Date: 20030730
Docket: IMM-4027-01
Citation: 2003 FC 937
OTTAWA, ONTARIO, this 30th day of July 2003
Present: The Honourable Justice Dolores M. Hansen
BETWEEN:
SYED ANJUM AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a visa officer's decision refusing Syed Anjum Ahmed's application for permanent residence in Canada. An earlier decision regarding the applicant's application was quashed on judicial review and remitted for reconsideration by a different visa officer.
[2] The applicant asked to be assessed under the occupations of Training Representative, Agricultural Scientist, and Agricultural Technologist. He also requested that the visa officer exercise his discretion pursuant to subsection 11(3) of the Immigration Regulations, SOR/78-172 ("Regulations") to approve the application in the event that he earned insufficient units of assessment.
[3] The applicant is a citizen of Bangladesh. The applicant obtained a higher secondary school certificate. He successfully completed a two year program in agriculture at the Organization for Industrial, Spiritual and Cultural Advancement-International Chubu Nippon Training Center in Japan ("OISCA"). As well, he completed a two-month course in training and development at the School of Management, Thames Valley University, London.
[4] The applicant was employed in 1986/1987 as a senior material training developer at the Rangpur Dinajpur Rural Service. Subsequently, he joined Hifab International as social forestry consultant. In 1991, the applicant was a program officer for the Association of Development Agencies in Bangladesh. From 1992 to the date of the filing of his application for permanent residence, the applicant worked for CARE International as a training officer.
[5] Under the occupation of Training Representative, the visa officer awarded the applicant 62 units of assessment. The visa officer concluded that his assessment accurately reflected the likelihood of the applicant becoming successfully established in Canada. Accordingly, he did not exercise his discretion pursuant to subsection 11(3) of the Regulations.
[6] The visa officer did not complete a calculation of the units of assessment for the two remaining occupations. He concluded that this calculation was unnecessary since he had awarded zero units of assessment for experience and occupational demand. The visa officer refused the application because the applicant failed to obtain the required 65 units of assessment as an assisted relative.
[7] The determinative issue on this application for judicial review concerns the visa officer's assessment of the applicant's educational qualifications. In support of his application for permanent residence, the applicant submitted a letter dated, February 2, 2001, from OISCA and a copy of the document he received upon completion of the OISCA program. The letter states:
This is to certify that the entry requirement for OISCA sponsored Chuba Nippon Training Center's 2-year diploma program in agriculture is a senior high school diploma i.e. 12 years school education. The Japanese senior high school diploma is equivalent to the Higher Secondary Certificate (H.S.C.) in Bangladesh.
OISCA-International is in consultative status with UN ECOSOC. It provides scholarships to the students of Asian and African countries in various technical subjects including Agriculture. The Program offers diploma for 2-year course and it is recognized in Japan as well as other countries.
This is also to certify that Mr. Syed Anjum Ahmed was a student of Chubu Nippon Training Center from Feb-1975 to Jan-1977 successfully obtained the diploma in Agriculture from OISCA Chubu Nippon Training Center.
[8] The document the applicant received from OISCA certifies that he completed a technical training course in Agricultural Machinery and Agriculture (Rice and Vegetable Culture) at the OISCA-International Chubu Nippon Training Center in Japan.
[9] In the CAIPS notes, the visa officer states:
PA obtained a higher secondary certificate. After that , he went to Japan for a 2-yr training course (certificate seen and copy in the file). He attended only 3 courses/subjects and he was most of the time in the rice field. I am not satisfied that this meets criteria of awarding 13 units as per the Regulations. In fact, the school is a training center and I am not satisfied that this is a college, trade school or other post-secondary institution as set forth in the Regulations. Moreover, he did not obtained a diploma as indicated on his IMM8 as this is a training certificate. I therefore assigned 10 units for education.
