BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER
[1] These reasons follow the hearing on the 13th of September, 2006 of an application for judicial review of a decision of W.J. Bottomley, Counsellor (Immigration), High Commission of Canada at New Delhi, India. In the decision, dated the 29th of December 2005, the decision-maker determined that the Applicant is not a dependant child according to the Immigration and Refugee Protection Regulations and therefore she was deleted from the application for permanent residence in Canada of her parents, her brother and herself that was sponsored by her sister, and her sister’s husband, both citizens of Canada.
[2] The Applicant’s application for permanent residence in Canada, together with that of her mother, father and brother, was filed in November 2002. The Applicant turned 22 years of age on the 27th of July 2001, prior to the sponsorship of her sister and brother-in-law being filed. That notwithstanding, the Applicant alleged that she was in full-time attendance at an educational institution in India and was completely dependant upon her parents for support at all times since before her 22nd birthday.
[3] The decision under review recites the fact that the Applicant, her parents and her brother were interviewed by an Immigration Program Officer at New Delhi, India, on the 7th of December 2005, in their native language, through an interpreter. The decision notes that, during the interview, there was no indication that the Applicant or her family members had difficulty in understanding the questions.
[4] The decision goes on to quote the definition of the expression “dependant child” as contained in section 2 of the Immigration and Refugee Protection Regulations[1], and it was not in dispute on this application for judicial review that, in order for her application to succeed, the Applicant needed to fit within that definition. In order to qualify, the definition requires that a person such as the Applicant must have depended substantially on the financial support of her parent since before the age of 22 and must have been, first, continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and secondly, actively pursuing a course of academic, professional or vocational training on a full-time basis.
[5] The decision letter continues:
…
Mayuri Shah [the applicant] turned 22 years of age on July 27, 2001. She had begun with a computer course in 2000 from Aptech Education Centre. The course was completed in 2003. Thereafter, Mayuri has been doing various computer language courses from the same institute. All universities in India fall under the purview of the University Grants Commission, and Aptech is not one of them. Therefore, Aptech is a private institute and not a government institute. Consequently, Mayuri Shah has not been continuously enrolled in and attending a post-secondary institution accredited by the relevant government authority since 2000.
Given the foregoing, I conclude that Mayuri Shah is not a “dependant child” as defined in section 2 of the Immigration and Refugee Protection Regulations in that she has not been able to demonstrate to my satisfaction that she was continuously enrolled in and attending a post-secondary institution accredited by the relevant government authority since before she attained 22 years of age.
Since Mayuri Shah is not a dependant child according to the Immigration and Refugee Protection Regulations, I have deleted her from your application.
The decision letter was directed to the Applicant’s father.
THE PROCESS LEADING TO THE DECISION UNDER REVIEW
[6] As earlier indicated, the Applicant and her family members then remaining in India were interviewed at New Delhi on the 7th of December, 2005. The CAIPS notes in respect of that interview, as they relate to the Applicant, read in part as follow:
…
A letter from Aptech Computer Education has been submitted that indicates her current program of study since July 2005.
Is Aptech a government institute or a private institute?
Government-recognised institute.
What do you mean? It is approved by the government.
Who conducts the exam? Aptech. The certificates are issued by Aptech.
Under what university does Aptech fall? None.
......
I explained my concerns to the Applicant:
- Mayuri Shah turned 22 years of age on 27 July 2001. She had begun with a computer course in 2000 from Aptech Education Centre. The course was completed in 2003. Thereafter, Mayuri has been doing various computer language courses from the same institute. All universities in India fall under the purview of the University Grants Commission, and Aptech is not one of them. Therefore, Aptech is a private institute and not a government institute. Consequently, Mayuri Shah has not been continuously enrolled in a post-secondary institute accredited by the government.
I gave the Applicant a chance to respond. The Applicant had nothing substantive to say in response to the concerns.
[7] It was not in dispute that the interviewing officer did not have the authority to make a decision deleting the Applicant from the application of herself, her parents and her brother. In the result, the interview conducted by her was a fact-finding interview with the record created passed on to the decision-maker.
[8] The decision-maker attested in part, in an affidavit filed on this application, as follows:
3. The Immigration and Refugee Protection Regulations require that a dependent child over the age of 22 be enrolled full time in an accredited institution.
4. The educational system in India is directed, controlled and managed by the Central government or State governments through statutory bodies created for that purpose. The University Grants Commission (UGC), referred to in my reasons for decision, is responsible for coordination, determination and maintenance of standards in education. According to the University Grants Commission Act 1956, the right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, or a State Act, or an institution deemed to be a University or an institution specially empowered by an Act of Parliament to confer or grant degrees.
5. The All India Council of Technical Education, and several other professional Councils in various fields, are engaged in promoting development in the field of technical and professional education in a coordinated and integrated manner. The All India Council of Technical Education is vested with statutory authority for planning, formulation and maintenance of norms and standards, and quality assurance through accreditation.
6. In addition, state governments in India also have concurrent powers to promulgate laws in the field of education, university education, medical education, technical education and universities.
7. A private or unrecognized institution is one which is not a central university or a state university, nor a college affiliated to a university, nor an autonomous college, nor a deemed university, nor a technical institute to which accreditation has been provided by All India Council of Technical Education nor some other Central or state professional body in their respective field. As the interviewing officer informed the Applicant at her interview, and as I noted in my decision, Aptech is such a private institute.
8. Visa officers attempt to verify through the Universities Handbook prepared and printed by the Association of Indian Universities, several other publications in different technical and professional areas, and internet if the institute attended by an applicant is an institute which is recognized by the central or state government, or is affiliated to an institution so recognized. This is what the interviewing officer and I did in the present case before coming to the conclusion that Aptech was not an accredited or recognized institution.
[9] As will be seen later in these reasons, it is unfortunate that the decision-maker appeared to interchange or treat as of similar meaning, the terms “accredited” and “recognized” in relation to institutions of learning.
[10] The decision-making officer acknowledged during cross-examination on his affidavit that he went to the Aptech web-site before reaching a conclusion. He determined that there was nothing on the web-site to indicate that Aptech was accredited by the federal government of India. The fact that the decision-making officer visited the Aptech web-site on the issue of accreditation was never made known to the Applicant.
[11] In a document appearing in the Tribunal record at pages 44 and following, there appears a communication providing further information from the Applicant and her family members in India. The communication is stamped received by the Canadian High Commission in New Delhi on the 3rd of December 2005, and therefore after the interview of the Applicant and her family members and before the date of the decision under review. The communication includes documentation from Aptech itself and further representations by the Applicant to the effect that Aptech is an internationally “recognized” organization. The Court has no reason to believe that this material was not in front of the decision-maker before the date of his decision.
THE ISSUES
[12] In general terms, the issue on this application for judicial review is whether or not the decision-maker erred. More specifically, counsel for the Applicant urged that the decision-maker erred in not having, himself, conducted the interview of the Applicant and further erred in failing to disclose to the Applicant that he had consulted the Aptech web-site and the result of that consultation, and provided the Applicant an opportunity to respond to that disclosure.
ANALYSIS
Standard of Review
[13] In Yen v. Canada (Minister of Citizenship and Immigration)[2], my colleague Justice O’Keefe, after conducting a pragmatic and functional analysis, concluded that a decision of a visa officer as to whether an applicant qualifies for a visa to enter Canada is a question of mixed fact and law and should therefore be reviewed against the standard of reasonableness simpliciter. I am satisfied that Justice O’Keefe’s analysis is applicable here. The issue of whether or not an educational institution has been “accredited” involves the interpretation of that term in the Immigration and Refugee Protection Regulations. As such, a question of law arises. However the interpretation of that phrase must be made in the context of the facts on any given application such as that now before the Court. Thus, the issue is one of mixed fact and law and thus the reasonableness simpliciter standard is appropriate.
[14] An allegation of reliance on extrinsic evidence without providing an applicant the opportunity to respond to that evidence raises a question of fairness. In such circumstances, the question of standard of review does not arise. If procedural fairness is determined not to have been provided, this Court should accord no deference to the decision of the decision-maker that is under review.[3]
“Accredited”
[15] As earlier indicated in these reasons, the Immigration and Refugee Protection Regulations require that, in order for a person in the circumstances of the Applicant to qualify as a “dependant child” with respect to a parent, if the person is over twenty-two (22) years of age, the person must have: first, since before turning twenty-two (22) years of age, depended substantially on the financial support of the parent; second, must have been a student continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority; and third, currently be actively pursuing a course of academic, professional or vocational training on a full-time basis. Against those requirements, the only issue arising on this application is whether the post-secondary institution that the Applicant had been enrolled in and attending since before the age of twenty-two (22) was “accredited” by the relevant government authority.
[16] The shorter Oxford English Dictionary[4] defines “accredited” to mean “furnished with credentials; authoritatively sanctioned”. It does not equate to “recognized” in some informal sense. Bearing in mind that the onus in the circumstances here before the Court is on the Applicant to establish that she fulfills the criteria that entitle her to a visa to enter Canada, I am satisfied that, on a standard of review of reasonableness simpliciter, and taking into account the totality of evidence before the decision-maker, the decision-maker made no reviewable error in determining that Aptech was not a post-secondary institution accredited by the relevant government authority in India. In the material provided post-interview by the Applicant, Aptech made no such claim. The decision-maker attests that no such claim is made on Aptech’s web-site. The fact that graduates of Aptech may be “recognized” by certain government institutions in India as possessing certain academic or technical qualifications for employment simply does not equate to “accreditation by a relevant government authority”.
Alleged Reliance on Extrinsic Evidence
[17] In Dasent v. Canada (Minister of Citizenship and Immigration)[5], Justice Rothstein, then of the predecessor of this court, wrote at paragraphs 20 and 21 of his reasons:
…In the case at bar, having regard to the words “not brought forward by the applicant” used by Hugessen J.A. to qualify the term “extrinsic evidence”, and his reference to Muliadi, I interpret the term “extrinsic evidence not brought forward by the applicant” as evidence of which the applicant is unaware because it comes from an outside source. This would be evidence of which the applicant has no knowledge and on which the immigration officer intends to rely in making a decision affecting the applicant. …
The relevant point as I see it is whether the applicant had knowledge of the information so that he or she had the opportunity to correct prejudicial misunderstandings or misstatements. The source of the information is not of itself a differentiating matter as long as it is not known to the applicant. The question is whether the applicant had the opportunity of dealing with the evidence. This is what the long-established authorities indicate the rules of procedural fairness require. In the well known words of Lord Loreburn L.C. in Board of Education v. Rice…:
They can obtain information in any way they think best, always
giving a fair opportunity to those who are parties in the controversy
for correcting or contradicting any relevant statement prejudicial to
their view.
…
[citation omitted]
[18] Here the alleged extrinsic evidence is what is contained, or not contained, on the Aptech website which was referred to by the decision-maker. In fact, it is information not on that website since the website reflected nothing that would indicate that Aptech is a post-secondary institution that is accredited by a relevant government authority. In effect then, reference to the Aptech website did nothing more than confirm the decision-maker’s preliminary conclusion.
[19] In Hussain v. Canada (Minister of Citizenship and Immigration)[6], Justice Evans then of the Trial Division of the Federal Court of Canada, in the context of a discussion on reliance on “local knowledge” which he found to equate to extrinsic evidence, wrote at paragraph 35 of his reasons:
In this context it is important to bear in mind the principle objectives of the administration of immigration control. The first is to facilitate the entry into Canada of persons who meet the requirements set out in the Immigration Act and Regulations. The second is to ensure that those who do not are excluded. Both objectives are of equal importance, and neither is likely to be achieved if visa officers do not adopt a procedure for determining visa applications that is calculated to produce accurate and thoughtful decisions. On the other hand, officers should not be burdened by procedural duties imposed by this Court that prevent them from processing applications in an expeditious and cost-effective manner.
I find the foregoing quoted paragraph to be particularly instructive on the facts of this matter.
[20] The Applicant was provided at interview with notice of the interviewer’s concerns regarding whether or not Aptech was a government-accredited post-secondary institution. She was offered an opportunity to respond at interview and, according to the CAIPS notes, provided no substantive response. The onus was on her to satisfy the decision-making officer that Aptech was such an institution. She provided further information post-interview. The Aptech website would have been a publicly accessible record and we have no evidence as to whether she in fact accessed it. In the event, it bore no information that would have been of use to her. In the foregoing circumstances, to find that website to be extrinsic information of a nature that would have required the decision-making officer to advise the Applicant that he had accessed it would, I am satisfied, in the words of Justice Evans above quoted, be to burden visa officers with procedural duties that would prevent them, or at least inhibit them from “…processing applications in an expeditious and cost-effective manner”, in the circumstances here at issue, to no evident avail.
[21] On the facts of this matter, I find no breach of procedural fairness in the failure of the decision-making officer to disclose to the Applicant that he had accessed the Aptech website in arriving at the decision under review.
He or she who hears must decide
[22] As earlier indicated, the officer who interviewed the Applicant and other members of her family was not the decision-maker. In fact, the interviewing officer did not have the authority to make a decision in the nature of that which is here under review.
[23] In Ayatollahi v. Canada (Minister of Citizenship and Immigration)[7], my colleague Justice Snider wrote at paragraph 14 of her reasons:
The facts of this applicant’s case can be distinguished from Patel, … where Tremblay-Lamer J. found that the principle that “he who hears must decide” was violated when a visa officer based his decision on the notes of an interview of the applicant by another visa officer. Unlike in Patel, … the IPO [the interviewing officer] had no authority under the Immigration Act to make the ultimate decision; rather, that authority rested with the visa officer… . The IPO’s role was to investigate the application and gather evidence to be used by the visa officer. The fact that this evidence was gathered in an oral interview did not require that the visa officer be a party to that interview (see e.g. Transmountain Pipe Line Co. v. Canada (National Energy Board)…; Armstrong v. Canada (Commissioner of the Royal Canadian Mounted Police),…
[citations omitted]
[24] I find the situation in this matter to be identical to that outlined in the foregoing quotation. I am satisfied that, once again on the particular facts of this matter, there was no breach of fairness or of the principle that he or she who hears must decide.
CONCLUSION
[25] Based on the foregoing analysis, this application for judicial review will be dismissed.
CERTIFICATION OF A QUESTION
[26] At the close of hearing on this application for judicial review, I advised counsel that I would reserve my decision, that I would in due course issue my reasons and that thereafter counsel would be provided with an opportunity to make submissions on certification of a question. Counsel for the Applicant will have seven (7) days from the date of issuance of these reasons to provide written submissions to the Registry and to counsel for the Respondent. Thereafter counsel for the Respondent will have seven (7) days to provide written submissions to the Registry and to counsel for the Applicant and thereafter, counsel for the Applicant will have three (3) days for written reply, once again to be provided to the Registry and to counsel opposite. Thereafter an Order will issue.
Vancouver, British Columbia
September 22, 2006
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1461-06
STYLE OF CAUSE: MAYURI RAMESHCHANDRA SHAH v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 13, 2006
APPEARANCES:
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Mr. Ronald Poulton
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Mr. Martin Anderson
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SOLICITORS OF RECORD:
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Mamann Associates Toronto, Ontario
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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[1] SOR/2002-27.
[2] 2001 FCT 661.
[3] See: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour) [2003] 1 S.C.R. 539, recently followed in the immigration context in Ren v. Canada (M.C.I.) 2006 FC 766.
[4] Oxford University Press, 1973.
[5] [1994] F.C.J. No. 1902 (reversed on other grounds on appeal).
[6] [1998] F.C.J. No. 1570.
[7] [2003] F.C.J. No. 340.