Date: 20031222
Docket: IMM-2159-02
Citation: 2003 FC 1510
Ottawa, Ontario this 22nd day of December, 2003
Present: The Honourable Mr. Justice Mosley
BETWEEN:
ZAKIA YASMIN JOARDER
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Zakia Yasmin Joarder seeks judicial review of the decision of Visa Officer, Benton J. Mischuk, dated April 15, 2002, refusing her application for permanent residence in Canada. The applicant seeks an order quashing the decision of the Visa Officer and referring her application back for assessment in accordance with the reasons of this Court. The applicant also requests a direction that her application be redetermined pursuant to the legislation that was in place at the time of receipt of her original application for permanent residence in Canada.
BACKGROUND
[2] Ms Joarder, a citizen of Bangladesh, submitted an application for permanent residence in Canada in September 1996. She applied under the "independent" category to work in Canada as a Social Worker. Her application was transferred to the Canadian High Commission in Singapore on September 25, 1996 for processing.
[3] Ms Joarder was interviewed on March 10, 1999 at the Canadian High Commission in Dhaka, Bangladesh. Her application was refused by letter dated April 6, 1999. The reason for this refusal was based on the visa officer's concern that the applicant had not really obtained a Bachelor of Social Work degree. On this occasion, she received 6 units of assessment for her knowledge of English, having demonstrated that she understood, spoke and wrote English "well", and 3 units of assessment for the personal suitability factor.
[4] Her application was reopened by a different visa officer on July 4, 1999, after the applicant showed that she had attained the necessary education for her designated occupation, as evaluated by the Canadian Association of Social Workers.
[5] Ms Joarder was then interviewed by another visa officer, Mr. Victor Majid, on October 18, 1999. That visa officer determined that her application would succeed only if she could show reliable evidence of relationship to a claimed family member in Canada, an Aunt. She was unable to provide any certified documentation to establish that relationship. Had that been determined, she would have had sufficient units to meet the requirements.
[6] The Aunt died on July 21, 2001, prior to the decision under review. At the hearing, counsel for the applicant argued that this history remained relevant in that Ms Joarder's failure to establish the relationship was taken into consideration in assessing her personal suitability, as showing a lack of initiative or motivation to complete her application over an extended period of time.
[7] Following the October 1999 interview, the applicant and the Commission had exchanged a series of correspondence related to the issue of proving the relationship to the Aunt in Canada. She was requested to undergo DNA testing to prove this relationship. In response, the applicant wrote to the Commission, stating that she believed she had at least 70 units of assessment to succeed on her application, without the five units awarded for a Canadian citizen or permanent resident relative in Canada. Following the death of her Aunt, the Commission requested a copy of the death certificate, which she provided on March 5, 2002.
[8] Ms Joarder attests, in an affidavit filed in this proceeding, that she was advised at the October 18, 1999 interview that she had been accepted in principle, pending verification of her academic qualifications.
The Visa Officer's Decision
[9] Ms Joarder's application for permanent residence in Canada was refused by letter dated April 15, 2002. The decision letter of the Visa Officer is brief, and contains no explanation as to why the applicant was awarded certain units of assessment. The units awarded to the applicant were as follows:
NOC
AGE 10
OCCUPATIONAL FACTOR 05
EDUCATION AND TRAINING 17
EXPERIENCE 08
ARRANGED EMPLOYMENT OR
DESIGNATED OCCUPATION 00
DEMOGRAPHIC FACTOR 08
EDUCATION 16
KNOWLEDGE OF ENGLISH 02
KNOWLEDGE OF FRENCH 00
PERSONAL SUITABILITY 02
TOTAL 68
APPLICANT'S SUBMISSIONS
[10] Ms Joarder submits that the Visa Officer erred in law in reducing the units of assessment for knowledge of English from the first assessment on April 6, 1999, where she received six units, to two units in the decision currently under review. She argues that the refusal letter is silent as to whether any language testing was conducted and that, in fact, no such testing was administered by the Visa Officer. Further, she argues that the October 18, 1999 interview was not administered by the Visa Officer who refused her application. She submits that the Visa Officer's decision to award the units of assessment for the language and personal suitability factors was based on irrelevant considerations, namely, the observations of the interviewing officer.
[11] In the alternative, Ms Joarder submits that the Visa Officer ignored relevant evidence that was before him, namely the prior visa officer's assessment of her English skills and the prior personal suitability assessment, done following the March 10, 1999 interview. She relies on the standard of deference for discretionary decisions on judicial review, as stated in Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2.
