Docket: IMM-4312-15
Citation:
2016 FC 636
Ottawa, Ontario, June 8, 2016
PRESENT: The
Honourable Mr. Justice Boswell
|
BETWEEN:
|
|
VALENTINA
TORRES MARTINEZ
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Applicant, Valentina Torres Martinez, is a
19 year old citizen of Colombia. She arrived in Canada in August 2014 with a
study permit to complete her last year of high school at the Sacred Heart
School of Halifax. Her study permit, which was valid until September 15, 2015,
stated that: “unless authorized, prohibited from
engaging in employment in Canada.”
[2]
The Applicant graduated from the Sacred Heart
School in June 2015. Prior to graduating, she had been accepted to study at
Saint Mary’s University in Halifax for the fall academic term starting on
September 9, 2015; consequently, she applied in August 2015 to extend her stay
in Canada as a student. Her application was refused though in a letter dated
September 19, 2015; this letter stated that “it has
been determined that you have studied in Canada without authorization, and
therefore have violated a condition imposed under Regulation 183(3) of the Immigration
and Refugee Protection Regulations” [SOR/2002-207, the Regulations].
[3]
However, the Global Case Management System
[GCMS] notes, disclosed on October 21, 2015 pursuant to Rule 9 of the Federal
Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [Rules],
suggest in an entry dated September 20, 2015, that the Applicant’s application
to extend her study permit was refused not because she had studied without
authorization but, rather, because she had worked without authorization
as a supervisor at the Sacred Heart School’s after school care program for its
elementary students. Pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27, the Applicant now seeks judicial
review of the decision of the immigration officer [Officer] dated
September 19, 2015, refusing her application to extend her study permit;
she asks the Court to set aside the Officer’s decision and return the matter to
a different officer for re-determination.
I.
Issues
[4]
The issues raised by this application for
judicial review boil down to only one question for the Court to address: is the
Officer’s decision in this case reasonable?
[5]
It is not necessary to determine whether the
Applicant engaged in any authorized or unauthorized employment pursuant or
contrary to the Regulations. Although the Applicant believed the Social
Insurance Number she obtained authorized her to work while studying at the
Sacred Heart School, the SIN was issued in error by officials at Service
Canada.
II.
Standard of Review
[6]
The Applicant states explicitly, while the
Respondent does so implicitly, that the appropriate standard of review for the
Court’s review of the Officer’s decision is one of reasonableness. I agree
reasonableness is the appropriate standard of review.
[7]
This being so, the Court should not intervene if
the Officer’s decision is justifiable, transparent, and intelligible, and it
must determine “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190, at para 47. Those criteria are met if “the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes”: Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R.
708, at para 16.
[8]
Furthermore, the decision under review must be
considered as an organic whole and the Court should not embark upon a
line-by-line treasure hunt for error (Communications, Energy and
Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd., 2013
SCC 34, [2013] 2 S.C.R. 458, at para 54; see also Ameni v Canada (Citizenship
and Immigration), 2016 FC 164, at para 35, 263 ACWS (3d) 745). Additionally,
“as long as the process and the outcome fit comfortably
with the principles of justification, transparency and intelligibility, it is
not open to a reviewing court to substitute its own view of a preferable
outcome”; and it is also not “the function of
the reviewing court to reweigh the evidence”: Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paras 59 and 61.
III.
The Parties’ Submissions
[9]
The Applicant argues that it was unreasonable
for the Officer to refuse her application to extend her study permit on the
basis that she had studied in Canada without authorization. Since she had a
valid study permit for a secondary school and had not attended any other
academic institution, it was not reasonable to refuse her a study permit on
this ground. The Applicant says she only received the GCMS notes after starting
this application for judicial review, and those notes make no reference to any
unauthorized study. According to the Applicant, this is a significant and
troubling discrepancy because, if unauthorized employment was the reason for
denying the study permit, she could not have learned of that reason until after
commencing this proceeding. The Applicant says the reference to unauthorized
study in the refusal letter of September 19th is more than just semantics or a mere
clerical error.
[10]
The Applicant further argues that, unlike the
case in Wang v Canada (Minister of Citizenship and Immigration), 2006 FC
1298, 302 FTR 127 [Wang], the GCMS notes in this case do not support the
decision but, instead, contain a very different reason for why the application
was refused. The reason for the refusal as stated in the letter and that as
stated in the GCMS notes, when taken together, make the decision inconsistent.
According to the Applicant, the GCMS notes are supposed to clarify, not replace
or rewrite the decision. Furthermore, the Applicant notes that the refusal
letter is dated September 19, 2015, but that the GCMS notes were created and
entered on September 20, 2015, a day after the letter was sent to the
Applicant. The Applicant relies on De Azeem v Canada (Citizenship and
Immigration), 2015 FC 1043 at para 28, 258 ACWS (3d) 171 [De Azeem],
to argue that only those GCMS notes made prior to the decision letter can form
part of the decision because to do otherwise would allow an officer to rewrite
a decision after it has been communicated.
[11]
The Respondent argues that all there is at issue
in this case is a typographical or clerical error in the refusal letter, and
that the Applicant makes no argument to challenge the refusal on the basis of
unauthorized work. The Respondent asserts that the GCMS notes clearly show the
application was refused on the basis of unauthorized work, and the
jurisprudence holds that GCMS notes are accepted to be part of a decision.
According to the Respondent, in view of Wang, no error is committed
simply because the full reasons for the decision were not received until after
the Applicant started this application.
[12]
The Respondent further argues that the decision
was reasonable because the fact of the matter is that the Applicant did engage
in unauthorized work and she has not raised arguments that the decision on that
basis would be or was unreasonable. The Court, the Respondent argues, can and
should choose not to exercise its discretion to quash the decision when there
would be no purpose for so doing because any decision upon a redetermination
would be identical save for correction of the typographical error.
IV.
Is the Officer’s Decision Reasonable?
[13]
The decision in this case, as communicated to
the Applicant on September 19, 2015, clearly states that denial of the study
permit was on the basis of unauthorized study. However, it is equally clear in
the record that there was no such study. The permit issued to the Applicant for
purposes of her study at the Sacred Heart School was valid until September 15,
2015, some two months after she had graduated and some five weeks before she
applied to extend it so she could attend Saint Mary’s University. This
determination in the refusal letter dated September 19, 2015, is unintelligible
and incoherent in view of these facts and cannot be justified. Consequently,
the decision is unreasonable.
[14]
Although the GCMS notes make it equally clear,
at least to the Respondent, that the real and proper basis for denial of the
permit was the Applicant’s unauthorized employment, the discrepancy between the
refusal letter and the GCMS notes constitutes more than a mere typographical or
clerical error. Not only do the GCMS notes in this case post-date the decision
letter, but they also contradict the reason for refusal of the permit as stated
in that letter. These notes are unlike those which provided additional detail
to the formal decision letter considered by the Court in Wang:
[22] CAIPS notes [now called GCMS
notes] have been accepted as a constituent part of an administrative decision:
see Kalra v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 1199, 2003 FC 941 at para. 15, and Toma v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1000, 2006 FC 779 at para.
12. In this case, the CAIPS notes provide additional detail to the formal
decision letter and are clearly sufficient to inform the Applicant of the
reasons for the refusal of a visa. It is not open to the Applicant to complain
that the CAIPS notes were not provided in advance of the initiation of this
application because her counsel failed to request them at an earlier stage: see
Hayama v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 1642, 2003 FC 1305 at para. 14 and Liang v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1301 at para. 31 …
[15]
Like the Court in De Azeem (at para 28), “I am not prepared to conclude that all of the GCMS notes in
this case form part of the reasons.” While it is not clear from the Court’s
reasons in De Azeem whether the GCMS notes in that case post-dated the
decision under review, it is clear that only those notes which predated the
decision under review in De Azeem formed part of the reasons for the
decision. It would be problematic to allow the GCMS notes in this case to form
part of the reasons for denial of the study permit because, not only do they
post-date the decision letter, but also because they are inconsistent with and
contradict the reason stated in that letter. It is difficult to conceive how it
could ever be the case that GCMS notes which post-date a decision letter could
form part of that decision.
V.
Conclusion
[16]
The Officer’s decision in this case was not
reasonable. The Applicant’s application for judicial review is therefore
allowed. No question of general importance is certified. There is no award of
costs.
Email this Content