Date: 20060922
Docket: IMM-1461-06
Citation: 2006 FC 1131
BETWEEN:
MAYURI RAMESHCHANDRA SHAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 13th of September, 2006 of an
application for judicial review of a decision of W.J. Bottomley, Counsellor
(Immigration), High Commission of Canada at New Delhi, India. In
the decision, dated the 29th of December 2005, the decision-maker
determined that the Applicant is not a dependant child according to the Immigration
and Refugee Protection Regulations and therefore she was deleted from the
application for permanent residence in Canada of her parents, her brother and
herself that was sponsored by her sister, and her sister’s husband, both
citizens of Canada.
[2]
The
Applicant’s application for permanent residence in Canada, together
with that of her mother, father and brother, was filed in November 2002. The
Applicant turned 22 years of age on the 27th of July 2001, prior to
the sponsorship of her sister and brother-in-law being filed. That
notwithstanding, the Applicant alleged that she was in full-time attendance at
an educational institution in India and was completely dependant upon her
parents for support at all times since before her 22nd birthday.
[3]
The
decision under review recites the fact that the Applicant, her parents and her
brother were interviewed by an Immigration Program Officer at New Delhi, India, on the 7th
of December 2005, in their native language, through an interpreter. The
decision notes that, during the interview, there was no indication that the
Applicant or her family members had difficulty in understanding the questions.
[4]
The
decision goes on to quote the definition of the expression “dependant child” as
contained in section 2 of the Immigration and Refugee Protection Regulations,
and it was not in dispute on this application for judicial review that, in
order for her application to succeed, the Applicant needed to fit within that
definition. In order to qualify, the definition requires that a person such as
the Applicant must have depended substantially on the financial support of her parent
since before the age of 22 and must have been, first, continuously enrolled in
and attending a post-secondary institution that is accredited by the
relevant government authority, and secondly, actively pursuing a course of
academic, professional or vocational training on a full-time basis.
[5]
The
decision letter continues:
…
Mayuri Shah [the
applicant] turned 22 years of age on July 27, 2001. She had begun with a
computer course in 2000 from Aptech Education Centre. The course was completed
in 2003. Thereafter, Mayuri has been doing various computer language courses
from the same institute. All universities in India fall under
the purview of the University Grants Commission, and Aptech is not one of
them. Therefore, Aptech is a private institute and not a government
institute. Consequently, Mayuri Shah has not been continuously enrolled in and
attending a post-secondary institution accredited by the relevant government
authority since 2000.
Given the foregoing, I
conclude that Mayuri Shah is not a “dependant child” as defined in section 2 of
the Immigration and Refugee Protection Regulations in that she has not
been able to demonstrate to my satisfaction that she was continuously enrolled
in and attending a post-secondary institution accredited by the relevant
government authority since before she attained 22 years of age.
Since Mayuri Shah is not
a dependant child according to the Immigration and Refugee Protection
Regulations, I have deleted her from your application.
The decision letter was directed to the
Applicant’s father.
THE PROCESS LEADING TO
THE DECISION UNDER REVIEW
[6]
As
earlier indicated, the Applicant and her family members then remaining in India
were interviewed at New Delhi on the 7th of December, 2005. The
CAIPS notes in respect of that interview, as they relate to the Applicant, read
in part as follow:
…
A letter from Aptech
Computer Education has been submitted that indicates her current program of
study since July 2005.
Is Aptech a government
institute or a private institute?
Government-recognised
institute.
What do you mean? It is
approved by the government.
Who conducts the exam?
Aptech. The certificates are issued by Aptech.
Under what university
does Aptech fall? None.
......
I explained my concerns
to the Applicant:
- Mayuri Shah turned 22
years of age on 27 July 2001. She had begun with a computer course in 2000 from
Aptech Education Centre. The course was completed in 2003. Thereafter, Mayuri
has been doing various computer language courses from the same institute. All
universities in India fall under the purview of the University Grants
Commission, and Aptech is not one of them. Therefore, Aptech is a private
institute and not a government institute. Consequently, Mayuri Shah has not
been continuously enrolled in a post-secondary institute accredited by the
government.
