fairness, the
Consul’s Decision should stand.
ANALYSIS
[26]
There
is no evidence before the Court that the Consul’s assessment of the Applicant’s
proficiency was either inaccurate or arrived at unfairly. The Applicant’s
position is that the Consul’s failure to invite or require the Applicant to
take a standardized test was, per se, unfair. She points to the practices
adopted in Manila, and the
uses made there of the SPEAK test.
[27]
It
seems to me that, in some situations, a standardized test may well be required
in order to ensure procedural fairness, but I cannot say that this will always
be the case. The Applicant has provided no evidence that a standardized test is
required to ascertain language proficiency in all instances and/or that it is
any better as a measuring tool than a face-to-face oral interview. It is
difficult for the Court to assess whether it would have made any difference in
this case because the Applicant has provided no evidence that the Consul’s
assessment was inaccurate or that she was not given a fair opportunity to
demonstrate her language skills. She merely wants the Court to decide in an
abstract way that procedural unfairness occurred because the Consul relied upon
her own interview to assess the Applicant’s proficiency in English.
[28]
The
onus was on the Applicant to provide whatever information she thought was
necessary to convince the Consul that she qualified under the live-in-caregiver
program. See Arumugam v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No. 445 at paragraph 29; Ling v Canada (Minister of
Citizenship and Immigration), [1997] FCJ No 1030 at paragraph 5; and Hajariwala
v Canada (Minister of
Employment and Immigration), [1989] 2 FC 79, [1998] FCJ No 1021. The
Consul felt he could not proceed with the interview “without providing possible
answers with in the question itself” because the Applicant’s English was so
poor.
[29]
There
is simply nothing before the Court to suggest that, on the facts of this case,
the Applicant was not given a fair and full opportunity to demonstrate the level
of her proficiency in English or that the Consul got it wrong. Presumably, if
the Applicant felt she had not been given a fair opportunity, she would have
provided evidence to that effect to the Court.
[30]
There
is no statutory or case-law authority to my knowledge which says that
procedural fairness requires, in every case, a standardized language test. In
some instances, it would be pointless. OP-14 directs in these situations that
“If an officer has reason to doubt an applicant’s language ability, then the
officer should interview the applicant.” This appears to recognize that a
face-to-face interview is an acceptable procedure in these circumstances. I do
not say that it will suffice in all circumstances. A standardized test may be
the only fair way of assessing the ability of some applicants. Much will depend
upon the circumstances of each case and whether the interview has provided a
particular applicant with a fair opportunity to demonstrate their proficiency
and the officers ability to make an assessment from what transpires at the
interview. I have no evidence of procedural unfairness on the facts of this
case. The Consul felt that the language problem was so bad that she could not
conduct a meaningful interview. The Applicant does not say that the Officer was
wrong in this regard.
[31]
On
the Applicant’s second point, it is clear to me that the Consul does conduct a purposive
interview and analysis. As his conclusions make clear, he focused on
ascertaining whether the Applicant would be able to care for small children in
an unsupervised environment and ensure their safety. He asked general questions
to test the Applicant’s general ability to communicate in English, as well as
more specific questions about caring for children. As OP-14 makes clear,
applicants must be able to do more than deal with the internal situation. They
must also be able to:
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Respond
to emergency situations by contacting a doctor, ambulance, police or fire
department;
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Read
the labels on medication;
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Answer
the telephone and the door; and
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Communicate
with others outside the home, such as schools, stores or other institutions.
[32]
The
Applicant may disagree with the Consul’s assessment, but there is nothing
before the Court to suggest it is either unreasonable or incorrect. The Court
cannot re-weigh evidence and must allow officers to exercise the discretion
that Parliament has allocated to them. See Suresh v Canada (Minister of
Citizenship and Immigration) 2002 SCC 1, [2002] SCJ No. 3 at paragraphs 29,
34, and 37 and Aoanan v Canada (Minister of
Citizenship and Immigration) 2009 FC 734 at paragraph 42.
[33]
Counsel
agree that there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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