XU, JIE Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2003 FCT 380

Date: 20030331 Docket: IMM-2307-01 Neutral citation: 2003 FCT 380 Ottawa, Ontario, this 31 st day of March, 2003 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: XU, JIE Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Applicant REASONS FOR ORDER AND ORDER Mr. Jie Xu (the "Applicant") seeks judicial review of the decision of Visa Officer Sanjeev Verma (the "Visa Officer") dated March 29, 2001.

In his decision, the Visa Officer refused the Applicant's application for permanent residence in Canada. [2] In June 1999, the Applicant, a citizen of China, applied for permanent residence in Canada as a member of the assisted relative, skilled worker category. His intended occupation in Canada was as an "Advertising and Marketing Consultant", National Occupation Classification ("NOC") 1122.2. [3] The Applicant attended an interview at the Canadian Consulate in Hong Kong on March 23, 2001.

He was questioned by the Visa Officer in English but the Visa Officer determined that the Applicant was having difficulty in understanding the questions and requested an assistant to participate as an interpreter. The Visa Officer instructed the Applicant to respond in the Mandarin language and his answers were translated. [4] In the course of the interview, the Visa Officer questioned the Applicant about his educational background, his work experience, his reasons for seeking admission into Canada and his plans for employment as well as about his family relationship in Canada.

Ultimately, the Visa Officer concluded that the Applicant had failed to show that he met the selection criteria for admission into Canada. The Visa Officer awarded the following units of assessment: Age 10 Occupational Demand 03 Education/Training Factor 15 Experience 06 Arranged Employment 00 Demographic Factor 08 Education 15 English 00 French 00 Personal Suitability 05 Total 62 [5] The dispositive argument raised by the Applicant relates to the manner in which the Visa Officer assessed his English language skills.

Although the Applicant described his English language ability as fluent and sought the award of nine units in that regard, the Visa Officer determined that he was entitled to no units of assessment. [6] In my opinion, the Applicant has failed to show that the Visa Officer committed a reviewable error in the manner in which he assessed the Applicant's language ability.

Assessment of language ability is a question of fact and the findings of a visa officer will remain intact unless there is evidence of a breach of the duty of fairness, failure to consider relevant evidence or reliance upon extraneous matters and irrelevant evidence. In this regard, I refer to Yang v. Canada (Minister of Citizenship and Immigration , 2001 FCT 750 (CanLII) , [2001] F.C.J. No. 1126 (T.D.) (QL) and Liang v. Canada (Minister of Citizenship and Immigration) , [2001] F.C.J.

No. 1343 (T.D.) (QL) . [7] Furthermore, the Applicant has failed to demonstrate that the Visa Officer made any reviewable error in his assessment of

the personal suitability factor. The CAIPS notes indicate that the Visa Officer directed his attention to whether the Applicant would likely be able to economically support himself and his dependents in Canada. [8] In my opinion, the Visa Officer did not "double count" the Applicant's poor language ability under the heading of personal suitability. A visa officer can consider an applicant's failure to improve his language skills under the personal suitability factor as it relates to his initiative or ability to become successfully economically established in Canada; see Bing v.

Canada (Minister of Citizenship and Immigration) (2001), 2001 FCT 944 (CanLII) , 210 F.T.R. 130. [9] The award of units for personal suitability is entitled to considerable deference: see Gill v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 127 (F.C.T.D) . Here, there is no indication that the Visa Officer, in awarding the Applicant 5 units under this factor, employed his discretion in an arbitrary or capricious way or considered irrelevant factors. [10] The record does not disclose a breach of the duty of fairness.

There is no evidence to show that the Visa Officer failed to consider the evidence before him. There is no basis for judicial intervention. [11] The application for judicial review is dismissed. There is no question for certification. ORDER The application for judicial review is dismissed. There is no question for certification. "E. Heneghan" J.F.C.C. FEDERAL COURT OF CANADA Names of Counsel and Solicitors of Record DOCKET: IMM-2307-01 STYLE OF CAUSE: JIE XU v. MCI DATE OF HEARING: March 27, 2003 PLACE OF HEARING: Toronto, Ontario.

REASONS FOR ORDER AND ORDER: The Honourable Madam Justice Heneghan DATED: March 31, 2003 APPEARANCES BY: Joseph R.Young For the Applicant Stephen H. Gold For the Respondent SOLICITORS OF RECORD: Joseph R. Young Barrister and Solicitor 1200 Bay Street, Suite # 608 Toronto, ON M5R 2A5 Tel:416-969-8887 Fax:416-969-8866 For the Applicant Stephen H. Gold Department of Justice 130 King Street West Suite 3400, Box 36

Toronto, Ontario M5X 1K6 Tel:416-954-0624 Fax:416-954-8982 For the Respondent