Date: 20120529
Docket: IMM-8022-11
Citation: 2012 FC 661
Toronto, Ontario, May 29,
2012
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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DORIS NYARKO
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a
decision of the Immigration Appeal Division of the Immigration and Refugee
Board [the Board] dated October 13, 2011. The decision denied the applicant’s
appeal from the refusal of her son’s application for permanent residence as a
member of the family class.
[2]
The
applicant Doris Nyarko is a Canadian permanent resident and a permanent
resident of Ghana. In July
2009, she and her daughter came to Canada after being sponsored
by her husband. Her two sons remained in Ghana until the
applicant was settled.
[3]
On
July 19, 2010, she applied to sponsor her sons for permanent resident status.
One of her sons was issued a permanent resident visa, but the application of
her other son Julius Appiah [Julius] was refused on the basis that he was not a
dependent.
[4]
She
appealed on his behalf, and it is the refusal of that appeal that is now under
review.
[5]
The
Board held the hearing in writing pursuant to Rule 25 of the Immigration
Appeal Division Rules, as it found that there was no need for oral
testimony and neither party objected.
[6]
The
Board determined that Julius is not a dependent because he is not enrolled in
post-secondary education. It noted that Julius was 23 at the time of the
sponsorship application and that he had been continuously enrolled in and
attending an education institution since before he was 22 years of age. However,
since both of the institutions that Julius attended were high schools, the
Board found that he was not a dependent child within the meaning of section
2(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227
[the Regulations].
[7]
The
Board also noted discrepancies in the documentation provided by the applicant
and expressed concern that the certificate she submitted which was titled “West
African Examinations Council Basic Education Certificate Examination” was not
genuine.
[8]
The
Board therefore denied the appeal.
[9]
The
applicant alleges a breach of procedural fairness because she was not afforded
the opportunity to be informed of the Board’s concerns and to address them.
However, given her admission that Julius is attending a high school, any such
breach is immaterial and has no impact on the outcome of the application. As
the Supreme Court has affirmed the principle that the Court may refuse to grant
relief where a breach of procedural fairness is “purely technical and occasions
no substantial wrong or miscarriage of justice” (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at para 43), I need not address this issue further.
[10]
Decisions
of the Board on appeal as to whether a foreign national is a sponsor’s dependent
child are reviewable on the reasonableness standard (Canada (Minister of
Public Safety and Emergency Preparedness) v Martinez-Brito, 2012 FC
438, 2012 CarswellNat 1060 at para 16).
[11]
The
applicant submits that the Board erred by failing to consider the central
issue: whether the definition of “post-secondary” in the Regulations includes
high school. In the respondent’s words, the applicant argues that “in light of
the reunification provisions in [the Act] the intent could not possibly have
been to disqualify someone from being considered a dependent because they had
not yet completed high school.”
[12]
I
disagree. As the respondent has argued, it would have been quite easy for
Parliament to include secondary school students in the definition of dependents
if that was its intention. Although the Regulations do not define the term
“post-secondary”, the Minister’s operational manual Overseas Processing 2 –
Processing members of the family class notes several questions that should
be considered in deciding whether a foreign national is a dependent child in
section 14, titled Procedure: Assessment of claim that a dependent child is
a student. One of these questions is “Is the student enrolled in a program
given at an educational institution such as a university, college or other
educational institution?” (my emphasis, subsection 14.2). Thus it is
obvious that the term “post-secondary” does not include high school. I note as
well that this interpretation is consistent with common usage in Canada of the
term “post-secondary” in relation to education, which is defined in the Canadian
Oxford Dictionary as “of or relating to education occurring after the
completion of high school.”
[13]
For
these reasons, the application is dismissed.
[14]
The
applicant proposed the following question for certification:
For the purpose of interpreting the
conditions set out in the definition of “dependent child” established under
clause 2(b)(ii)(A) of the Immigration and Refugee Protection Regulations,
SOR/2002-227, as amended, with respect to the phrase “post-secondary
institution”, can the Immigration Appeal Division take into consideration
whether secondary school can be incorporated into the definition of
“post-secondary institution”?
[15]
The
respondent argues that no certified question is necessary, as the definition of
“post-secondary institution” is self-evident and does not include secondary
school and as the proposed question does not extend beyond the facts of this
case or contemplate issues of general application. I agree. No question is
certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed.
“Danièle Tremblay-Lamer”
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