Date: 20040809
Docket: IMM-5795-03
Citation: 2004 FC 1092
Ottawa, Ontario, August 9, 2004
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
VOJSAVA CELA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of Visa Officer, Halina Roznawski (the "officer") in which the officer refused the applicant's application for permanent residence in Canada because she was not satisfied that the applicant met the requirements for immigration to Canada as set out in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") and the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").
[2] Vojsava Cela ("the applicant") is a citizen of Albania. The applicant was refused refugee status under the Post-Determination Refugee Claimant in Canada Class ("PDRCC") and her application for permanent residence on humanitarian and compassionate grounds was also denied.
[3] On March 27th, 2001 the applicant applied for a permanent residence visa as a member of the federal skilled worker class pursuant to subsection 75(2) of the Regulations. In her application, she explained that she wished to be assessed under the job classifications of Accountant (NOC 1111), Economist (NOC 4162), Bookkeeper (NOC 1231) and Superintendent (NOC 6663).
[4] On May 23rd, 2003 the applicant was refused the immigrant visa because the officer found that she failed to receive a sufficient number of points to qualify under the Act and the Regulations.
[5] The officer gave the applicant a total of 63 out of 100 points and thereby concluded that, pursuant to section 76 of the Regulations, the applicant had not obtained the 70 points required to obtain a permanent resident visa as a member of the federal skilled worker class.
ANALYSIS
Education
[6] The applicant submits that the officer awarded her an incorrect number of points for her education. Specifically, the applicant argues that her education is equivalent to a Master's degree and pursuant to paragraph 78(2)(f) of the Regulations she should have been awarded 25 points rather than 20. Alternatively, the applicant submits that pursuant to paragraph 78(2)(e) of the Regulations, she should at least have been awarded 22 points for her education because she has completed a three-year post-secondary educational credential.
[7] The officer gave the applicant 20 points in the education category after having evaluated the applicant's educational background pursuant to subparagraph 78(2)(d)(i) of the Regulations. In her affidavit, the officer underlines that the applicant gave three different versions of her level of education and the version that was assessed was that presented during the interview; namely, that she completed high school in 1977 and received her Bachelor's degree in 1984 through a part-time correspondence course while she worked full-time. In her CAIPS notes, the officer indicates that:
Education: completed h/s in 1977 and went to work. 1980 to 1984. Degree was obtained through Correspondence while working. Cirriculum (sic): study accounting, planning and organization and everything for worksheet, statements, financial, everything. I believe that this would warrant 20 points for education maximum and this may be generous as it is p/t studies.
[8] The officer acknowledged that the applicant had taken an adult education course in accounting while living in Canada. However, given the applicant's failure to establish that the course was a course described in subsection 78(2) of the Regulations, the officer did not find that the accounting course justified the award of additional points.
[9] I do not find that the officer erred in her assessment of the applicant's education. The applicant provided student transcripts from the Yorkdale Adult Learning Centre attesting to the accounting courses she had taken. However, none of these documents indicate that the applicant was awarded a credential for her studies. Thus, I find that the officer reasonably evaluated the evidence presented and awarded the applicant a sufficient number of points for her education.
Language
[10] The applicant submits that she was not awarded a sufficient number of points for her English language ability because the officer ignored her ability to carry out a conversation throughout the interview without the assistance of an interpreter. The applicant agrees that the officer complied with the Regulations but argues that the officer should not have accepted the evaluation outlined in the YMCA assessment. I disagree. Section 79 of the Regulations clearly provides that to prove her proficiency the applicant has the option of providing either a language assessment from a designated institution or supporting documentation that conclusively substantiates her claimed language ability. The applicant chose to provide a written assessment from the YMCA Language Assessment Centre.
[11] Contrary to the applicant's submission, the officer had no discretion to vary the findings represented in the assessment provided by the applicant.
[12] Thus, I find that the officer's evaluation of the applicant's English language skills on the basis of the YMCA Language Assessment Centre Evaluation was well-founded and reasonable.
The Officer's Substituted Evaluation
[13] The applicant submits that the officer erred in law by failing to consider exercising her positive discretion despite her duty to do so. According to the applicant, the evidence clearly and persuasively demonstrated that she will successfully establish herself in Canada. Subsection 76(3) of the Regulations provides that:
| 76(3) Whether or not the skilled worker has been awarded the minimum number of required points, an officer may substitute for the criteria set out in subsection (1) their evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada if the number of points awarded is not a sufficient indicator of whether the skilled worker may become economically established in Canada. |
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76(3) Si le nombre de points obtenu par un travailleur qualifié - que celui-ci obtienne ou non le nombre minimum de points visé au paragraphe (2) - ne reflète pas l'aptitude de ce travailleur qualifié à réussir son établissement économique au Canada, l'agent peut substituer son appréciation aux critères prévus au paragraphe (1).
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[14] The officer indicated in her reasons that she was of the opinion that the points obtained are an accurate reflection of the applicant's ability to successfully establish in Canada. The officer turned her mind to the possibility of substituted evaluation and gave the applicant the opportunity to provide reasons why she and her family warranted special consideration but she failed to do so in a satisfactory manner. The CAIPS notes include the following passage:
I advise she obtains 63 points. Need 70. Long discussion pleading with me. I explain that I have already been generous by awarding full units for the relative and for the p/t university studies. Explain that they would need authorization to return and TRV. Explain that their work permits are no longer valid. They are upset. Pleads again. Had to request several times that they leave as interview is concluded and that I believe that the points accurately reflect their ability to successfully establish in Canada. Other than pleading with me to think of their kids, they did not provide any other reasons to warrant substituted evaluation.
[15] I disagree with the applicant's submission that the officer took irrelevant considerations into account when evaluating whether she will successfully establish in Canada. A reading of the officer's affidavit and the transcripts of the cross-examination of the officer reveals that she had concerns with respect to the applicant's source of funds since the applicant and her husband had managed to save $32,000 in a short period while reporting annual earnings of $9,859 on their income tax return. The officer found that these concerns affected the applicant's credibility. Despite the applicant's submission to the contrary, I find that an inquiry into the source of funds is a relevant consideration as regard the applicant's credibility since credibility is always a relevant factor in assessing whether an applicant may become economically established in Canada.
Procedural Fairness and Natural Justice
[16] The applicant submits that the officer failed to observe a principle of natural justice and procedural fairness because she was not given an opportunity to respond to any of the officer's concerns about her education and her English language abilities before a decision was taken. Again, I disagree with this submission. In Parmar v. Canada (M.I.C.), (1997) 139 F.T.R. 203 at 213 MacKay, J. comments that:
¶ 36 [...] Procedural fairness does not oblige a visa officer, in weighing evidence provided by an applicant, "... to accord an applicant a 'running score' or a penultimate comment on his 'score' ". I would add to this position the view [...] that there is no requirement for notice of an officer's concerns where these arise directly from the Act and Regulations that the officer is bound to follow in his or her assessment of the applicant.
[17] Since the officer based her evaluation of the applicant's English language skills and education on the basis of the evidence which was submitted to her by the applicant, I find that the officer's failure to inform the applicant of her concerns is not a breach of procedural fairness or of natural justice.
[18] For these reasons, I find that the officer did not err when she refused the applicant's application for permanent residence in Canada. Consequently, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5795-03
STYLE OF CAUSE: VOJSAVA CELA v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 4, 2004
REASONS FOR ORDER
AND ORDEROF THE HONOURABLE MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
APPEARANCES:
Ms. Inna Kogan FOR THE APPLICANT
Ms. Pamela Larmondin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Inna Kogan
Barrister & Solicitor
120 Eglinton Avenue East
Suite 1000
Toronto, Ontario
M4P 1E2 FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT