Date: 20100422
Docket: IMM-4661-09
Citation: 2010 FC 434
Ottawa,
Ontario, April 22,
2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
LI
WU SHA and QUAN SHA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants, Li Wu Sha and Quan Sha are father and son, respectively. They are
seeking to set aside a decision made under the Immigration and Refugee
Protection Act, R.S.C. 2001, c. 27, rejecting the inclusion of Quan Sha as
a dependent child on his father’s permanent residence application. The basis
for that rejection was the officer’s determination that the vocational school
Quan Sha was attending did not meet the requirements of the Immigration and
Refugee Protection Regulations, SOR/2002-227.
[2]
For
the reasons that follow, this application is allowed.
Background
[3]
The
applicants are citizens of China. In January 2008, Li Wu Sha applied for
permanent residence in Canada. He included Quan as a dependent child on
his application. At that time, Quan was 23 years-old and was in full-time
attendance in a graduate program at the University College London (UCL).
[4]
In
September 2008, the visa office requested proof of Quan’s full-time secondary
school enrolment since September 2007. The applicants provided documentation
of his enrolment at UCL, including a copy of the Master’s degree he was awarded
in June 2008. No information was provided of his schooling post-June 2008.
[5]
On
January 15, 2009, the visa office informed the applicants that Quan did not
meet the definition of “dependent child” in section 2 of the Regulations.
[6]
On
March 3, 2009, the visa office received further information regarding Quan’s schooling.
The letter confirms that he was enrolled at UCL and graduated on June 23,
2008. It states that he then had an “all too brief summer respite” and
returned to UCL on September 23, 2008 “where he personally received his MSc
Degree.” It goes on to state that Quan enrolled at Shanghai Winworld Academy,
a vocational college, on October 17, 2008, in full-time studies in JAVA EE
Computer Software Programming.
[7]
On
June 15, 2009, the visa officer requested an original China Academic Degrees
and Graduate Education Development Center (CADGEDC) report. His correspondence
states that he requires an “Original CADGEDC report to demonstrate that the
most recent school Sha Quan is attending is a recognized post secondary
academic institution.” CADGEDC is an organization that verifies Chinese
educational credentials, though there is some dispute between the parties
regarding its scope.
[8]
The
applicants responded on July 10, 2009 that a CADGEDC report would not be
forthcoming because it “only undertakes the accreditation and authentification
of academic degree certificates and related materials issued in China” (emphasis
in the original). The applicants further responded that Shanghai Winworld Academy, a
non-academic institution, was nonetheless accredited with the Ministry of
Education, and provided a copy of the license issued by the Ministry to the
school.
[9]
By
letter dated July 22, 2009, the officer determined that Quan was not a
“dependent child” within the meaning of the Regulations. The office informed
Li Wu Sha that Quan was therefore not eligible to be included on his
application for permanent residence. It is from this decision that the
applicants seek judicial review.
[10]
The
reasons for the officer’s conclusion can be found in the Computer Assisted
Immigration Processing System (CAIPS) notes, which form part of the decision.
The CAIPS notes show that the officer erroneously believed that Quan had ceased
his studies at UCL in September 2007, but this error is not material to the
decision under review.
[11]
In
responding to the submissions regarding Quan’s enrolment at Shanghai Winworld Academy, the officer
states “Proof of studies is insufficient.” The officer asked a subordinate
staff member to “send request giving applicant 45 days to submit a CADGEDC
demonstrating that the most recent school that SHA QUAN is attending is in fact
a recognized post secondary academic institution.”
[12]
In
responding to the applicants’ further submissions regarding the CADGEDC report,
the officer states:
LETTER FROM STEPHEN FIRST INDICATING THAT THEY [HE] DOES NOT PLACE MUCH RELIANCE IN CADGEDC.
HE ALSO INDICATES THAT THE INSTITUTE PI’S SON IS ATTENDING IS NOT REGISTERED
WITH CADGEDC. CONSULTANT ALSO INDICATES THAT THE INSTITUTE IS RECOGNIZED BY
THE MINISTRY OF EDUCATION (SHANGHAI) FOR THE PRC.
[13]
The officer did not
accept this response.
Issue in Dispute
[14]
The
issue in this application is whether
the officer erred in determining that Quan Sha did not meet the definition of
“dependent child” as described in section 2 of the Regulations.
Preliminary
Issue
[15]
The applicants also
raise a preliminary issue as to whether the respondent’s affidavits filed in
this application constitute new evidence and are therefore improperly before
the Court.