I gave the Applicant a
chance to respond. The Applicant had nothing substantive to say in response to
the concerns.
[7]
It
was not in dispute that the interviewing officer did not have the authority to
make a decision deleting the Applicant from the application of herself, her
parents and her brother. In the result, the interview conducted by her was a
fact-finding interview with the record created passed on to the decision-maker.
[8]
The
decision-maker attested in part, in an affidavit filed on this application, as
follows:
3.
The
Immigration and Refugee Protection Regulations require that a dependent child
over the age of 22 be enrolled full time in an accredited institution.
4.
The
educational system in India is directed, controlled and managed by
the Central government or State governments through statutory bodies created
for that purpose. The University Grants Commission (UGC), referred to in my
reasons for decision, is responsible for coordination, determination and
maintenance of standards in education. According to the University Grants
Commission Act 1956, the right of conferring or granting degrees shall be
exercised only by a University established or incorporated by or under a
Central Act, or a State Act, or an institution deemed to be a University or an
institution specially empowered by an Act of Parliament to confer or grant
degrees.
5.
The
All India Council of Technical Education, and several other professional
Councils in various fields, are engaged in promoting development in the field
of technical and professional education in a coordinated and integrated
manner. The All India Council of Technical Education is vested with statutory
authority for planning, formulation and maintenance of norms and standards, and
quality assurance through accreditation.
6.
In
addition, state governments in India also have concurrent powers to
promulgate laws in the field of education, university education, medical
education, technical education and universities.
7.
A
private or unrecognized institution is one which is not a central university or
a state university, nor a college affiliated to a university, nor an autonomous
college, nor a deemed university, nor a technical institute to which
accreditation has been provided by All India Council of Technical Education nor
some other Central or state professional body in their respective field. As
the interviewing officer informed the Applicant at her interview, and as I
noted in my decision, Aptech is such a private institute.
8.
Visa
officers attempt to verify through the Universities Handbook prepared and
printed by the Association of Indian Universities, several other publications
in different technical and professional areas, and internet if the institute
attended by an applicant is an institute which is recognized by the central or
state government, or is affiliated to an institution so recognized. This is
what the interviewing officer and I did in the present case before coming to
the conclusion that Aptech was not an accredited or recognized institution.
[9]
As
will be seen later in these reasons, it is unfortunate that the decision-maker
appeared to interchange or treat as of similar meaning, the terms “accredited”
and “recognized” in relation to institutions of learning.
[10]
The
decision-making officer acknowledged during cross-examination on his affidavit
that he went to the Aptech web-site before reaching a conclusion. He determined
that there was nothing on the web-site to indicate that Aptech was accredited
by the federal government of India. The fact that the decision-making officer
visited the Aptech web-site on the issue of accreditation was never made known
to the Applicant.
[11]
In
a document appearing in the Tribunal record at pages 44 and following, there
appears a communication providing further information from the Applicant and
her family members in India. The communication is stamped received by
the Canadian High Commission in New Delhi on the 3rd
of December 2005, and therefore after the interview of the Applicant and her
family members and before the date of the decision under review. The
communication includes documentation from Aptech itself and further
representations by the Applicant to the effect that Aptech is an
internationally “recognized” organization. The Court has no reason to believe
that this material was not in front of the decision-maker before the date of
his decision.
THE ISSUES
[12]
In
general terms, the issue on this application for judicial review is whether or
not the decision-maker erred. More specifically, counsel for the Applicant
urged that the decision-maker erred in not having, himself, conducted the
interview of the Applicant and further erred in failing to disclose to the
Applicant that he had consulted the Aptech web-site and the result of that
consultation, and provided the Applicant an opportunity to respond to that
disclosure.
ANALYSIS
Standard of Review
[13]
In
Yen v. Canada (Minister of Citizenship and Immigration),
my colleague Justice O’Keefe, after conducting a pragmatic and functional
analysis, concluded that a decision of a visa officer as to whether an
applicant qualifies for a visa to enter Canada is a question of mixed fact and
law and should therefore be reviewed against the standard of reasonableness simpliciter.
I am satisfied that Justice O’Keefe’s analysis is applicable here. The issue of
whether or not an educational institution has been “accredited” involves the
interpretation of that term in the Immigration and Refugee Protection Regulations.
As such, a question of law arises. However the interpretation of that phrase
must be made in the context of the facts on any given application such as that
now before the Court. Thus, the issue is one of mixed fact and law and thus the
reasonableness simpliciter standard is appropriate.
[14]
An
allegation of reliance on extrinsic evidence without providing an applicant the
opportunity to respond to that evidence raises a question of fairness. In such
circumstances, the question of standard of review does not arise. If procedural
fairness is determined not to have been provided, this Court should accord no
deference to the decision of the decision-maker that is under review.
“Accredited”
[15]
As
earlier indicated in these reasons, the Immigration and Refugee Protection
Regulations require that, in order for a person in the circumstances of the
Applicant to qualify as a “dependant child” with respect to a parent, if the
person is over twenty-two (22) years of age, the person must have: first, since
before turning twenty-two (22) years of age, depended substantially on the
financial support of the parent; second, must have been a student continuously
enrolled in and attending a post-secondary institution that is accredited
by the relevant government authority; and third, currently be actively pursuing
a course of academic, professional or vocational training on a full-time basis.
Against those requirements, the only issue arising on this application is
whether the post-secondary institution that the Applicant had been enrolled in
and attending since before the age of twenty-two (22) was “accredited” by the
relevant government authority.
[16]
The
shorter Oxford English Dictionary defines “accredited” to mean “furnished
with credentials; authoritatively sanctioned”. It does not equate to
“recognized” in some informal sense. Bearing in mind that the onus in the
circumstances here before the Court is on the Applicant to establish that she
fulfills the criteria that entitle her to a visa to enter Canada, I am
satisfied that, on a standard of review of reasonableness simpliciter,
and taking into account the totality of evidence before the decision-maker, the
decision-maker made no reviewable error in determining that Aptech was not a
post-secondary institution accredited by the relevant government authority in
India. In the material provided post-interview by the Applicant, Aptech made no
such claim. The decision-maker attests that no such claim is made on Aptech’s
web-site. The fact that graduates of Aptech may be “recognized” by certain
government institutions in India as possessing certain academic or
technical qualifications for employment simply does not equate to “accreditation
by a relevant government authority”.
Alleged Reliance on Extrinsic Evidence
[17]
In
Dasent v. Canada (Minister of Citizenship and Immigration), Justice
Rothstein, then of the predecessor of this court, wrote at paragraphs 20 and 21
of his reasons:
…In the case at bar,
having regard to the words “not brought forward by the applicant” used by
Hugessen J.A. to qualify the term “extrinsic evidence”, and his reference to Muliadi,
I interpret the term “extrinsic evidence not brought forward by the applicant”
as evidence of which the applicant is unaware because it comes from an outside
source. This would be evidence of which the applicant has no knowledge and on
which the immigration officer intends to rely in making a decision affecting
the applicant. …
The relevant point as I
see it is whether the applicant had knowledge of the information so that he or
she had the opportunity to correct prejudicial misunderstandings or
misstatements. The source of the information is not of itself a
differentiating matter as long as it is not known to the applicant. The
question is whether the applicant had the opportunity of dealing with the
evidence. This is what the long-established authorities indicate the rules of
procedural fairness require. In the well known words of Lord Loreburn L.C. in Board
of Education v. Rice…:
They
can obtain information in any way they think best, always
giving
a fair opportunity to those who are parties in the controversy
for
correcting or contradicting any relevant statement prejudicial to
their
view.
…
[citation
omitted]
[18]
Here
the alleged extrinsic evidence is what is contained, or not contained, on the
Aptech website which was referred to by the decision-maker. In fact, it is
information not on that website since the website reflected nothing that would
indicate that Aptech is a post-secondary institution that is accredited by a
relevant government authority. In effect then, reference to the Aptech website
did nothing more than confirm the decision-maker’s preliminary conclusion.
