Date: 19990708
Docket: IMM-3203-98
BETWEEN:
CISLYN BERNICE KERR ROCHESTER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.
[1] In July 1996 Evette Sherene Mitchell, a citizen of Jamaica, applied to the Canadian High Commission in Kingston for a visa to enter Canada as a member of the family class, namely the dependent daughter of Cislyn Bernice Kerr Rochester, the applicant in this proceeding. Ms. Mitchell was born in February 1976 and so was 20 years old when she made her visa application.
[2] In a letter dated December 1996 the visa officer refused the application on the ground that she was not satisfied that Ms. Mitchell fell within the relevant part of the statutory definition of a "dependent daughter" contained in paragraph 2(1)(b)(i) of the Immigration Regulations, 1978 S.O.R./78-172. That is, since the age of 19 Ms. Mitchell has not been a full-time student "continuously enrolled and in attendance in" an "academic, professional or vocational program at a university, college or other educational institution."
[3] As Ms. Mitchell"s sponsor Ms. Rochester appealed against this decision to the Immigration Appeal Division on the ground that the visa officer had erred in concluding that some of the education or training that Ms. Mitchell had received did not meet the statutory criteria set out above. In June 1998 the Appeal Division dismissed the appeal because the presiding member was not satisfied that the evidence established on the balance of probabilities that Ms. Mitchell had been enrolled as a full-time student in a qualifying programme at an educational institution for the relevant length of time.
[4] Ms. Mitchell turned 19 years of age in February 1995. She therefore had to demonstrate that from that date until the Appeal Division"s decision in June 1998 she had been continuously enrolled in and had attended as a full-time student an academic or vocational programme at an educational institution. However, subsection 2(7) of the Regulations relaxes this requirement somewhat by providing that a person who interrupts her studies for no more than twelve months is not thereby considered to have ceased to have continuously pursued a course of study.
[5] In this case there were two periods in which neither the visa officer nor the Appeal Division was satisfied that Ms. Mitchell was enrolled in a programme of study within the definition of paragraph 2(1)(b)(i): the months August 1995 to February 1996, and September 1996 to August 1997. Since neither of these periods exceeds twelve months, if I am satisfied that the Appeal Division committed a reviewable error with respect to either, then its decision must be set aside. I shall deal with each in turn.
1. August 1995 to February 1996
[6] The evidence before the visa officer was that during this period Ms. Mitchell attended classes between the hours of 3 p.m. and 6 p.m. on Mondays to Thursdays at the Elim Agricultural School, which is an educational institution. In addition, between the hours of 8 a.m. and 3 p.m., five days a week, Ms. Mitchell attended sewing classes with up to four other people at the house of a Ms. Dixon. These classes appear to have been affiliated with the Elim Agricultural School and sponsored by the Minister of Labour Skills Development.
[7] In her CAIPS notes the visa officer stated that there was little detailed information about these classes: there was no evidence of a curriculum, a structured apprenticeship, report cards or certificates of completion. Ms. Mitchell informed the visa officer that she paid for the fabric that she used and sold the finished garments that she made; she had learned to thread the machine, to sew button holes and to make collars and hems.
[8] The visa officer concluded that this sewing programme did not qualify under paragraph 2(1)(b)(i) because it was more like a business than an educational programme, and Ms. Dixon"s home was not an "educational institution".
[9] In the reasons for decision the presiding member of the Appeal Division set out the gist of the evidence before the visa officer and concluded that
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this evidence considered all together is insufficient to show on a balance of probabilities that Evette [Mitchell] attended a programme in accordance with the Regulations. In other words, it has not been demonstrated on balance that Evette was enrolled as a full-time student or that the programme was an academic, professional or vocational one at a university, college or other educational institution. |
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[10] Counsel for Ms. Mitchell conceded that on the evidence before the Appeal Division it was open to the presiding member to reach the conclusion that during this period Ms. Mitchell was not enrolled in a programme that qualified within paragraph 2(1)(b)(i). Her attendance at the afternoon classes held at the Elim Agricultural School did not make her a full-time student, and on the evidence the sewing classes could be regarded either as a business rather than education or, even if they were educational in nature, as not being held at an educational institution.
[11] Rather, counsel"s complaint was that the presiding member"s reasons were inadequate. In particular, it was not clear whether the member had found that the sewing classes did not qualify because they were work not education, or because they were not held in an educational institution. The presiding member did not spell out precisely why Ms. Mitchell"s attendance at Ms. Dixon"s home and the afternoon classes did not satisfy the statutory criteria.
[12] In my opinion counsel is requiring the Appeal Division to meet too high a standard in its reasons for decision. The reasons must be read as a whole and in light of the material before the presiding member, including the visa officer"s CAIPS notes, and are not required as a matter of law to set out in full and explicitly the reasoning that led to the decision.
[13] It seems clear to me, especially from the words underlined in the Appeal Division"s reasons for decision that I quoted in paragraph 9, that the presiding member accepted both the evidence before the visa officer and her conclusions. That is, in the absence of further details the sewing classes did not qualify under paragraph 2(1)(b)(i) because they were not held at an educational institution. There is nothing in the record before me to suggest that counsel representing Ms. Mitchell in the Appeal Division had developed an argument that Ms. Dixon"s home was an educational institution which the presiding member ought to have addressed in the reasons for decision.
[14] Given this conclusion, it was not necessary for the presiding member also to consider the other basis of the visa officer"s decision, namely that the classes were more like a business than an educational programme.
[15] Thus, I am satisfied that the material before the presiding member was sufficient in law to support the conclusion reached about the sewing classes, and that the reasons given were adequate in law to explain the basis of the decision.
[16] Accordingly, in the period August 1995 to February 1996 Ms. Mitchell did not satisfy paragraph 2(1)(b)(i) because the only qualifying programme in which she was enrolled was of a part-time nature.
2. September 1996 to August 1997
[17] Evidence was adduced before the Appeal Division that during this period Ms. Mitchell was pursuing a two year business course as a student at the Evening School Institute at a high school. Ms. Rochester stated that her daughter attended classes daily from 6 p.m. to 9 p.m. In the absence of further details, the presiding member concluded that attendance at this course did not make Ms. Mitchell a full-time student, and therefore she had not met the requirement of paragraph 2(1)(b)(i).
[18] Counsel"s objection here was that the presiding member also noted that Ms. Mitchell had not mentioned her attendance in this programme in her visa application or at the interview with the visa officer. The member seemed to infer from these omissions that the programme therefore did not meet the requirements of the Regulations.
[19] If there had been evidence indicating that the evening classes constituted a full-time programme of study it might have been an error of law for the presiding member to have decided that they were not, simply because Ms. Mitchell had not mentioned them previously. However, the evidence before the Appeal Division was fully consistent with the conclusion that the evening programme was indeed of a part-time nature.
[20] Accordingly, the presiding member committed no error of law by appearing to infer the non-compliance of the programme with the Regulations from Ms. Mitchell"s failure to mention earlier her enrollment in it.
[21] For these reasons, the application for judicial review is dismissed.
"John M. Evans"
J.F.C.C.
Toronto, Ontario
July 8, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3203-98
| STYLE OF CAUSE: CISLYN BERNICE KERR ROCHESTER |
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
DATE OF HEARING: WEDNESDAY, JULY 7, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: EVANS J.
DATED: THURSDAY, JULY 8, 1999
APPEARANCES: Mr. Arthur Weinreb
For the Applicant
Mr. Ian Hicks
For the Respondent
SOLICITORS OF RECORD: Arthur Weinreb
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990708
Docket: IMM-3203-98
Between:
| CISLYN BERNICE KERR ROCHESTER |
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
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