[12] Ms Joarder argues that the Visa Officer should have given the prior interviewing officer's assessment of her English language skills and personal suitability great deference, as it was based on a personal interview. In support, she relies on Shah v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 645 (T.D.)(QL) and Bhatia v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1462 (T.D.)(QL). The applicant also refers to the initial, paper assessment found on the tribunal record where she was awarded 9 units of assessment for knowledge of English.
[13] The applicant says that the standard of review in this case is reasonableness and that the Visa Officer's decision in this case was "unreasonable and clearly wrong". The applicant relies on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[14] Next, Ms Joarder submits that the staff at the Commission demonstrated "bias and animosity" towards her. In support, she refers to the Computer Assisted Immigration Processing System ("CAIPS") notes where an interviewing officer with the initials "VIM" wrote on October 18, 1999 that there were "2 ways to refuse" and that the same visa officer wrote on May 11, 2000 that there were "insufficient grounds to refuse on negative discretion".
[15] The applicant submits that this bias and animosity towards her arose following the concerns of the Commission staff relative to her academic standing, notwithstanding that these concerns were resolved and resulted in her case being reopened. Further, the applicant contends that the Visa Officer delayed the processing of her application by requesting unnecessary DNA evidence.
[16] Relying on Newfoundland Telephone Co. Ltd. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, the applicant argues that the Court may interfere with a decision where it can be shown that the decision-maker did not approach his assessment with an open mind, in that a reasonably informed bystander would perceive bias. This standard, according to the applicant, is "clearly" met in this case.
RESPONDENT'S SUBMISSIONS
[17] The respondent submits that the applicant has not established any reviewable error that warrants this Court's intervention. The respondent refers to the deferential standard of review, set out in To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (C.A.)(QL), that this Court has adopted in the review of visa officer decisions.
[18] The respondent submits that the applicant bears the onus of establishing that she had the right to enter Canada and in this case she failed to do so. Here, the respondent relies on Rani v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1102 and Qayum v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 587 (T.D.)(QL), as well as sections 8 and 9 of the former Immigration Act, R.S.C. 1985, c. I-2. The respondent argues that the applicant was aware of the concern regarding the lack of documentation of her relationship to her aunt in Canada. The applicant was provided an opportunity to respond to these concerns, as she was sent three letters requesting proof of that relationship. An onus was on the applicant to provide all relevant evidence in support of her claim: Zheng v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1397 (T.D.)(QL).
[19] The respondent argues that it has been held by this court that there is no error in the delegation of an interview to another officer, who is not the decision-maker. The Visa Officer attests, in his affidavit filed in this proceeding, that he reviewed the notes of the interviewing officer prior to making his decision. In support, the respondent relies on Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 472 (T.D.)(QL).
[20] The respondent submits that pursuant to the Visa Officer's affidavit, his assessment of the personal suitability factor was not in error. The applicant was awarded only two units for this factor because she had not demonstrated initiative or motivation in learning the type of work done by social workers in Canada or in taking any steps to prepare for her adaptation to the Canadian workforce.
[21] Further, the respondent submits that the Visa Officer's award of two units for English was reasonable. The most recent interviewing officer wrote in the CAIPS notes, after the October 1999 interview, that the applicant was "unable to write well". This observation was accepted by the Visa Officer who then assigned two units for the applicant's language ability.
[22] The respondent submits that contrary to the applicant's contention, her language assessment by a different officer in April 1999 is not relevant to the current decision under review, and the Visa Officer who made the decision under review was under no obligation to give deference to that earlier assessment.
[23] The respondent submits that the applicant has failed to demonstrate that the facts of this case raise a reasonable apprehension of bias, actual bias, or demonstrate animosity toward the applicant. The respondent relies on Skoruk v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1687 (T.D.)(QL).
[24] The respondent refers to the standard for bias set out by the Supreme Court of Canada in Baker, supra, and argues that the conduct of the Visa Officer does not give rise to actual bias or to a reasonable apprehension of bias. The fact that the applicant's assessment resulted in a lower number of units required for a favourable decision does not indicate bias: Ahmed v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 29 (T.D.)(QL).
ISSUES
[25] 1. Did the Visa Officer commit a reviewable error in his assessment of the language or personal suitability factors of Ms Joarder's application?
2. Does the evidence on the record indicate a reasonable apprehension of bias on the part of the Visa Officer?
ANALYSIS
[26] In my view, the record indicates that the Visa Officer committed an error in his assessment of the language factor. However, this error, for the reasons outlined below, could not have made a difference to the decision, as the total number of units awarded to the applicant would not have changed and the decision to refuse her application due to insufficient units would not have been affected. Therefore, as set out in Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48 (F.C.A.), I exercise my discretion not to set aside the Visa Officer's decision, and this judicial review shall be dismissed.
[27] Moreover, the applicant has not demonstrated that the Visa Officer committed a reviewable error in his assessment of the personal suitability factor. Further, she has not shown that there is a reasonable apprehension of bias on the part of any officer who was involved in the decision.
[28] I note that the applicant's contention that the interviewing officer did not administer language testing is only contained in her counsel's legal argument, and not in her affidavit filed for this proceeding. In light of this, as well as the tribunal record, where a photocopy of the applicant's writing sample is found at page 56, I conclude that the interviewing officer on October 18, 1999 did in fact conduct testing of her ability to write in English. At page 5 of the tribunal record, the CAIPS notes for October 18, 1999 indicate as follows:
PI SPOKE ENGLISH WELL AND WROTE ENGLISH WITH DIFFICULTY
...
am extremely dissatisfied with sending this woman to cda while her hopes are to get a policy job. could not write beyond with difficulty, and I had given her all the time she wanted.
[29] A visa officer is entitled to delegate tasks and rely on the observations of another officer who conducted an in-person interview with an applicant: Ali, supra. Reliance on such observations is therefore not a reliance on irrelevant considerations, as argued by the applicant.
[30] The applicant has argued that the Visa Officer who made the April 15, 2002 decision should have deferred to the assessment of the applicant's English language ability done by the officer who interviewed the applicant in March 1999, as this assessment was based on a personal assessment of the applicant by the person who actually made the final decision. In my opinion, this argument is without merit. The cases of Shah, supra, and Bhatia, supra, relied on by the applicant do not stand for the proposition that a Visa Officer must defer to a prior officer's assessment of an applicant's language ability, rather they stand for the proposition that an officer's personal observations are to be given a great deal of deference by a reviewing court and that an applicant's previous experience with a language means relatively little when contradicted by an officer's personal observations.
[31] Here, the Visa Officer delegated the task of interviewing the applicant to another officer. This Court has held that such delegation is an acceptable way to handle such administrative decisions: Ali, supra. The observations of the interviewing officer were based on his personal interview with the applicant and are contained in the CAIPS notes. Therefore, the Visa Officer properly relied on the observations of the interviewing officer in making his final assessment.
[32] The interviewing officer, in my opinion, failed to conduct an assessment of the applicant's ability to read English, as required by the former legislation. The applicant had declared that she read English "fluently" on her application forms. Further, even though the Visa Officer was in no way bound by the previous visa officer's assessment of the applicant's language ability, it nonetheless formed part of the context in which the applicant's case was decided. In that previous decision, all three of the applicant's abilities, that is, speaking, reading and writing were evaluated, and it was determined that the applicant performed at the level of "well" in each of the three areas, garnering two credits for each ability for a total of six units.
[33] Factor 8 of Schedule I of the former Immigration Regulations, 1978, SOR/78-172 (the "former Regulations") provided that for the ability to speak, read or write "well but not fluently", two credits were to be awarded for each ability. For an ability to speak, read or write "with difficulty", no credits were to be awarded. The interviewing officer found that the applicant spoke English "well", therefore two credits were awarded for this ability and none were granted for her ability to write, as she was found to write "with difficulty". However, there is no mention in the tribunal record, including the CAIPS notes, or the Visa Officer's affidavit filed in this proceeding, of any assessment of the applicant's ability to read English. Pursuant to section 8 of Schedule I of the former Regulations, a visa officer was instructed to look at each of these factors. Factor 8(1) and (3) dealt with the assessment of an applicant's first official language and read as follows:
| (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: (a) for an ability to speak, read or write fluently three credits shall be awarded for each ability; (b) for an ability to speak, read or write well but not fluently, two credits shall be awarded for each ability; (c) for an ability to speak read or write with difficulty, no credits shall be awarded for that ability.
...