[16]
The
applicants submit that the respondent is attempting to introduce new evidence
that was not before the decision-maker. The applicants submit that the two
affidavits of Felicia Cheng should be given no weight. It was of interest that
the applicant did not raise the same objection with respect to the subsequent
affidavit of the decision-maker.
[17]
The
respondent submits that the material contained in these two affidavits is
background material on CADGEDC reports and not new evidence. The respondent cites
Chopra v. Canada (Treasury Board) et al. (1999), 168 F.T.R. 273 (T.D.)
for the proposition that general background information can be provided by way
of affidavit on judicial review even if it was not before the decision-maker.
[18]
In
my view, the respondent is correct. Absent prejudice to the opposing party,
and none is alleged by the applicant, affidavit evidence that provides
background information relevant to a material issue before the Court on
judicial review, may be put before the Court; such affidavit evidence does not
constitute impermissible new evidence.
[19]
In
this case, it is arguably important that the Court understand the scope of a
CADGEDC report when reviewing the decision because the officer focused solely
on the absence of such a report despite his request for its submission. The
two affidavits of Felicia Cheng as background evidence on the scope of a
CADGEDC report are therefore allowed.
Analysis of the Issue in
Dispute
[20]
The
applicants submit that the officer’s reasons were inadequate because they do
not explain why he determined that Quan Sha did not meet the definition of
“dependent child”. The applicants submit that the officer’s reliance on the
lack of a CADGEDC report was unreasonable because they had tendered evidence
that Quan Sha’s school was accredited by the Ministry of Education. The
applicants further submit that the officer confused the definition of
“dependent child” with an assessment of educational credentials appropriate in
the Skilled Worker context. The applicants contend, citing Yao v. Canada (Minister of
Citizenship and Immigration), 2009 FC 114, that the respondent’s manual
(specifically sections 14 and 15 of OP2) gave them a legitimate expectation
that they would be given an opportunity to respond to any concerns the officer
had regarding the school.
[21]
The
respondent submits that the officer’s reliance on the applicant’s response to
his CADGEDC report request was reasonable. The respondent submits that any
legitimate expectation was met when the officer requested a CADGEDC report from
the applicants to verify the school’s credentials. The respondent submits that
the applicants had the burden of proving that the son met the definition in the
Regulations and that they did not meet this burden.
[22]
Section
2 of the Regulations defines “dependent child” as follows:
|
“dependent child”, in respect of a
parent, means a child who
(a) has one of the following
relationships with the parent, namely,
(i) is the biological child
of the parent, if the child has not been adopted by a person other than the
spouse or common-law partner of the parent, or
(ii) is the adopted child of
the parent; and
(b) is in one of the
following situations of dependency, namely,
(i) is less than 22 years of
age and not a spouse or common-law partner,
(ii) has depended
substantially on the financial support of the parent since before the age of
22 — or if the child became a spouse or common-law partner before the age of
22, since becoming a spouse or common-law partner — and, since before the age
of 22 or since becoming a spouse or common-law partner, as the case may be,
has been a student
(A) continuously enrolled in
and attending a post-secondary institution that is accredited by the relevant
government authority, and
(B) actively pursuing a
course of academic, professional or vocational training on a full-time basis,
or
(iii) is 22 years of age or older
and has depended substantially on the financial support of the parent since
before the age of 22 and is unable to be financially self-supporting due to a
physical or mental condition.
|
«enfant à charge» L’enfant qui:
a) d’une part, par rapport à
l’un ou l’autre de ses parents:
(i) soit en est l’enfant
biologique et n’a pas été adopté par une personne autre que son époux ou
conjoint de fait,
(ii) soit en est l’enfant
adoptif;
b) d’autre part, remplit
l’une des conditions suivantes:
(i) il est âgé de moins de
vingt-deux ans et n’est pas un époux ou conjoint de fait,
(ii) il est un étudiant âgé
qui n’a pas cessé de dépendre, pour l’essentiel, du soutien financier de l’un
ou l’autre de ses parents à compter du moment où il a atteint l’âge de vingt-deux
ans ou est devenu, avant cet âge, un époux ou conjoint de fait et qui, à la
fois:
(A) n’a pas cessé d’être
inscrit à un établissement d’enseignement postsecondaire accrédité par les
autorités gouvernementales compétentes et de fréquenter celui-ci,
(B) y suit activement à
temps plein des cours de formation générale, théorique ou professionnelle,
(iii) il est âgé de
vingt-deux ans ou plus, n’a pas cessé de dépendre, pour l’essentiel, du
soutien financier de l’un ou l’autre de ses parents à compter du moment où il
a atteint l’âge de vingt-deux ans et ne peut subvenir à ses besoins du fait
de son état physique ou mental.
