Docket:
T-1785-11
Citation: 2013 FC 1000
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa,
Ontario, September 30, 2013
PRESENT: The Honourable Mr. Justice Harrington
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BETWEEN:
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GRACE SIMELIN MADINGOU KISSIDI
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS
FOR ORDER AND ORDER
[1]
Mr. Grace Madingou
Kissidi is seeking judicial review of a decision by the Canadian International
Development Agency (CIDA) dated October 17, 2011, refusing to issue an attestation
that he had complied with the Agreement with respect to training in Canada
entered into with the Government of Canada as part of the Canadian Francophonie
Scholarship Program (CFSP). He also seeks judicial review of CIDA’s refusal to grant
him an exception to the agreement.
[2]
Although he is asking
the Court to make an order directing CIDA to grant him an attestation or exception,
he realizes that on this judicial review this Court can only, at best, remit
the case to another CIDA officer.
[3]
The Agreement is part
of the CFSP. Through this program, CIDA awards scholarships for studies in
Canada to nationals from developing countries of La Francophonie. The goal of
the program is to contribute to the sustainable development of recipient
countries by training individuals from those countries. It is managed by an
executing agency, the Association of Universities and Colleges of Canada.
FACTS
[4]
In May 2005, Madingou Kissidi, a native of the Democratic Republic of Congo, was selected as a CIDA
scholarship student to begin undergraduate university studies in electrical
engineering at the University of Moncton in New Brunswick. He signed the
Agreement.
[5]
Inter alia, he committed to leaving Canada at the
end of the program and also stated:
Moreover, I understand that if I return to Canada as a permanent resident
before a time at least equal to the double of the amount of time spent in
Canada during the tenure of the financial assistance, repayment to the
Government of Canada of the entire financial assistance may be required.
[6]
He successfully
completed his training program and obtained his Bachelor’s degree in
engineering then returned to his country of origin, the Democratic Republic of
Congo, in April 2010 where employment awaited him.
[7]
However, his employer
gave him his blessing to return to Canada after a month. Madingu Kissidi came
back with his temporary visa—a temporary study permit valid until the end of
May. He was accepted by the Community College of New Brunswick in the computer
technology, programming and analysis field of study for the autumn 2010 session.
He submitted an application to renew his study permit. These permits are issued
by Citizenship and Immigration Canada (CIC), which obviously in these
circumstances consulted CIDA. CIDA found that Madingou Kissidi had
completed his course, and therefore the study permit in question could not be
renewed. However, he was free to apply to CIC for a new study permit without
the involvement of CIDA or the CFSP.
[8]
Following an exchange
of letters between Madingou Kissidi, his counsel and CIDA, the latter sent
a letter addressed to Madingou Kissidi dated October 17, 2011, to his
counsel and to CIC. The letter confirmed that he had completed his training
program at the end of the CFSP and had obtained his Bachelor’s degree in
engineering in May 2010. The contentious issue is as follows:
[translation]
According to the information in our file, your client returned to his
country and came back to Canada with the study permit obtained as part of the CFSP
to continue studies other than the CFSP studies. In light of these facts, we
believe that the conditions of the CIDA scholarship and the study permit issued
to that effect were not met. Accordingly, and consistent with the objectives of
the CFSP, no exception to this rule will be granted. This decision confirms the
final position that you previously provided to CIDA.
Although a breach of contract was taken into consideration, no steps were
taken to that effect.
ISSUES
[9]
According to the
applicant, without an attestation that he complied with the terms of the
Agreement, CIC will not provide him with a new study permit, although the
proposed studies have no connection to CIDA or the CFSP. He alleges that a
student from the Côte d’Ivoire obtained such an attestation when he was in the
same situation—he was able to return to Canada. Nothing in the Agreement
prevented Madingou Kissidi from returning to Canada, other than as a
permanent resident. He returned with his employer’s blessing. He intends to
return to the Democratic Republic of Congo after completing his second degree.
Madingou Kissidi alleges that the decision is incorrect and
discriminatory.
[10]
The Attorney General
of Canada, on behalf of CIDA, submits that the October 2011 letter is not, per
se, a decision that gives rise to judicial review. There is no requirement to
issue an attestation. There is nothing preventing the applicant from applying
to CIC for a new temporary visa, that is, a study permit. It is up to CIC, not CIDA,
to decide whether it has to take into account the fact that he left Canada at
the end of his studies, that he returned here because his permit was still
valid and that he worked for only one or two weeks in the Democratic Republic
of Congo. That issue is not before me.
[11]
In addition, CIDA interpreted
and applied its own programs. As such, this is simply a question of a decision‑making
body applying its own statute, and therefore the standard of review is
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and
Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160).
[12]
From this
perspective, the decision was reasonable. The primary purpose of this program
is to contribute to the sustainable development of recipient countries. A
return for a few weeks is not a contribution.
[13]
The file is far from
being complete with respect to the student from the Côte d’Ivoire. Even if I
accept that he obtained an attestation, that can also be a reasonable
interpretation of the program. Under the reasonableness standard, there can be
more than one reasonable response. There was certainly no discrimination.
[14]
I agree with the
respondent’s decision. Madingou Kissidi’s concerns are speculative and
premature. In any event, the standard of review is reasonableness, and the decision
is reasonable.
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