Docket:
IMM-3349-13
Citation: 2013 FC 1176
Ottawa,
Ontario, November 19, 2013
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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MANAV JALOTA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This is the judicial review of a decision
refusing Mr. Jalota’s application to restore his temporary resident status as a
student.
The
restoration application was denied because the Officer was not satisfied that
(a) the Applicant was a genuine temporary resident and student; (b) the Applicant
had sufficient funds; (c) he would leave Canada at the end of the
authorized study; and (d) the co-op component of his studies met some specified
criteria.
II. BACKGROUND
[2]
The Applicant is from India and obtained a study
permit valid until December 31, 2012.
[3]
Having arrived in Canada in January 2011, the
Applicant started at one college, transferred to another and finally to a
third. All of these transfers are permitted under his permit.
[4]
In September 2012 the Applicant applied for an
extension of his permit which was refused. The reason for refusal was the officer’s
belief that he was not a genuine student, which was stated in the following
strong terms:
You have submitted
documentation which lacks credibility as part of your application. This has
diminished the overall credibility of your submission.
[5]
This is a critical aspect of this whole matter
because the refusal does not say in what manner the documents lack credibility;
however, the credibility finding is part of the overall restoration file (it
was contained in the Tribunal Record as part of the material before the Officer
on the restoration matter).
[6]
In January 2013 the Applicant made an
application to restore status. In so doing, the Applicant followed the Document
Checklist – Student issued by Citizenship and Immigration Canada [CIC]. That
document is divided into three parts: the first part applies to “All
Applicants”, the second applies to a “Study Permit” and the third applies to
“Restoration of Temporary Status”.
[7]
Under the Restoration part of the Checklist, CIC
asks for:
1.
photocopies of passport pages (also requested
under Study Permit);
2.
copy of current immigration document; and
3.
documents related to loss of status.
[8]
In the covering letter for the application to
restore, the Applicant enclosed transcripts and attendance records. He went on
to note that he had funds to carry him through the school semester and offered
to supply evidence if required.
[9]
The application for restoration was denied for
the reasons earlier described.
[10]
The Global Case Management System [GCMS]
identified the Officer’s concerns:
•
failure to submit proof of funds;
•
failure to submit transcripts from previous
studies;
•
absence of studies from August 2011 to January
2012; and
•
failure in a college letter of acceptance to
give certain details of co-op program’s importance.
There is nothing
in those Notes concerning the failure to leave Canada at the end of the study
permit.
[11]
The Respondent concedes that there was a breach
of procedural fairness when the Officer failed to request prior transcripts but
based the decision on the failure to produce those transcripts.
[12]
The Respondent contends that despite the breach
of procedural fairness, the decision is reasonable based on the absence of
financial information. The Respondent seeks to carve out financial information
as a discrete ground for the decision which can breathe life into an otherwise
infirm decision.
III. ANALYSIS
[13]
It is well accepted that a breach of natural
justice in decision making is an error of law and jurisdiction which results in
the whole decision being quashed. There are very limited and exceptional
circumstances where a breach will not have that result – such as where the breach
could not have affected the result (Lahocsinszky v Canada (Minister of Citizenship and Immigration), 2004 FC 275, 129 ACWS (3d) 769).
[14]
In the present instance the breach is the grounds
for one of the findings against the Applicant. It cannot be said that the
breach did not affect the result. This is not a case where it is futile to send
the matter back for redetermination because the result is inevitable (Mobil
Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR
202).
[15]
Therefore, on that ground alone, this judicial
review will be granted.
[16]
However, it is important to address the
Respondent’s claim that the absence of financial information was fatal to the
restoration application and therefore the decision should be sustained.
[17]
The Respondent’s own checklist does not ask for
any financial information per se as part of a restoration application,
although it is listed as a requirement for study permit applications. For
restoration applications, the key requirement is production of the documents
related to loss of status. If the Respondent wished to have financial or other
documents, it should have asked for them either in the Checklist or by
additional request. Any confusion in the Checklist lies at the feet of the
Respondent and it is a further breach of procedural fairness to have a
misleading document supplied to the public (Lim v Canada (Minister of
Citizenship and Immigration), 2005 FC 657, 272 FTR 293).
[18]
This breach is particularly so where the
Applicant confirmed his financial situation and informed the Respondent that he
was prepared to provide evidence if asked. It is no answer to say that section
182 of the Immigration and Refugee Regulations, SOR/2002-227, requires,
on a restoration application, that an applicant meet the initial requirements
for their stay. The Applicant met the initial requirements at the time of his
first application, the evidence was in the file and there was nothing to
suggest that anything had changed.
[19]
The core problem with this matter is the
requirement to produce documents related to the loss of status – as specified
in the Checklist. It requires one to determine the cause of the loss of status.
[20]
It is not clear from the decision denying the
extension of the permit – the cause of the loss of status – what the real
problem was with the Applicant’s documents. It is unfair to leave a party with
questions as to what was incredulous about his documents. Unfortunately, in
this case, the Applicant never asked.
[21]
However, since the stated reason for refusal was
concern about the Applicant being a genuine student, not that he lacked
sufficient funds, it is reasonable to conclude that the loss of status related
to academic matters not financial. It was therefore reasonable for the
Applicant to address those issues in his restoration application – which he
did.
[22]
It is incumbent on the Respondent to state the
reasons for loss of status in sufficient terms that an applicant can address
those reasons in any further relief he may claim.
[23]
The Respondent acknowledges that on this issue,
it breached procedural fairness in respect to not requesting earlier
transcripts. The problem is deeper than that. The core unfairness lay in the
reasons for denying the extension which then led to the problems in addressing
the restoration application.
[24]
The Respondent’s reliance on financial issues is
a new-found basis; not the basis for the original loss of status.
[25]
It is a breach of procedural fairness to rely on
a grounds not cited in the original decision without giving the Applicant notice
that this ground of financial sustainability is now at issue – just as it was a
breach of procedural fairness to not give notice that earlier transcripts were
required (a point the Respondent properly concedes).
[26]
These breaches of procedural fairness are
further grounds for quashing the decision denying restoration.
[27]
Lastly, the Respondent has put forward no basis
for concluding that the Applicant would not leave Canada. It is not sufficient
to just run through the various grounds for denial of the application, as if
checking off a list, without giving reasons for the conclusion.
[28]
As an overall conclusion, the allegation of lack
of credibility of the Applicant because of problems with his documents seems to
have permeated this file. If the Respondent had problems with the documents, it
was obliged to state what those problems were. Conclusionary statements are not
“reasons”.
IV. CONCLUSION
[29]
This judicial review will be granted, the
decision will be quashed, and the matter referred back to a different officer
for a fresh determination.
[30]
There are no questions for certification.
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