|
[23]
The
relevant provision is subsection 2(b)(ii). Since Quan Sha was over the age of
22 at the relevant time, he could only be considered a “dependent child” of his
father if he had been continuously enrolled in and attending a post-secondary
institution that is accredited by the relevant government authority, and was
actively pursuing a course of
academic, professional or vocational training on a full-time basis since the
age of 22. It is clear that Quan Sha’s enrolment at UCL satisfied this
requirement up to mid-2008. However, after Quan graduated from UCL, he had to
be enrolled and actively pursuing full-time education elsewhere to continue to
meet this definition.
[24]
In
Yao, Gauthier J.
reviewed the duty of fairness in the circumstances of the case at bar and
concluded at para. 24 that the duty “was at the lower end of the spectrum.”
Nonetheless, she held that there is at least a minimal duty to provide reasons
as to why the officer determined that a given applicant was not a “dependent
child” within the meaning of the Regulations.
[25]
In
my view, when the officer’s reasons are read as a whole, including the CAIPS
notes, it is apparent why the officer rejected Quan Sha as a “dependent
child”. The officer was clearly concerned with whether his school met the
requirements described under the “dependent child” definition in the
Regulations. The Regulations require the post-secondary institution to be
“accredited by the relevant government authority.” The officer’s request for a
CADGEDC report was in relation to this accreditation.
[26]
Consequently,
the reasons are adequate, satisfy the duty of fairness, and do not constitute a
reviewable error.
[27]
The
applicants were given an opportunity to respond to the officer’s concerns
regarding Quan Sha’s school when he asked for a CADGEDC report. If the officer
was not satisfied with the applicants’ response to this request, which he
suggests in his affidavit, he was not under an obligation, in those
circumstances, to seek further clarification from the applicants. In my view,
the officer did not breach the duty of fairness, as was alleged, by failing to
meet the applicants’ legitimate expectations.
[28]
What
is problematic, in my view, is the officer’s reliance on the lack of a CADGEDC
report. Neither the Regulations nor the respondent’s guidelines stipulate how
an officer is to determine whether a post-secondary institution “is accredited
by the relevant authority.”
[29]
The
officer stated in his affidavit that a CADGEDC report was sought because this
“is the recognized institution that we rely on as per section 73 of the
[Regulations]”. Section 73 of the Regulations defines terms that apply only to
the Skilled Worker provisions of the Regulations. This application is not a
Skilled Worker application.
[30]
In
this case, the officer requested a CADGEDC report “to demonstrate that the most
recent school Sha Quan is attending is a recognized secondary academic
institution.” The applicants provided an answer as to why the report would not
be forthcoming, and tendered evidence that Quan’s school was “accredited by the
relevant government authority.” The officer in his reasons failed to explain
why this evidence, a copy of the school’s license from the Ministry of
Education, was rejected. The officer states in cross-examination:
I did not establish whether or not this was an accredited school.
After the applicant’s refusal to submit CADGEDC, I did not give further
consideration to the academic credentials, the educational credentials.
[31]
The
officer, in cross-examination, states that he noted the school’s license that
the applicants submitted; however, the officer failed to consider whether this
was sufficient proof of accreditation. He appears to have rejected it out of
hand as it was not the CADGEDC that had been requested. The officer seems to
have formed the view, most likely because he confused the assessment of educational credentials on
a Skilled Worker application with the definition of dependent child, that the
credentials of the school could only be established through the CADGEDC report
he had requested.
[32]
The
officer failed to discuss whether the Ministry of Education was “the relevant
government authority” within the meaning of the definition of “dependent child”
in the Regulations, even though the officer states in cross-examination that
there are “various provincial and municipal level governments all across China that [sic]
accredits all types of schools.” The officer failed to provide any
justification in either his decision letter or his CAIPS notes indicating why
he rejected the applicants’ submissions. The officer states that after the
refusal to submit the CADGEDC report he did not consider the matter further.
In this respect, the decision was insufficiently justified and is therefore
unreasonable. On this basis, I allow the application.
[33]
Neither
party proposed a question for certification. I find that no question arises on
these facts that meet the test to be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1. This
application is allowed and the application is referred to a different officer
for determination; and
2. No
question is certified.
“Russel
W. Zinn”
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