Date: 20000928
Docket: IMM-2158-99
Ottawa, Ontario, this 28th day of September, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
SUBHASREE KRISHNAN KUTTY
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of Ron Molsberry ("visa officer") rendered on March 9, 1999, wherein the application for permanent residence in Canada was denied.
[2] The applicant, a citizen of India, submitted an application for immigrant visas for herself, her husband and their two small children under the independent category on April 21, 1997 and requested assessment in the occupation of Executive Secretary (CCDO 4111-111) and/or any other occupation in which her qualifications and experience might indicate qualification.
[3] On February 16, 1999 the applicant and her husband attended at a personal interview at the Canadian Embassy in Abu Dhabi, UAE. The visa officer questioned the applicant about her background, including her education, work experience, and any preparatory courses the applicant may have pursued.
[4] The applicant indicated that she did not complete a lengthy training in secretarial duties with the exception of having completed a course in EXCEL. The applicant indicated that at her present employment, she was responsible for letter writing, filing, faxing, scheduling duties and other general secretarial duties. The applicant graduated from college in 1985 and stated in her affidavit that she studied typing for several months subsequent.
[5] At the interview, the applicant was given a typing test. She was allowed ten minutes to practice prior to the administration of the test. Correcting for error rate, the test indicated a typing speed of 22 words per minute.
[6] The visa officer was of the belief that the applicant could not have had any experience in her chosen occupation, as 22 words per minute was too slow and 50 words per minute was considered to be the minimum acceptable speed to employers. The minimum standard set by the visa office is 40 words per minute.
[7] The visa officer assessed the applicant as an Executive Secretary and as a Secretary, but she was awarded zero units of assessment for experience in these occupations. The applicant was found not to have taken "the usual broad range of secretarial courses normally taken by secretaries and executive secretaries in Canada, other than an evening computer course in EXCEL". The applicant was also assessed as a Clerk Typist and was given 54 units of assessment. She was awarded zero points for occupational demand.
[8] The visa officer therefore assessed the applicant as a Clerk Typist. The assessment was:
| Age 10 |
| Occupational Demand 00 |
| SVP 03 |
| Experience 02 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 15 |
| English 09 |
| French 00 |
| Personal Suitability 07 |
| TOTAL 54 |
[9] As the occupational demand for the occupation of Clerk Typist was zero, an immigrant visa could not be issued to the applicant.
[10] The visa officer assessed the applicant's husband as a Freight Forwarding Technician (Ocean Freight), the most beneficial occupation under the CCDO. However, the occupational demand for this occupation is also zero, and visas could not be issued.
Applicant's Submissions
[11] The applicant argues that the visa officer failed to discharge the duty of fairness by not advising the applicant that she would be tested on her typing skills.
[12] The applicant also argues that the visa officer took into account an irrelevant factor in determining the application, namely the "arbitrary" 40 words per minute typing speed for Executive Secretaries.
[13] The applicant also argues that the visa officer ignored evidence, namely, the evidence that the applicant could have achieved a much faster typing speed given her previous experience.
Respondent's Submissions
[14] The respondent submits that there was no duty on the visa officer to inform the applicant of any typing test. The typing test was a matter which arose directly from the CCDO criteria for Executive Secretary and the visa officer was merely discharging his duty to canvass the applicant's skills and qualifications. There is no notice requirement. And as a matter of logic and common sense, a typing test is something that any qualified individual applying for the position of secretary or executive secretary should reasonably expect to be administered during a job interview.
[15] The respondent submits that her proficiency in a core CCDO skill (typing) is not an irrelevant factor and the adoption of an objective, reasonable standard by which to measure an applicant's skill level is not contrary to law.
[16] The respondent finally submits that there is no evidence that was ignored or misinterpreted by the visa officer.
Issues
[17] The applicant in written memorandum, raised the following issues:
| 1. Whether the visa officer erred in law in refusing the applicant's application for permanent residence by failing to comply with the duty of fairness. |
| 2. Whether the visa officer erred in law in taking into account irrelevant and extraneous factors. |
| 3. Whether the visa officer misinterpreted or ignored relevant evidence before him. |
[1] Issue 1
Whether the visa officer erred in law in refusing the applicant's application for permanent residence by failing to comply with the duty of fairness.
The applicant argued that the visa officer breached the duty of fairness by requiring her to take a typing speed test at the interview without having given her advance notice of the test. She argued that the notice of the interview did not alert her of the typing test. The applicant was given 10 minutes practice time prior to the test.
[2] As I read the duties for Executive Secretary, Secretary and Clerk Typist in the Canadian Classification and Dictionary of Occupations, 1971, the ability to type is a requirement of all three occupations. This is not surprising as this is part of the duties required by these occupations. Stated another way, it is not unusual to expect a secretary to be able to type. As a corollary to this, it is not unreasonable to expect a secretary to be able to type efficiently. The visa officer who is experienced in these areas, stated that employers require a typing speed of 50 words per minute and that for visa office assessment purposes, the Department has set the minimum standard at 40 words per minute.
[3] The applicant has argued that the failure to notify her in advance of the typing test is a breach of the duty of procedural fairness. I cannot accept this argument. It is perfectly reasonable to expect that a secretary would be tested with respect to the ability to type. There is no requirement that the visa officer notify an applicant who is applying in the occupation of Secretary, that her typing skills may be checked as part of the interview. This is one of the ways that a visa officer carries out his duty, imposed on him by law, to assess the experience of the applicant! I therefore find that there has been no breach of procedural fairness.
[4] Issue 2
Whether the visa officer erred in law in taking into account irrelevant and extraneous factors.
The applicant argued that the visa officer erred in law by taking into account the Department's typing standard of 40 words per minute as this was an irrelevant and extraneous factor. It is my opinion that it is perfectly reasonable to expect that a person wishing to be assessed in the occupation of Secretary should be able to meet a certain typing level. I do not believe that this is an extraneous or irrelevant factor. Madam Justice Reed in Wu v. Canada (1994) 164 F.T.R. 152, when discussing typing ability stated at pages 153 to 154:
| [3] The fact that not all duties in a CCDO description need be performed does not mean that the ability to perform some are not essential to an occupation. The chapter of the CCDO (4111), in which Executive Secretary is found as a sub-category, is entitled "Secretaries and Stenographers". The "Work Performed" by those filling the occupations found in that chapter is described in the opening paragraph of the chapter. It described what follows as "occupations concerned with taking dictation by shorthand, steno-type machine or dictaphone, transcribing data by typewriter, and performing general office duties." The visa officer's decision, that the applicant lacked "the most basic skills germane to the occupation" of executive secretary because she does not type (she scored 18 w.p.m. on the typing test she was given) and she does not take shorthand or have steno skills, is not a fettering of his discretion or a misevaluation of the evidence. The CCDO supports the conclusion these are basic skills necessary to fulfil the position of a secretary in Canada. The visa officer was not merely imposing his own personal views on the evaluation. |
[5] I am guided in my finding by the remarks of McIntyre J. in Maple Lodge Farms Limited v. Government of Canada et al [1982] 2 S.C.R. 2 at pages 7 to 8:
| It is, as well, a clearly established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, were required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
[6] I therefore find that the visa officer did not make an error of law in respect of this issue.
[7] Issue 3
Whether the visa officer misinterpreted or ignored relevant evidence before him.
It was the position of the applicant that the visa officer misinterpreted or ignored relevant evidence before him, being the evidence presented by the applicant with respect to her employment skills and experience and specifically failed to take into consideration the applicant's assertion that she had previously achieved a faster typing speed and could improve upon the typing speed score of 22 words per minute that she received at the interview. It seems to me that the appropriate time to assess an applicant's typing ability is at the time of the interview. What is relevant is not the applicant's former or future typing speed, but her current typing speed at the date of the interview. I find that no reviewable error was made with respect to this issue.
[8] In conclusion, the application for judicial review is dismissed.
[9] Neither party wished a question to be certified pursuant to subsection 83(1) of the Immigration Act, R.S.C. 1985, c. I-2.
ORDER
[10] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
September 28, 2000