Date: 20080417
Docket: IMM-4013-07
Citation: 2008 FC 487
Ottawa, Ontario, April 17, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SI
JI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of an Immigration Officer (the officer) dated September 6, 2007,
wherein the officer denied Si Ji’s (the applicant) application for an extension
of his study permit.
[2]
The
applicant requested that the decision be set aside and the matter returned to a
different immigration officer for reconsideration.
Background
[3]
Si
Ji is a citizen of the People’s Republic of China. He came to Canada on April 23,
2006 on a study permit. As expiration of the study permit approached, the
applicant applied for an extension. On August 3, 2007, the applicant attended
an interview with the officer. In a decision dated September 6, 2007, the
officer rejected the applicant’s application for an extension. This is the
judicial review of the officer’s decision.
Officer’s
Decision
[4]
In
her decision dated September 6, 2007, the officer was not satisfied that the applicant
met all the requirements of IRPA or the Immigration and Refugee Protection Regulations,
S.O.R./2002-227 (the Regulations). Specifically, the officer was not satisfied
that the applicant would depart from Canada at the end of his
authorized period of stay. Moreover, the officer had concerns regarding the
authenticity of the official quiz from the applicant’s college. In light of
these concerns, the officer refused the applicant’s request for an extension.
Issues
[5]
The
applicant submitted the following issues for consideration:
1. Did
the officer err by committing a factual error or fail to consider the
information submitted in finding that the applicant did not have authentic
documents from Austin College?
2. Did
the officer err by breaching the rules of procedural fairness in failing to
inquire of Austin
College
whether the documents were authentic?
3. Did
the officer properly consider whether the applicant was a genuine temporary
resident?
4. Whether
the officer was satisfied that the applicant would leave Canada by the end
of the period authorized?
[6]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the officer make a reviewable error in finding that the documents from Austin College were not
genuine?
3. Did
the officer make a reviewable error in finding that the applicant would not
leave Canada after his
authorized period of stay?
Applicant’s
Submissions
[7]
The
applicant submitted that the question of authenticity of documents is a
question of fact subject to a standard of reasonableness on review (Zhang v.
Canada (Minister of
Citizenship and Immigration), 2006 FC 1381). It was submitted that the
applicant correctly submitted two authentic letters from Austin
College
and that the officer’s finding on authenticity was unreasonable.
[8]
The
applicant also submitted that the officer breached procedural fairness. It was
submitted that as the officer was concerned by the fact that the letters were
on different letterhead, she should have inquired with Austin College as to
whether they used two different letterheads. The officer should have disclosed
this concern during the interview and provided the applicant a fair opportunity
to obtain proof from the college (Muliadi v. Canada (Minister of
Employment and Immigration), [1986] 2 F.C. 205 (F.C.A.)).
[9]
It
was also submitted that the officer failed to provide sufficient reasons in
finding that the applicant would not leave at the end of his allowed stay. The
applicant argued that there is nothing in the officer’s notes that could lead
to this conclusion. Sufficient reasons must be provided and they must be
sufficiently clear for the applicant to understand why the application has
failed (Saha v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1325).
Respondent’s
Submissions
[10]
The
respondent noted that under subsection 181(2) of the Regulations, an extension
is granted “if, following an examination, it is established that the foreign
national continues to meet the requirements of section 179”. Under section 179
of the Regulations, it must be established that the applicant will leave Canada at the end
of the authorized stay. The respondent submitted that the officer was not
satisfied of this and therefore the refusal of the application was reasonable.
[11]
The
respondent also submitted that the applicant admitted under questioning that
the quiz provided from Austin College was not an authentic document. It
was submitted that based on this information, the officer’s finding on the
authenticity of the documents was not a reviewable error. The officer was under
no obligation to contact the college and make inquiries. The obligation to
confront an applicant with adverse conclusions applies where the conclusions
arise from material not known to the applicant whereas in this case the
application provided the materials in question (Toor v. Canada (Minister of
Citizenship and Immigration), 2006 FC 573).
[12]
With
regards to the duty to provide reasons, the respondent submitted that in this
type of application, the officer has very little discretion and as such, the
duty to provide reasons is minimal. There was no obligation on the officer to
provide further reasons then those provided (daSilva v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1138).
Applicant’s Reply
[13]
In
his reply, the applicant further elaborated on the unreasonableness of the
officer’s finding that the applicant would not leave Canada once his authorized
period of stay had expired. The applicant submitted that there is no evidence
on record to support this finding. In fact, when asked precisely whether or not
he would leave Canada at the end of his
authorized stay, the applicant responded yes and that he intended to get a new
job for the 2008 Olympic Games in China.
Analysis and
Decision
[14]
Issue
1
What is
the appropriate standard of review?
Very
recently in Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme
Court of Canada reviewed the standard of review analysis in Canada and
eliminated the standard of reasonableness simpliciter and patent
unreasonableness, opting for a standard of reasonableness. In doing so, the
Supreme Court stated the following about the reformed standard of review
analysis at paragraph 62 of its decision:
[62] In summary, the process of
judicial review involves two steps. First, courts ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.
Second, where the first inquiry proves unfruitful, courts must proceed to an
analysis of the factors making it possible to identify the proper standard of
review.
The issues raised by the
applicant are challenges to the officer’s findings of fact. Past jurisprudence
indicates that these findings are reviewable on a standard of patent
unreasonableness; however, in light of the Supreme Court’s recent decision in Dunsmuir above, this
standard deserves reconsideration.
[15]
In
determining the applicable standard of review, the Supreme Court at paragraphs
63 and 64 of Dunsmuir above, directed courts to replace the outdated
pragmatic and functional approach with the following standard of review
analysis:
[63] The existing approach to
determining the appropriate standard of review has commonly been referred to as
“pragmatic and functional”. That name is unimportant. Reviewing courts must
not get fixated on the label at the expense of a proper understanding of what
the inquiry actually entails. Because the phrase “pragmatic and functional
approach” may have misguided courts in the past, we prefer to refer simply to
the “standard of review analysis” in the future.
[64] The analysis must be
contextual. As mentioned above, it is dependent on the application of a number
of relevant factors, including: (1) the presence or absence of a privative
clause; (2) the purpose of the tribunal as determined by interpretation of
enabling legislation; (3) the nature of the question at issue, and; (4) the
expertise of the tribunal. In many cases, it will not be necessary to consider
all of the factors, as some of them may be determinative in the application of
the reasonableness standard in a specific case.
[16]
In
my opinion, the most relevant factors in the present case are the nature of the
question and the expertise of the decision-maker. In the present case, the
issues raised are questions of fact and as such, deference is owed. Moreover,
the expertise of immigration officers includes making factual findings in
coming to their ultimate determination. In light of these considerations, I find
that deference is owed to the officer and the appropriate standard is one of
reasonableness.
[17]
At
paragraph 47 of Dunsmuir above, the Supreme Court defined reasonableness
as:
[47] Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable conclusions.
Tribunals have a margin of appreciation within the range of acceptable and
rational solutions. A court conducting a review for reasonableness inquires
into the qualities that make a decision reasonable, referring both to the
process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[18]
Issue
2
Did the officer make a
reviewable error in finding that the documents from Austin College were
not genuine?
The evidence
before the officer included two documents from Austin College with
different letterhead. Moreover, the following exchange occurred during the
applicant’s interview:
65. You told me already that the
teacher didn’t mark the quizzes? Yes they didn’t give me a real C they just
said a C
66. How did you obtain your official
transcript and official quiz? I ask my college
67. Who did you ask at the college?
Jennifer
68. What is Jennifer? Counsellor
69. What is Jennifer’s last name? Sorry I
don’t know
70. What did you ask Jennifer for? I said
I wanted to renew my student permit I need some documents for me
71. Did you have to pay Jennifer any
money? No
72. Why does your official transcript and
official quiz look the same? Immigration asked me for a quiz paper. I didn’t
have a real mark now. So I Jennifer say I must do a student permit
73. So you got the quiz for immigration
purpose only? Yes
74. This is not a genuine document? No
its not, because next week we have real marks. The teacher said, I asked the
teacher they gave me
75. Did the school give you the
transcript and the quiz? Yes
76. Why is the transcript and quiz
different paper? Because this paper the teacher give me I don’t know why
[19]
I
have carefully reviewed the statements of the applicant to the officer and I am
not satisfied that the officer’s decision was reasonable with respect to the
authenticity of the official quiz. The applicant was very candid about how he
obtained the quiz with a “C” mark on it. He believed that the request for an
official quiz required that the quiz have a mark on it. He explained how the
school gave him an interim mark for immigration purposes. The explanation
appears reasonable to me.
[20]
I
am of the view that the officer’s decision with respect to the official quiz
was unreasonable.
[21]
Issue
3
Did the
officer make a reviewable error in finding that the applicant would not leave Canada after his
authorized period of stay?
Having
carefully reviewed the certified tribunal record paying special attention to
the officer’s interview notes, I agree with the applicant that there is no
evidence on the record in support of such a finding. In fact, the officer’s
interview notes provide the only evidence on whether or not the applicant would
depart at the end of his authorized stay. The exchange was as follows:
95. What will you do if this application
is refused? I fell sad I can’t give my mom a present. My mom gave me a lot of
money to go here to learn something I can’t do that. I don’t know how to fix my
mom. Maybe I go back to China and get a job
96. Why should I issue you a study
permit? I think I changed my new major I think it is good for me for finding a
new job, it is good, 2008 Olympic games I think it is a good opportunity to get
a new job
97. When will you finish school?
September 2008
98. When will you return to China? If I finish the major I want to come
back to China
[22]
In
my opinion, there is nothing in this exchange to suggest that the applicant
would not leave at the end of his authorized stay. He clearly indicated that
when he finished school he intended to take advantage of the 2008 Olympic Games
in China to get a job
in his field. I note that according to the officer’s notes, the last question
in the interview was whether everything the applicant said was truthful; the
applicant responded ‘yes’. In light of these findings, I believe that the
officer’s decision was unreasonable.
[23]
The
application for judicial review is therefore allowed and the matter is referred
to a different officer for reconsideration.
[24]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[25]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different officer for reconsideration.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Regulations, SOR/2002-227:
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179. An officer shall issue a temporary
resident visa to a foreign national if, following an examination, it is
established that the foreign national
(a) has
applied in accordance with these Regulations for a temporary resident visa as
a member of the visitor, worker or student class;
(b) will leave
Canada by the end of the period authorized
for their stay under Division 2;
(c) holds a
passport or other document that they may use to enter the country that issued
it or another country;
(d) meets the
requirements applicable to that class;
(e) is not
inadmissible; and
(f) meets the
requirements of section 30.
181.(1) A
foreign national may apply for an extension of their authorization to remain
in Canada as a temporary resident if
(a) the
application is made by the end of the period authorized for their stay; and
(b) they have
complied with all conditions imposed on their entry into Canada.
(2) An officer
shall extend the foreign national's authorization to remain in Canada as a temporary resident if, following an examination, it
is established that the foreign national continues to meet the requirements
of section 179.
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179.
L’agent délivre un visa de résident temporaire à l’étranger si, à l’issue
d’un contrôle, les éléments suivants sont établis :
a)
l’étranger en a fait, conformément au présent règlement, la demande au titre
de la catégorie des visiteurs, des travailleurs ou des étudiants;
b)
il quittera le Canada à la fin de la période de séjour autorisée qui lui est
applicable au titre de la section 2;
c)
il est titulaire d’un passeport ou autre document qui lui permet d’entrer
dans le pays qui l’a délivré ou dans un autre pays;
d)
il se conforme aux exigences applicables à cette catégorie;
e)
il n’est pas interdit de territoire;
f)
il satisfait aux exigences prévues à l’article 30.
181.(1) L’étranger peut demander
la prolongation de son autorisation de séjourner à titre de résident
temporaire si, à la fois :
a)
il en fait la demande à l’intérieur de sa période de séjour autorisée;
b)
il s’est conformé aux conditions qui lui ont été imposées à son entrée au
Canada.
(2)
L’agent prolonge l’autorisation de séjourner à titre de résident temporaire
de l’étranger si, à l’issue d’un contrôle, celui-ci satisfait toujours aux
exigences prévues à l’article 179.
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