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The burden of proof is on the applicant – Metro US

The burden of proof is on the applicant

Q. A friend of mine applied for permanent residence under the Federal Skilled Worker program. A few days ago she received a refusal because they didn’t assign any points for her English language. She was studying English at school. Moreover, at university she was attending a special English course for two more years. She submitted a certificate that she learned English before. However, she didn’t go to any English exam to prove her knowledge because in the letter from the Embassy, they didn’t ask her to do so. When I immigrated some time ago, I got clear instructions from the Embassy that I have to go to a certain test assessment organization. So, it’s very unfair to assign her “0” for language that she knows pretty well. Moreover, she is taking an English course at the moment, but she started after she submitted the documents, so she didn’t send the letter informing them about it yet.

She is a young doctor, and there is a huge shortage of doctors in Canada. What can we do? She cannot just sit and wait a couple of more years in order to reapply.

A.There are a few lessons to be learned here.

First and foremost, in every case under our immigration laws, the applicant has the burden of proving each and every requirement that applies to the type of application that is being submitted. Generally speaking, there is no obligation on the officer to fill any of the holes. The officer is not generally required to inform you of his/her concerns, to ask you for additional documents, to call or write anyone, or to look up anything online or elsewhere in order to help you make out your case. The officer is legally entitled to sit back, watch you fail, and do absolutely nothing to prevent it. Your job is to anticipate every single concern that an officer might have and spoon feed them the very best, most comprehensive, and reliable evidence you could possibly muster to ensure that no reasonable concern could remain unanswered.

It’s a pretty tall order, but the courts have backed this approach saying “applicants have the onus of establishing the facts on which their claim rests… they omit pertinent information from their written submissions at their peril”

Apparently, whatever documents that were submitted were incapable of convincing the officer of any particular level of English ability. That being the case, no points were awarded.

Why the unequal treatment between you and your friend? Officers are required, by their operations manual, to inform applicants that they have not proven their claimed language ability but only in circumstances where the officer has already been persuaded that the applicant has “level 4” i.e. “basic” English proficiency. Perhaps, that’s what happened in your case.

Secondly, applicants whose mother tongue is not English or French should always take the prescribed language test since those results are binding on the officer. Although the test is not mandatory, CIC “strongly advises” applicants to take the test. The option of proving your abilities through “evidence in writing” is, in my general view, only for those who wish to court disaster. It’s far better to risk a poor score on a test than to risk being handed a ‘0’ for English or French.

Thirdly, appeals should only be pursued in cases where the evidence is strong enough to justify the cost, duration and uncertainty of the appeal. I doubt that we have that here. Assuming she qualifies, it might be better to just start all over again.

Finally, it’s a real shame that a badly-needed physician may be denied the opportunity to provide care to Canadians simply for not having received some very basic and timely professional advice.

– Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com

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