[19]
In
Hussain v. Canada (Minister of Citizenship and Immigration), Justice
Evans then of the Trial Division of the Federal Court of Canada, in the context
of a discussion on reliance on “local knowledge” which he found to equate to
extrinsic evidence, wrote at paragraph 35 of his reasons:
In this context it is
important to bear in mind the principle objectives of the administration of
immigration control. The first is to facilitate the entry into Canada of persons
who meet the requirements set out in the Immigration Act and Regulations. The
second is to ensure that those who do not are excluded. Both objectives are of
equal importance, and neither is likely to be achieved if visa officers do not
adopt a procedure for determining visa applications that is calculated to
produce accurate and thoughtful decisions. On the other hand, officers should
not be burdened by procedural duties imposed by this Court that prevent them
from processing applications in an expeditious and cost-effective manner.
I find the foregoing quoted paragraph to be
particularly instructive on the facts of this matter.
[20]
The
Applicant was provided at interview with notice of the interviewer’s concerns
regarding whether or not Aptech was a government-accredited post-secondary
institution. She was offered an opportunity to respond at interview and,
according to the CAIPS notes, provided no substantive response. The onus was on
her to satisfy the decision-making officer that Aptech was such an institution.
She provided further information post-interview. The Aptech website would have
been a publicly accessible record and we have no evidence as to whether she in
fact accessed it. In the event, it bore no information that would have been of
use to her. In the foregoing circumstances, to find that website to be extrinsic
information of a nature that would have required the decision-making officer to
advise the Applicant that he had accessed it would, I am satisfied, in the
words of Justice Evans above quoted, be to burden visa officers with procedural
duties that would prevent them, or at least inhibit them from “…processing
applications in an expeditious and cost-effective manner”, in the circumstances
here at issue, to no evident avail.
[21]
On
the facts of this matter, I find no breach of procedural fairness in the
failure of the decision-making officer to disclose to the Applicant that he had
accessed the Aptech website in arriving at the decision under review.
He or she who hears must
decide
[22]
As
earlier indicated, the officer who interviewed the Applicant and other members
of her family was not the decision-maker. In fact, the interviewing officer did
not have the authority to make a decision in the nature of that which is here
under review.
[23]
In
Ayatollahi v. Canada (Minister of
Citizenship and Immigration), my colleague
Justice Snider wrote at paragraph 14 of her reasons:
The facts of this
applicant’s case can be distinguished from Patel, … where Tremblay-Lamer J.
found that the principle that “he who hears must decide” was violated when a
visa officer based his decision on the notes of an interview of the applicant
by another visa officer. Unlike in Patel, … the IPO [the interviewing officer]
had no authority under the Immigration Act to make the ultimate
decision; rather, that authority rested with the visa officer… . The IPO’s
role was to investigate the application and gather evidence to be used by the
visa officer. The fact that this evidence was gathered in an oral interview did
not require that the visa officer be a party to that interview (see e.g. Transmountain
Pipe Line Co. v. Canada (National Energy Board)…; Armstrong
v. Canada
(Commissioner of the Royal Canadian Mounted Police),…
[citations
omitted]
[24]
I
find the situation in this matter to be identical to that outlined in the
foregoing quotation. I am satisfied that, once again on the particular facts of
this matter, there was no breach of fairness or of the principle that he or she
who hears must decide.
CONCLUSION
[25]
Based
on the foregoing analysis, this application for judicial review will be
dismissed.
CERTIFICATION OF A
QUESTION
[26]
At
the close of hearing on this application for judicial review, I advised counsel
that I would reserve my decision, that I would in due course issue my reasons
and that thereafter counsel would be provided with an opportunity to make
submissions on certification of a question. Counsel for the Applicant will have
seven (7) days from the date of issuance of these reasons to provide written
submissions to the Registry and to counsel for the Respondent. Thereafter
counsel for the Respondent will have seven (7) days to provide written
submissions to the Registry and to counsel for the Applicant and thereafter,
counsel for the Applicant will have three (3) days for written reply, once
again to be provided to the Registry and to counsel opposite. Thereafter an Order
will issue.
“Frederick
E. Gibson”
Vancouver,
British Columbia
September
22, 2006
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