(3) Units of assessment shall be awarded on the basis of the total number of credits awarded under subsections (1) and (2) as follows: (a) for zero credits or one credit, zero units; (b) for two to five credits, two units; and (c) for six or more credits, one unit for each credit.
|
|
(1) Pour la langue que la personne indique comme sa première langue officielle, le français ou l'anglais, selon son niveau de compétence à l'égard de chacune des capacités suivantes: l'expression orale, la lecture et l'écriture, des crédits sont attribués de la façon suivante: (a) la capacité de parler, de lire ou d'écrire couramment, trois crédits sont attribués pour chaque capacité; (b) la capacité de parler, de lire ou d'écrire correctement mais pas courrament, deux crédits sont attribués pour chaque capacité; (c) la capacité de parler, de lire ou d'écrire difficilement, aucun crédit n'est attribué pour cette capacité.
...
(3) Des points d'appréciation sont attribués sur la base du nombre total de crédits obtenus selon les paragraphes (1) et (2), d'après le barème suivant: (a) zéro ou un crédit, aucun point; (b) de deux à cinq crédits, deux points; (c) six crédits ou plus, un point par crédit. |
[34] The wording of Factor 8 of Schedule I to the former Regulations is clear, in my view, that a prospective immigrant must be evaluated in each of their three abilities, that is, speaking, reading and writing. The record in this case shows that neither the interviewing officer, nor the Visa Officer turned their mind to the assessment of the applicant's ability to read in English. This court has held that such assessment is required: Patel v. Canada (MCI), [1998] F.C.J. No. 1232 (T.D.)(QL) and Sheremet v. Canada (MCI), [2003] F.C.J. No. 1247 (T.D.)(QL).
[35] However, this error would not have affected the final outcome of the applicant's application and, in fact, would not have changed the number of units awarded for language. Even if the applicant received the highest award for her reading ability, that is three credits for reading English fluently, she could not have received more than two units for the language factor, pursuant to subsection (3) of Factor 8. The applicant had already been assessed as speaking "well but not fluently", resulting in two credits and writing "with difficulty", resulting in zero credits. A perfect score on her ability to read English would have given her three more credits, bringing her total of credits to five. According to subsection (3), only two units were to be awarded to an applicant who received between two and five credits.
[36] Secondly, the record does not support a finding of actual bias, or a reasonable apprehension of bias on the part of the Visa Officer in this case. Justice L'Heureux-Dubé in Baker, supra, discussed the issue of bias in the context of visa officers, and stated as follows at paragraphs 45-46:
Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker. The respondent argues that Simpson J. was correct to find that the notes of Officer Lorenz cannot be considered to give rise to a reasonable apprehension of bias because it was Officer Caden who was the actual decision-maker, who was simply reviewing the recommendation prepared by his subordinate. In my opinion, the duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision. The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, then the decision itself cannot be said to have been made in an impartial manner. ....
The test for reasonable apprehension of bias was set out be Grandpré J., writing in dissent, in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is "what would an informed person, viewing the matter realistically and practically- and having thought the matter through- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."
[37] From Baker, supra, the duty to act fairly applies to all immigration officers who play a significant role in making a decision. Here, therefore, the visa officer who interviewed the applicant on October 18, 1999 is expected to conduct himself in a manner that does not give rise to a reasonable apprehension of bias. Do the remarks noted down by this visa officer, with the initials "VIM" or any conduct of the Canadian High Commission in Singapore, give rise to a reasonable apprehension of bias? In my view, that answer must be answered in the negative.
[38] Applying the test addressed in Baker, supra, an informed person, viewing the matter realistically and practically would not conclude that officer "VIM" failed to approach the assessment of the applicant's application with an open and impartial mind. The comments of the interviewing officer, addressed by the applicant in her submissions, do not demonstrate bias. They indicate, rather, that the interviewing officer had an opinion as to how the applicant's application should be assessed, however, the Visa Officer responsible for the final decision attests in his affidavit that he was the officer who "made" the selection decision in the applicant's case.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2159-02
STYLE OF CAUSE: ZAKIA YASMIN JOARDER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 17, 2003
REASONS FOR ORDER
AND ORDER BY: MOSLEY, J.
DATED: DECEMBER 22, 2003
APPEARANCES BY: Mr. Peter D. Woloshyn
For the Applicant
Mr. Brad Godkin
For the Respondent
SOLICITORS OF RECORD: Mr. Peter D. Woloshyn
Yallen Associates
Barristers & Solicitors
204 St. George Street, 3rd Floor
Toronto, Ontario
M5R 2N5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent