Date: 19990416
Docket: IMM-3445-98
Between :
VIRGINIJA SKALSKIENE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, (the Act) for judicial review of the decision of Iwona Dabrowska-Duda, a visa officer at the Canadian Embassy in Warsaw, Poland dated May 27, 1998, refusing the applicant's application for permanent residence in the independent category as a "business consultant".
[2] The applicant first argues that the visa officer's assessment of her English skills required flawless communication without any barriers to communication, and therefore, based on Chatrova v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm.L.R. (2d) 59, the visa officer has erred in a material way.
[3] In Chatrova, supra, the Court held as follows, at page 60:
| . . . In his decision letter, refusing the applicant an immigrant visa, the visa officer explained to her that her English was good but not "flawless". The applicant is not required to have flawless English in order to be awarded three points. The visa officer has to assess whether her English is "fluent". I do not place much emphasis on the wording of the visa officer's letter since the visa officer's notes indicate that it was fluency, not flawlessness, that he assessed. At the same time, the use of the word "flawless", in the decision letter, understandably left the applicant somewhat puzzled. It must have raised in her mind a question as to whether she was being fairly assessed. She responded to that letter by stating that she had never claimed her English to be flawless but she did claim to be fluent. |
[4] In her affidavit, the visa officer explained her rationale at paragraph 7:
| With respect to Ms. Skalskiene's English language skills, I found that she could communicate well orally in English (although not fluently). I tested her writing and reading ability which I also assessed as "well". . . . Ms. Skalskiene was awarded a total of 6 units of assessment for her English ability. |
[5] The transcript of the cross-examination of the visa officer, found at pages 42 to 44 of the Applicant's Record, includes the following:
| Q. Okay, let me ask you another question about English language. When you assess English language abilities, how do you distinguish between fluency and someone who only qualifies as being well? What is fluency, can you . . . |
| A. Fluency is a very accurate rendition of all the -- of meanings of -- it's like -- when the words so gratefully. (sic) When we have an impression that the person comprehends everything we said and is able to respond in a very descriptive narrative to specific questions. |
| If I recall, I had problems in -- with comprehension of Mrs. Skalskiene's part when it came to description of her job duties, . . . |
| Q. Would you call it flawless communication? |
| A. I would say so, yes, very accurate flow communication, understanding almost all the words and being able to express certain types of meaning. |
[6] In light of the above evidence, I am unable to conclude whether the visa officer expected the applicant to have "flawless" English, as set out in Chatrova, supra. The expression is first used by counsel for the applicant during the cross-examination, but the visa officer confirms that she was looking for an accurate flow of communication, an understanding of almost all the words and an ableness to express certain types of meaning. In that context, the visa officer's conclusion that the applicant spoke English well but was not fluent is not erroneous and was reasonable having regards to their interview.
[7] Second, the applicant submits that the submissions made by her counsel on behalf of the personal suitability of the applicant and her spouse together support a level of personal suitability that is above average, and there is no indication in the decision of the visa officer that they were adequately addressed. The applicant further argues that the visa officer erred in not exercising her discretion.
[8] In Chiu Chee To v. M.E.I. (May 22, 1996), A-172-93, the Federal Court of Appeal held that the appropriate standard of review for discretionary decisions of visa officers with respect to immigrant applications is the same as that enunciated by the Supreme Court of Canada in Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 1, where Mr. Justice McIntyre stated 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, where 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. . . . |
[9] Personal suitability is a category which allows a visa officer to award points, on the basis of an interview, for four factors, i.e., adaptability, motivation, initiative and resourcefulness. Upon reviewing the evidence, including the transcript of the cross-examination of the visa officer1 and paragraphs 6 and 8 of her affidavit,2 I am not convinced, given the level of deference to be accorded to her decision, that she committed a reviewable error.
[10] Finally, as a procedural fairness issue, the applicant submits that the evidence leads to the conclusion that the visa officer, in fact, first made a positive decision subject to confirmation of her occupation by the certified copy of her work book and that the visa officer, in error or by other unjustified action, made a negative decision prior to receipt of the said work book which does confirm the occupation. In my view, this allegation bears no relation to actual facts and appears to be based entirely on hearsay statements contained in the affidavit of the applicant's counsel's clerk. There is no evidence to suggest that the visa officer was initially going to grant a positive decision and then rescinded that decision in error. After reviewing the CAIPS notes of the visa officer, I see nothing that would indicate a positive decision was supposed to be rendered. There is also no convincing evidence on file to indicate that the visa officer intimated that a positive decision was subject to receiving a certified copy of the work book as the visa officer states in her affidavit that she indicated the work book was not necessary. The argument, therefore, is without merit.
[11] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
April 16, 1999
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