Date: 20000526
Docket: IMM-2115-99
Between :
MIN LI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of Warren Apesland, a visa officer at the Canadian Consulate General in Los Angeles, California, dated March 19, 1999, refusing his application for permanent residence in Canada.
[2] The applicant is a citizen of China. He submitted his application for permanent residence under the occupation of mechanical engineer (NOC 2132.0).
[3] The applicant was assessed in that occupation and was awarded the following units of assessment:
| Age 10 |
Occupational Factor 05
SVP 17
Experience 08
ARE 00
Demographic Factor 08
Education 15
English 00
French 00
Bonus 00
Suitability 04
Total 67 Units (out of the required 70)
In his decision, the visa officer explained:
| You were awarded 0 units for language ability because it was determined at your selection interview that you speak, read and write English with difficulty. You were awarded 4 units in the area of personal suitability because it is my opinion that you could expect to experience significant difficulties locating and maintaining employment in your declared discipline, Mechanical Engineer. Given your limited language ability, it is reasonable to expect you would experience problems communicating at the professional level in Canada. |
[4] Discretionary decisions of visa officers with respect to immigrant applications command deference. In Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the Federal Court of Appeal adopted the standard set out by the Supreme Court of Canada at pages 7 and 8 of Maple Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2:
| . . . 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. . . . |
[5] The first issue raised by the applicant involves the visa officer's assessment of his language abilities. In response to Part B, question 1 of his application, the applicant indicated that he could speak, read and write English "well". In his affidavit, the applicant states that from October 1996 to present he has been enrolled in an ESL course at Rosemead College in Los Angeles.
[6] The interview was conducted in English, without an interpreter. In his affidavit, the visa officer claims that this was done with difficulty. He states that it was apparent that the applicant's English was "nowhere nearly as advanced as he had declared". The visa officer formed the opinion that the applicant had exaggerated his ability. He informed the applicant that his spoken English did not reflect three years of English study. He also informed the applicant that he would test his English.
[7] The visa officer noted that the applicant's spoken English "was seriously impaired by problems with pronunciation, enunciation, syntax and other errors". Therefore, he assessed the applicant's speaking ability at the "with difficulty" level.
[8] In addition, the officer asked the applicant to read a paragraph from Visa magazine. He states that the applicant was unable to finish the paragraph and that it was apparent that the applicant did not understand what he was reading. More particularly, the applicant mispronounced some words, could not join sentences properly, had difficulty with enunciation and had problems sounding out the words. He assessed the applicant's reading ability as "with difficulty". The applicant challenges this finding on the grounds that he understood the content of the paragraph despite his pronunciation difficulties.
[9] The visa officer also dictated a three-sentence paragraph from the same magazine to the applicant. The visa officer states that the applicant exhibited pronunciation problems with spelling and sentence structure, that there were words he did not understand and others that he missed altogether. He assessed the applicant's writing ability at the "with difficulty" level. The applicant disputes this finding on the grounds that the paragraph was unclear and unrelated to his education, work or social situation.
[10] According to his affidavit, the visa officer asked the applicant how his English could be so poor after three years of English study. The applicant responded that he worked for a friend at a restaurant. The visa officer states that from what he could tell, the applicant did not complete his English studies. The applicant apparently explained that he studied English at home in his spare time.
[11] In my opinion, the visa officer's decision to award the applicant zero points for knowledge of English has a strong evidentiary basis and there is nothing in the record to indicate that it was based on irrelevant considerations or made in a perverse or capricious manner.
[12] The second issue raised by the applicant involves the visa officer's assessment of his personal suitability. In this regard, counsel for the applicant having indicated before me that "double counting" is no longer an issue, I have not been convinced that the visa officer erred in considering the applicant's savings and lack of relatives in Canada. The visa officer took the applicant's lack of funds into account only with respect to the expense of flying the applicant's wife and child to Canada and settling them here. Likewise, it appears that he considered the applicant's lack of relatives in Canada only in the sense that the applicant had no one to assist him here. These factors led the officer to doubt the applicant's ability to become successfully established.
[13] Furthermore, I think that the applicant was made aware of the visa officer's concerns with respect to his personal suitability. The visa officer states in his affidavit that he told the applicant he would not be awarded many points for personal suitability because of his inability to adapt and his lack of savings. Although the applicant states that the visa officer did not tell him that he was concerned that his language ability would make it difficult for him to settle, he admits that the visa officer did indicate to him that his application would be rejected because of his English. Therefore, it seems to me that the applicant was aware that his English ability was an obstacle to his application for permanent residence.
[14] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
May 26, 2000