Toronto, Ontario, Friday, March 31, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The present Application concerns the decision of a Visa Officer dated April 20, 2005, in which the Applicant's application for permanent residence as a member of the skilled federal worker class was refused.
I. Factual background
[2] It is agreed that since the Applicant applied before January 1, 2002, he was eligible to be assessed under the criteria of the Immigration Regulations, 1978 and the Immigration and Refugee Protection Regulations (IRP Regulations). The score awarded to the Applicant under the Immigration Regulations, 1978 was 68, just shy of the required minimum of 70 points. Under the IRP Regulations, the Applicant received a score of 63, less than the required minimum of 67 points. In the present Application, the Applicant takes issue with the Visa Officer's assessment of his English language proficiency under the IRP Regulations.
[3] Section 79 of the IRP Regulations prescribes the manner in which proficiency in English and French is determined and the relevant portions read as follows:
| Proficiency in English and French (20 points) 79. (1) A skilled worker must specify in their application for a permanent resident visa which of 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 (a) have their proficiency in those languages assessed by an organization or institution designated under subsection (3); or (b) provide other evidence in writing of their proficiency in those languages. [...] 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. [...] |
Compétence en français et en anglais (20 points) 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 : a) soit fait évaluer ses compétences dans ces langues par une institution ou organisation désignée aux termes du paragraphe (3); b) soit fournit une autre preuve écrite de sa compétence dans ces langues. [...] 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. [...]
|
[4] Rather than have his language proficiency assessed as provided by s.79(1)(a), the Applicant opted to submit written evidence of his proficiency in the English language under s.79(1)(b). The Applicant was notified in a letter dated July 7, 2004, that the written submissions he provided did not support the level of proficiency he claimed in his application for permanent residency, and that further written submissions would not be accepted. However, he was given the option of submitting language test results from an approved organization within 180 days of the date of the letter. The Applicant was also informed that his failure to submit the language test results would result in his application being assessed on the basis of the information on file at that time, namely, the written submissions that had been found to be inadequate. The Applicant did not provide the test results requested.
[5] Nevertheless, in April 2005, the Applicant attended an immigration interview in which the Visa Officer administered a "writing test", and found his level of proficiency in English to be at a "basic" level. The Visa Officer subsequently issued the negative decision that is the subject of the present Application.
II. Issues for determination
[6] During the course of oral argument it was agreed that the process of evaluating the Applicant's application did not end when the Applicant submitted the inadequate written evidence, but continued until after the interview at which time a final decision was made. It is clear that the Visa Officer intended to give the Applicant all opportunity to prove his proficiency. However, in this allowance, the Visa Officer is still bound by the provisions of s.79. Therefore, the course of conduct followed gives rise to two issues for determination in the present Application.
A. Did precluding the Applicant from submitting further written evidence amount to an error in law or denial of due process?
[7] Counsel for the Applicant argues that, in light of the fact that the final decision was not made until after the interview, denying the Applicant the opportunity to submit further written evidence amounts to an error of law and denial of due process because the IRP Regulations clearly provide the Applicant with the option of either submitting to the prescribed test or submitting written evidence. Counsel for the Applicant contends that, had the Applicant been given the opportunity to submit further written evidence, he could have provided other documents which would have corroborated his proficiency in the English language.
[8] I agree with Counsel for the Applicant.
[9] Although the written evidence initially submitted by the Applicant was found to be unacceptable, the Visa Officer provided the Applicant with a second chance to meet the requirements of s.79; that is, he could either submit to the prescribed test or submit written evidence. The fact that the Applicant was precluded from exercising one of the options in this second attempt, in my opinion, is a denial of due process.
B. Did the Visa Officer's administration of the "writing test" amount to an error in law?
[10] Counsel for the Applicant argues that, while it was permissible under the Immigration Regulations, 1978, the IRP Regulations does not grant the Visa Officer the authority to administer her own "writing test" in lieu of the prescribed test. Consequently, the Visa Officer was obliged to determine the Applicant's proficiency in English based only on the written evidence on file at that time.
[11] In response, the Respondent argues that the Applicant was not prejudiced by the Visa Officer's "writing test", given that the written evidence on file at that time did not support the proficiency levels claimed by the Applicant, and, if anything, the "writing test" served to benefit the Applicant.
[12] I reject the Respondent's argument and agree with the Applicant. The Visa Officer's CAIPS notes indicate that she took the "writing test" into consideration despite the fact that she did not have the statutory authority to do so. The Visa Officer is not a "designated organization" as referred to in s.79(3) of the IRP Regulations and, in my opinion, she should have made the determination regarding the Applicant's proficiency in English as prescribed in the IRP Regulations; that is, by using the written evidence previously submitted by the Applicant, and by not taking into consideration an extraneous factor, namely, the "writing test".
III. Conclusion
[13] For the reasons provided, I find that the decision made by the Visa Officer was unreasonable, which it is agreed is the standard of review.
ORDER
Accordingly, I set aside the Visa Officer's decision, and refer the matter back to another visa officer for redetermination.
"Douglas R. Campbell"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4049-05
STYLE OF CAUSE: MD REAZUL ISLAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 29, 2006
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
APPEARANCES:
Mr. Dan Miller FOR THE APPLICANT
Ms. Leanne Briscoe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Dan Miller
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT