Date: 20090203
Docket: IMM-3675-08
Citation:
2009 FC 114
Vancouver, British Columbia, February 3, 2009
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
SHOU
MIN YAO and JUN YAO
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants, Shou Min Yao and his son Jun Yao, seek judicial review of the
decision of a visa officer to exclude Jun Yao from his father’s application for
permanent residence on the basis that Jun Yao does not meet the definition of
“dependent child,” found at section 2 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations). The applicants
allege that the visa officer misinterpreted the regulations and breached the
duty of fairness owed to them.
[2]
For
the following reasons, the Court agrees that this decision should be set aside.
Background
[3]
In
January 2006, Shou Min Yao applied to the Government of Quebec for selection as
a permanent resident under an investor program. On May 2, 2007, the Government
of Quebec issued a Selection Certificate under the A9 investor category for
three persons; Shou Min Yao, his wife Hiumin Liu and his son, Jun Yao. Shortly
thereafter, they filed their application for permanent residence under the
economic class with the Canadian Consulate General in Hong Kong.
[4]
Jun
Yao, following the completion of his senior high school and a certificate in
computer information management in Qingdao, China, has been
studying in Canada on a student
visa since March 2002. In December 2003, he turned 22. At that time, he was
enrolled and studying at the Language College of the Immigrant Services Society
of British Columbia (ISS), an institution registered with, and accredited by,
the Private Career Training Institutions Agency of British Columbia (PCTIA) in
the “Learn English Now: Advanced Level 2” program and “Level 8” of the “TOEFL
Preparation” program.
[5]
These
programs were completed on April 15, 2004. In the fall of 2004, Jun Yao started
the Arts and Science Program at Langara College, where he
studied until August 2007, obtaining a total of 67 credits in the process.
[6]
In
a letter dated June 13, 2008, the visa officer informed Shou Min Yao that Jun
Yao was not eligible for inclusion in his application as a “dependent child” on
the following grounds: i) ISS is not a post-secondary institution and the
courses in which Jun Yao was enrolled for the period from December 24, 2003 to
April 15, 2004 do not constitute “a course of academic, professional or
vocational training” within the meaning of s. 2 of the Regulations; ii) for the
period from April 16, 2004 to at least August 31, 2004, Jun Yao was not
enrolled and studying in any educational institution; and, iii) in the fall
semester of 2006, Jun Yao completed only one four-credit course at Langara
College and therefore was not pursuing a course on a full-time basis as defined
in subsection 78(1) of the Regulations or by Langara College.
[7]
The
applicants challenged this decision on two main grounds: i) that the visa
officer erred in her interpretation of the Regulations and their application to
the particular circumstances of the case, particularly in respect of the
meaning of “post-secondary institution,” “course of academic, professional or
vocational training,” and “full-time basis”; and, ii) the visa officer breached
her duty of fairness owed to the applicants by not providing them with a
reasonable opportunity to address her concerns about Jun Yao’s eligibility as a
dependent child and failing to provide adequate reasons.
Relevant legislation
|
Immigration
and Refugee Protection Regulations, SOR/2002-227
2. The definitions in this section apply
in these Regulations.
"dependent
child" , in respect of a parent, means a child who
…
(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
|
Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
2. Les définitions qui suivent
s’appliquent au présent règlement.
«enfant à charge» L’enfant
qui :
…
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,
|
Analysis
[8]
It
is trite law that the Court must intervene where there has been a breach of
procedural fairness, unless it is absolutely clear that the application for
permanent residence in respect of Jun Yao is bound to fail regardless of the
alleged breach (Patel v. Canada (Minister of Citizenship and Immigration),
2002 FCA 55, (2002), 288 N.R. 48 at paragraphs 5-7).
[9]
There
is no need to discuss the standard of review applicable to the first issue raised
by the applicants (see above, para. 7) given that the Court is satisfied that
there was a breach of procedural fairness and that it is not clear that the
decision would necessarily be the same once the applicants have had a chance to
address the concerns raised in the June 13, 2008 letter.
[10]
The
Regulations provide no definition of, nor any details in relation to, the exact
meaning of expressions such as “post secondary institution,” “a course of
academic, professional or vocational training,” or the notion of actively
pursuing studies on a “full-time basis.”
[11]
As
noted by the Federal Court of Appeal in Sandhu v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 79, [2002] 3 F.C. 280 at para. 17,
the requirements of dependency contained at s. 2 of the Regulations under the
definition of “dependent child” are a public recognition of the value which our
society and Parliament places on higher education. These requirements are
susceptible of being applied to a number of different countries and educational
systems. It is thus understandable that the definition of “dependent child” at
s. 2 of the Regulations refers to concepts that include some flexibility in
order to achieve its goals. In that sense, although an officer applies
objective criteria, he or she has some discretion in their application.
[12]
The
Operational Manual (the Manual), particularly OP 2, - Processing Members of the
Family Class – (OP 2) provides, at s. 14, some guidance as to what an officer
may look at to determine whether a person applying as a dependent child is a
full-time student. In particular, it lists potential questions that focus on
the program in which the student is enrolled, the student’s attendance record,
and whether these studies are the dominant activity in the life of the
applicant. It notes that obviously the officer must be satisfied that the
applicant is in attendance at the educational institution with the intention of
pursuing such studies and that, in this respect, the officer may look at grades
obtained, actual knowledge of the subjects studied, etc.
[13]
With
respect to “post-secondary institution”, s. 14.3 of OP 2 begins with the
principle that:
An institution must be accredited by a
relevant authority. Officers should normally accept a state-recognised
institution as an educational institution. In countries with licensed schools,
officers may require evidence of licensing or state recognition.
[14]
It
is only when there is no such authority or accreditation that officers are
advised to look through formal curriculum, examinations, granting of diplomas,
primary purpose of the institution, etc.
[15]
S.
14.4 of OP 2 is entitled: Institutions that are not “educational institutions”.
Although this particular expression is not used in the Regulations, it appears
to be used in OP 2 for better understanding of what constitutes a post-secondary
institution. The policy does not define what these institutions are, but rather
it focuses on what should not be recognized, such as: i) centres providing on
the job training; ii) institutions offering only correspondence courses; iii)
institutions that enrol students to enable them to qualify as a dependent son
or daughter under Canadian immigration regulations; and, iv) private training
establishments offering specialized courses not leading to a diploma or a
vocational certificate, for example, those offering courses such as computer
orientation, internet training, amateur painting, sculpting, sewing, etc.
[16]
With
respect to the procedure to be followed in assessing a claim that a dependent
child is a student, s. 14.1 of OP 2 provides that:
If the issuing institution is clearly not
an educational institution, authenticity may be immaterial. Officers need not
cite fraud as the reason an applicant is not a dependent son or daughter. Rely
on proof of ineligibility of the institution. If there is proof of fraud,
however, officers must cite it as well.
Inform applicants about any doubts in order
that they may have a chance to respond. If it appears that documents are false or
that the schools they attend are not educational institutions, tell them why. This
may be done during an interview or in writing.
[emphasis added]
[17]
Furthermore
at s. 15 of OP 2, entitled “Procedure: Ineligible dependent children”, one can
read:
If, after reviewing an application an
officer believes that claimed dependent children are not members of the family
class as described in [R2] they should:
·
give
the applicants a deadline for providing additional information about the
ineligible dependent children;
·
if by the
deadline the officer still believes that the dependent child is ineligible,
issue visas to the rest of the family and send a letter explaining why visas
cannot be issued to the ineligible family members.
[emphasis added]
[18]
The
content of the duty of fairness varies according to the context; in order to
determine the content of a particular visa officer’s duty in a given situation,
the Court must normally apply the factors set out by the Supreme Court of
Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817 (Baker).
[19]
The
parties did not provide the Court with any detailed submissions on the Baker
analysis. Instead, they provided by consent four decisions where a Baker
analysis was performed in respect of decisions by visa officers in various
contexts. None are on all-fours with the present context, nor did they involve
the determination of the status of a “dependent child” pursuant to the
definition of this term contained at s. 2 of the Regulations.
[20]
The
nature of the decision and the process followed in making it both point to a more
relaxed duty at the lower end of the spectrum. In effect, it is a purely
administrative process that has no resemblance to the judicial process. Although
the officer applies objective criteria, as mentioned he or she has a certain
degree of residual discretion in their application. There is no privative
clause and the decision is subject to judicial review without right of appeal.
In that respect, the Court notes that in Ha v. Canada (Minister of
Citizenship and Immigration) 2004 FCA 49, [2004] 3 F.C.R. 195, at para.
55, the Federal Court of Appeal held that the right to seek judicial review
cannot be equated with an appeal right and that the absence of such a right
suggests greater procedural protection.
[21]
With
respect to the importance of the decision, like many other decisions relating
to the acquisition of a permanent residency status, it involves the granting of
a privilege rather than a right. The applicants had the burden of establishing the
eligibility of Jun Yao. Still, the importance of the decision here is
somewhat greater than for temporary student visas where the privilege at stake
is simply the right to pursue studies in Canada for a
limited period and one may reapply a number of times, as for a visitor’s visa.
It concerns the privilege to immigrate to Canada with one’s
family. That said, this factor also points toward a relatively low duty of
fairness.
[22]
Did
the applicants have any legitimate expectations? As the Manual is made
available through the Citizenship and Immigration Canada (CIC) website and
particularly, given the lack of statutory definitions for many of the key
expressions used in the relevant provisions of the Regulations, it is
reasonable to infer that the applicants had a legitimate expectation that in
accordance with ss. 14 and 15 of OP 2: i) if the officer had an issue with the
eligibility of any institution Jun Yao attended in Canada, she would inform
them of this in order that they may have an opportunity to respond to
her concerns; and, ii) prior to issuing a final determination that Jun Yao was
ineligible, the applicants would be given an opportunity to provide additional
information within a set deadline.
[23]
According
to Baker, some consideration must also be given to the fact that CIC has
chosen a particular procedure. The Court will look at the general policy
described in the Manual as well as any explanation given by the visa officer as
to why he or she did not follow the general policy as compliance with the
Manual is not compulsory and the decision-maker always retains discretion not
to follow it in a given case. Although the Court should guard against imposing
a level of procedural formality that would unduly encumber the administration
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the
guidelines issued in the Manual by CIC are helpful to gauge what would or would
not render the system inefficient.
[24]
Having
weighed all the factors, the Court is of the view that the content of the duty
of fairness of the visa officer in this case was at the lower end of the
spectrum. However, despite the relaxed content of her duty, the Court finds
that, as held by Justice Andrew MacKay in Mir-Hussaini v. Canada (Minister
of Citizenship and Immigration), 2002 FCT 291, (2002), 219 F.T.R. 4 at para.
23, (in a very similar context to the one before the Court in the present
matter), although there is no obligation on the visa officer to provide a
running account to the applicants of concerns with any specific answers or
impressions they have given, the visa officer should provide an opportunity to
the applicants to comment when she comes to a conclusion based on her own
specific standards or test for interpreting the documentary evidence before her
with a view of applying the Regulations.
[25]
In
the present instance, this entails that, for example, before reaching any
conclusion based on s. 78 of the Regulations which is expressly said to apply
only to the part of the Regulations dealing with the “Federal Skilled Workers
Class”, the officer should have given an opportunity to the applicants to
comment in respect of her concerns that Jun Yao was not studying on a full-time
basis. The same reasoning would apply to the particular interpretation given by
the officer to Langara College policy, as this institution offers its
programs on a flexible three semester basis as opposed to a traditional two
semester basis. The Court notes however that in this respect, it is not clear
whether an ambiguity was created by the wording of the letter provided by the
applicants themselves for there is no explanation as to whether the definition
of full-time studies adopted by Langara College (nine credits per semester)
applies regardless of the number of semesters during which a student was
enrolled in courses over a year and despite the fact that a given program may
require him or her to take courses that were taught only during a particular
semester. Such difficulties in applying the criteria set out in the definition
of “dependent child” at s. 2 of the Regulations may well explain the process
chosen by CIC in ss. 14 and 15 of OP 2.
[26]
In
the same manner, the officer should have raised her concerns in respect of the “Learn
English Now” and “TOEFL Preparation” courses. Surprisingly, there is no
specific mention in s. 14 of OP 2 of such courses (English as a second language
or ESL) which are obviously of a different nature than sculpting, drawing or
internet training (examples cited in OP 2). If there are any doubts as to
whether or not they qualify as “courses of academic, professional or vocational
training,” the answer may well lie in whether or not these courses are part of
a study plan or are prerequisites to the ability of a foreign student to enrol
in a college or university in Canada. The application of the Regulations in
such respects raises important policy issues which should be clarified for it
appears to be dealt with differently depending on the officer. For example, it
appears that in Lee v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1012, [2005] 2 F.C.R. 3 at para.
36, question 26 cited therein, the visa officer viewed similar ESL courses in a
very positive light, noting that after taking ESL courses, the applicant’s
grades in that case improved dramatically and that the decision to go back to
language school was a very smart one.
[27]
That
said, there is another error that vitiates this decision and warrants putting
it aside is the lack of adequate reasons.
[28]
Although,
as previously mentioned, the duty of fairness is at the low end of the spectrum
in this case, there is no doubt that the officer must tell the applicants why
she rejected Jun Yao as a dependent child, for otherwise they cannot properly
exercise their right to seek judicial review. Obviously, in most cases these
reasons will be brief and can be supplemented by the Computer Assisted
Immigration Processing System (CAIPS) notes. Nevertheless, as
held in Via Rail Canada Inc. v. Lemonde, [2001] 2 F.C. 25 at para. 19 (C.A.), they must be sufficient to enable
the parties to assess possible grounds for judicial review and to allow the
Court to determine whether the decision-maker erred.
[29]
When
the parties argued before this Court the merits of the decision itself they
were approaching it from a very different angle. For example, the applicants
were focusing on the accreditation by the PCTIA (the successor of the Private
Post-Secondary Education Commission of BC) of ISS while the respondent
was defending the decision based on the lack of evidence provided with respect
to the curriculum of ISS and other documentation required when there is no
accreditation by a relevant authority and an officer is looking at an alternate
method of determining eligibility.
[30]
It
became very clear that the Court would have to speculate as to why the officer
concluded that ISS was not a post-secondary institution. The same is true in
respect of whether or not the “Learn English Now” and “TOEFL Preparation” courses
fell within the meaning of the expression used in clause (b)(ii)(B) of
the definition of “dependent child” at s. 2 of the Regulations.
[31]
Based
on the foregoing, the Court finds that the decision did not disclose adequate
reasons.
[32]
The
parties did not submit any questions for certification and the Court is
satisfied that this case turns on its own unique facts. No question will be
certified.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that the application is granted. The decision
dated June 13, 2008 is set aside. The matter shall be redetermined by a
different officer who shall provide an opportunity to the applicants to submit
additional material or attend an interview.
“Johanne
Gauthier”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3675-08
STYLE OF CAUSE: SHOU
MIN YAO AND JUN YAO V. THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF
HEARING: Vancouver, British Columbia
DATE OF
HEARING: January
14, 2009
REASONS FOR ORDER
AND ORDER: GAUTHIER J.
DATED: February
3, 2009
APPEARANCES:
|
Mr. Dean D.
Pietrantonio
|
FOR THE
APPLICANT
Barrister and
Solicitor
|
|
Ms. Esta
Resnick
|
FOR THE
RESPONDENT
Department of
Justice
|
SOLICITORS
OF RECORD:
|
Mr. Dean D.
Pietrantonio
550 –1130 West
Pender Street
Vancouver, British Columbia
V6E 4A4
Fax: (604)
331-8573
|
FOR THE
APPLICANT
Barrister and
Solicitor
|
|
Ms. Esta
Resnick
Department of
Justice
900-840 Howe
Street
Vancouver, British
Columbia
V6Z 2S9
Fax: (604)
666-2639
|
FOR THE
RESPONDENT
Department of
Justice
|
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