Date: 20000509
Docket: IMM-1640-99
BETWEEN:
PEDRAM PILTAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review of a negative decision of a visa officer based at the Canadian Embassy in Damascus, Syria. The applicant seeks judicial review of the refusal on the basis that the visa officer erred in evaluating his proficiency in the English language and erred in evaluating his personal suitability. The applicant received no points for English language ability (of a maximum of 15 possible) and five points for personal suitability (of a maximum ten points).
[2] The applicant has filed an affidavit setting out his account of the interview and his specific recollections. The respondent has filed an affidavit of a colleague of the visa offer because the original visa officer has since retired. The respondent's affidavit is of no help to the Court as it only points to information in the record and does not contain any relevant first-hand evidence. As indicated by the Court of Appeal in Wang v. Canada (M.C.I.),[1] affidavits from third-party visa officers who are not personally familiar with a case do not qualify as affidavits confined to facts within the personal knowledge of the deponent, and they may not be relied upon even where the original visa officer is said to be unavailable.
[3] The portion of the Regulations relevant to the award of points for English/French langauge ability is at Factor 8 in Schedule I to the Regulations:
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(1) For the first official language, whether English or French, as stated by the person, credits shall be awarded according to the level of proficiency in each of the following abilities, namely, speaking, reading and writing, as follows:
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(1) Pour la langue que la personne indique comme sa premičre langue officielle, le franēais ou l'anglais, selon son niveau de compétence ą l'égard de chacune des capacités suivantes : l'expression orale, la lecture et l'écriture, des crédits sont attribués de la faēon suivante: |
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(a) for an ability to speak, read or write fluently, three credits shall be awarded for each ability; |
a) la capacité de parler, de lire ou d'écrire couramment, trois crédits sont attribués pour chaque capacité; |
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(b) for an ability to speak, read or write well but not fluently, two credits shall be awarded for each ability; |
b) la capacité de parler, de lire ou d'écrire correctement mais pas couramment, deux crédits sont attribués pour chaque capacité; |
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(c) for an ability to speak, read or write with difficulty, no credits shall be awarded for that ability. |
c) la capacité de parler, de lire ou d'écrire difficilement, aucun crédit n'est attribué pour cette capacité. |
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(2) For the second official language, whether English or French, as stated by the person, credits shall be awarded according to the level of proficiency in each of the following abilities, namely, speaking, reading and writing, as follows:
(a) for an ability to speak, read or write fluently, two credits shall be awarded for each ability;
(b) for an ability to speak, read or write well but not fluently, one credit shall be awarded for each ability; and
(c) for an ability to speak, read or write with difficulty, no credits shall be awarded for that ability. |
(2) Pour la langue que la personne indique comme sa seconde langue officielle, le franēais ou l'anglais, selon le niveau de compétence pour chacune des capacités suivantes : l'expression orale, la lecture et l'écriture, des crédits sont attribués de la faēon suivante :
a) la capacité de parler, de lire ou d'écrire couramment, deux crédits sont attribués pour chaque capacité;
b) la capacité de parler, de lire ou d'écrire correctement mais pas couramment, un crédit est attribué pour chaque capacité;
c) la capacité de parler, de lire ou d'écrire difficilement, aucun crédit n'est attribué pour cette capacité. |
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(3) Units of assessment shall be awarded on the basis of the total number of credits awarded under subsections (1) and (2) as follows: |
(3) Des points d'appréciation sont attribués sur la base du nombre total de crédits obtenus selon les paragraphes (1) et (2), d'aprčs le barčme suivant : |
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(a) for zero credits or one credit, zero units; |
a) zéro ou un crédit, aucun point; |
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(b) for two to five credits, two units; and |
b) de deux ą cinq crédits, deux points; |
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(c) for six or more credits, one unit for each credit. |
c) six crédits ou plus, un point par crédit. |
[4] It is my opinion that the visa officer's finding on the applicant's English language ability is perverse. I reach this conclusion for a number of reasons. First, the interview was conducted in English. From CAIPS notes made at the time the visa officer appears not to have been satisfied with the ability of the applicant in speaking, reading and writing English. The CAIPS notes state as follows:
- "With difficulty" best describes his ability in speak, write and read
- I had to speak slowly and repeat questions in order to get any response
- not able to express himself well or get the words out without some difficulty
- Reading was just a series of mispronounced words and he had no idea of meaning of para he read
- Written piece on file
In response the applicant by affidavit notes that the interview was in English, without an interpreter, that he responded to a variety of questions asked by the visa officer and had no problems comprehending and communicating in English.
[5] Second, the record contains the hand-written sample referred to in the CAIPS notes, which demonstrates a measure of some proficiency in writing English. Third, the applicant was asked by the visa officer at the interview to respond in writing to a question written in cursive. When the visa officer was informed that the applicant had difficulty with cursive script, a printed alternative was not offered, but the officer read the question and the applicant responded in written English, with some proficiency. Fourth, the respondent chose to cross-examine the applicant on his affidavit, by long distance telephone, and in English. No interpretation was offered. Yet the transcript reveals little difficulty for the applicant, or for counsel for the respondent in understanding questions and answers. Admittedly this was a few months after the interview of the applicant in Damascus, but the time interval would hardly have facilitated a major improvement in speaking and comprehending English.
[6] It is my opinion that the visa officer also erred in the manner of evaluation of the applicant's personal suitability. For this factor the Regulations require an evaluation of the applicant's ability to settle and become established in Canada, to be assessed by a score between zero and ten points, based upon "the person's adaptability, motivation, initiative, resourcefulness and other similar qualities". The assessment is a discretionary decision of the visa officer, but it must be exercised within the bounds set out in the Regulation. The jurisprudence of this Court also holds that visa officers cannot "double count" elements that have already been considered in relation to other factors of assessment. Ability with English or French (Factor 8) can only be reconsidered in evaluating personal suitability (Factor 9), if it is probative of the potential immigrant's "adaptability, motivation, initiative, resourcefulness and other similar qualities." For example, it may be evidence of motivation and initiative for an applicant to make the effort to improve his ability in English or in French.
[7] The CAIPS notes show the basis for the visa officer's award of five points:
- Average type with nothing that would recommend him out of the ordinary
- No evidence of adaptability as he has never travelled or lived abroad
- Some initiative shown in trying to explore job opps or make advanced contact with firms in his area of expertise
- Pleasant type but without better eng and exp he will not succeed
For the applicant it is urged this assessment was based on considerations not within those set out in the Regulations, e.g., looking for some extra-ordinary quality, and negative assessment in the absence of travel abroad. Apart from those references, in my opinion, the visa officer "double counted" by considering "eng", that is, the applicant's English ability, and "exp", his experience, in the evaluation of personal suitability. These were considered in the same way that they had been considered as separate factors, not as indications of "adaptability, motivation, initiative, resourcefulness [or] other similar qualities", as the regulations in Schedule I Factor 9 require.
[8] It is my opinion that this application for judicial review should be granted, and that the applicant's application for a visa should be reassessed by another visa officer. Thus an Order, issued orally at the conclusion of the hearing and subsequently confirmed in writing, so provides, for the reasons here set out, which confirm those rendered orally at the conclusion of the hearing.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
May 9, 2000
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1640-99
STYLE OF CAUSE: PEDRAM PILTAM v. MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: MAY-5, 2000
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MACKAY DATED: MAY 9, 2000
APPEARANCES:
Mr. Irvin ShermanFOR THE APPLICANT
Mr. Stephen GoldFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Martinello & Associates
Toronto, OntarioFOR THE APPLICANT
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada