Date: 20110224
Docket: IMM-1449-10
Citation: 2011
FC 219
Ottawa, Ontario, February 24, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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HARJIT KAUR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review
of a decision of an officer of the Citizenship and Immigration Canada Case
Processing Centre (the officer), dated February 10, 2010, wherein the officer
refused to restore the applicant’s temporary resident status, work permit and
study permit.
[2]
The applicant requests that the decision of the officer be set
aside and the claim remitted for redetermination by a different officer.
Background
[3]
Harjit
Kaur (the applicant) is a citizen of India born October 3, 1986.
[4]
The
applicant came to Canada on April 18, 2007 to
study fashion design full-time at Fanshawe College in London, Ontario.
[5]
The
applicant renewed her study permit in November 2008. Her new study permit was
valid until July 2009.
[6]
The
applicant was expected to graduate from Fanshawe College on April 30, 2009. However, on May 8, 2009,
she was informed that due to her unsatisfactory academic standing she was not
eligible to graduate as her grade point average was below the program
requirements.
[7]
The
applicant was able to upgrade her marks in four courses by submitting
additional assignments over the summer of 2009. She was supposed to complete
these assignments by July 24, 2009. However, as several teachers were absent
for the summer, she was given until August 22, 2009.
[8]
The
applicant was informed on August 27, 2009 that she had successfully upgraded
her courses and would receive her official transcripts. The applicant was
provided with her diploma and transcripts on September 4, 2009.
[9]
The
applicant submitted her application for a work permit on September 4, 2009.
This application was returned for insufficient fees. She reapplied for
restoration of her temporary resident status and a further work and study
permit on November 10, 2009. This application was refused on February 10, 2010
and is the basis for this judicial review.
Officer’s Decision
[10]
The
officer found that the applicant’s application was not mailed within the
prescribed 90 day period and therefore determined that she is not eligible for
a work permit for post-graduation employment. The officer determined that the
90 day period began from the date on the applicant’s diploma, April 30, 2009.
[11]
The
officer found that the applicant did not meet the requirements of a study
permit. The officer was not convinced that the applicant was a genuine student.
The officer had concerns about the credibility of the documents received as
several letters from officers at Fanshawe College conflicted as to the
applicant’s official graduation date. One letter indicated July 24, 2009, the
other August 22, 2009. These letters further conflicted with the diploma from
the Registrar of the college which indicated that the graduation date was April
30, 2009.
[12]
Finally,
the officer was not convinced that the applicant met the requirements of the
Act or the Immigration and Refugee Protection Regulations, SOR/2002-227, and refused to extend the applicant’s
temporary resident status.
Issues
[13]
The
applicant submitted the following issues for consideration:
1. What is the
appropriate standard of review?
2. Did the officer err
in finding that the applicant passed the 90 day time limit for the application
of a post-graduation work permit?
3. Did the officer err
in finding that the applicant was not a bona fide student?
4. Did the officer
breach the requirement of procedural fairness in making his decision?
Applicant’s Written
Submissions
[14]
The
applicant submits that the 90 day period in which her application for a
post-graduation work permit had to be submitted should have commenced on the
day the applicant actually received her official transcripts, September 4,
2009, as the applicant was not eligible to graduate on April 30, 2009. The
applicant submits that the college has a policy of not changing the date marked
on students’ diplomas, which is why the diploma indicates that she graduated on
April 30, 2009. Further, there is no evidence the officer considered the date
that the applicant received her final marks in determining that the application
was out of time.
[15]
The
applicant also submits that the officer erred in finding that the applicant was
not a bona fide student. This was an unreasonable finding given the
totality of the documents submitted by the applicant, including letters from
the college.
[16]
Finally,
the applicant submits that the officer breached the requirement of procedural
fairness by not informing the applicant of any doubts of concerns that the
officer had regarding the credibility of the applicant’s documents.
Respondent’s Written
Submissions
[17]
The
respondent submits that there was no breach of procedural fairness. The level
of procedural fairness afforded to foreign nationals who are temporary
residents is low.
[18]
The
respondent submits that the applicant has not provided sufficient evidence to
show that the first formal written notification concerning her ability to
graduate was provided to her on August 27, 2009, as she alleges. The date on
the applicant’s diploma is April 30, 2009. Given the conflicting letters
indicating that the applicant may have graduated on July 24, 2009 or August 22,
2009, it was not unreasonable for the officer to use the date on the
applicant’s diploma to determine when the 90 day period began.
[19]
Finally,
the respondent submits that the failure of an officer to bring to the attention
of an applicant the adverse conclusions that he or she may be drawing from the
documents submitted does not amount to a reviewable error.
Analysis and Decision
[20]
Issue
1
What is the
appropriate standard of review?
Where
previous jurisprudence has determined the standard of review applicable to a
particular issue, the reviewing court may adopt that standard (see Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[21]
The
standard of review which applies to the findings of fact made by an immigration
officer is that of reasonableness (see Dunsmuir above,
at paragraphs 47 and 53; De
Luna v. Canada (Minister of Citizenship and
Immigration), 2010 FC
726, 90 Imm. L.R. (3d) 67 at paragraph 12). However, any issues of procedural fairness, including the
right to be heard, will be reviewed on the correctness standard (see Khosa v. Canada (Minister of Citizenship and
Immigration), 2009 SCC
12, [2009] 1 S.C.R. 339 at paragraph 43).
[22]
I
will address Issue 4 first.
[23]
Issue
4
Did the officer breach the
requirement of procedural fairness in making his decision?
The applicant submits that the
officer was required to apprise her of any concerns regarding her application
so that she could respond to those concerns. The respondent submits that there
was no such obligation.
[24]
An
officer is not under a duty to inform the applicant about any concerns
regarding the application which arise directly from the requirements of the
legislation or regulations (see Hassani v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 at
paragraphs 23 and 24).
[25]
The
onus was on the applicant to satisfy the officer of all parts of her
application and the officer was under no obligation to ask for additional
information where the applicant’s material was insufficient (see Madan v. Canada (Minister of
Citizenship and Immigration) (1999), 172 F.T.R. 262 (F.C.T.D.), [1999]
F.C.J. No. 1198 (QL) at paragraph 6).
[26]
However,
the officer was obligated to inform the applicant of any concerns related to
the veracity of documents that formed part of the application and the officer
was required to make further inquires in such a situation (see Hassani
above, at paragraph 24).
[27]
The
officer was not convinced that the applicant was a genuine student. This was
because the applicant “submitted documentation which lacks credibility” as part
of her application. Specifically, the officer was concerned that the letters
from the college conflict with each other and with the document signed by the
Registrar, regarding the applicant’s graduation date.
[28]
By
viewing the letter as not credible or fraudulent, the officer ought to have
convoked an interview with the applicant to provide her with an opportunity to
respond to those concerns.
[29]
By
not doing so, the officer denied the applicant procedural fairness and the
judicial review is therefore allowed.
[30]
I
need not address the remainder of the issues.
[31]
Neither
party wished to submit a proposed serious question of general importance to me
for my consideration for certification.
JUDGMENT
[32]
IT IS
ORDERED that the
application for judicial review is allowed and the matter is referred to a
different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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72.(1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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