[10] Having regard to the information provided by OISCA and the information he gave to the visa officer at the interview, the applicant submits his educational qualifications entitle him to an award of 13 units of assessment for education under paragraph (1)(c)(ii), Factor 1, Schedule I of the Regulations instead of the 10 units of assessment awarded by the visa officer pursuant to paragraph (1)(b)(ii).
[11] The applicant submits the visa officer made three errors in the assessment of his educational qualifications. First, the visa officer erred in finding that the document he received upon the completion of the OISCA course was a "training certificate" and not a "diploma or apprenticeship certificate" as contemplated in paragraph (1)(c)(ii) of Factor 1. Second, the visa officer erroneously determined that the OISCA was not a "college, trade school, or other post-secondary institution" within the meaning of paragraph (1)(c)(ii) of Factor 1. The applicant argues that "post-secondary institution" in paragraph (1)(c)(ii) should be given its ordinary meaning. Since a high school diploma is a condition of admission to the OISCA program, the applicant argues that it is the equivalent of a post-secondary institution. Third, the visa officer found that the OISCA program did not require at least one year of full time classroom study without asking the applicant the amount of time that was devoted to classroom study during the program.
[12] The respondent fairly concedes that although the document the applicant received upon the completion of his studies at the OISCA is a certificate, the letter from the OISCA describing the program makes it clear that it is a two year diploma program. The respondent argues, however, that this error is not fatal since this was only one of the factors considered by the officer in the assessment of the applicant's education. The visa officer was also not satisfied that OISCA was equivalent to a "college, trade school or other post-secondary institution". The visa officer took into account the fact that the applicant's higher education certificate qualified him to pursue university studies and that a senior high school diploma is a requirement for admission to the OISCA. The visa officer also found that the courses taken by the applicant did not amount to at least one year of full time classroom study. This finding was based on the fact that the applicant had only completed three courses during the two year program and the applicant's statement that he spent most of his time in the rice field. The respondent maintains that having regard to the totality of the evidence before the visa officer, it was open to him to find that the applicant should be awarded ten units of assessment for education.
[13] With regard to the visa officer's finding that the OISCA is not a post-secondary institution, it is evident from the CAIPS notes that this finding is premised on his assumption that a training centre does not meet the definition of post-secondary institution. In his affidavit, the visa officer states that he took into account the applicant's secondary school certificate and that OISCA requires a secondary school certificate in his assessment of the applicant's educational qualifications. On cross-examination on the affidavit, the visa officer was asked on what basis he arrived at the determination that OISCA was not a post-secondary institution. He responded that he took into account, the documents on file, the name of the school, the number of courses the applicant took and the fact that he spent most of his time in the rice field.
[14] In my view the visa officer erred by importing additional criteria into the definition of post-secondary institution. While I accept that not all training centres are post-secondary institutions, the key factor in making such a determination is the nature of the institution. The question is whether the institution offers programs of study requiring a high school diploma as a condition of admission. Although factors such as the number of courses the applicant attended and the amount of time spent outside the classroom are relevant to other aspects of the assessment, they are not relevant considerations in determining whether the institution meets the requirements of paragraph (1)(c)(ii) of Factor 1. Given that OISCA offers programs of study requiring a senior high school diploma as condition of admission, I am unable to find any reasonable basis for the visa officer's determination that OISCA does not meet the definition of post-secondary institution.
[15] With respect to the final issue raised by the applicant, there is considerable divergence between the applicant's and the visa officer's accounts as to what took place at the interview. In the CAIPS notes, the visa officer states:
I explained to PA the reasons of my refusal. He does not obtain sufficient units of assessment mainly because of a low occupational demand and education. I offered PA to address my concerns and he replied to me that he is sick of appealing. I took note of it but told him that he still does not obtain sufficient units. He then said that his training certificate is a diploma. I then read out loud the appropriate section in the Regulations and expressed my concerns as described above in the education section of my notes. Asked him if he has anything else to say to address my concerns and then he asked me if I had considered his brother. I said yes. He then had nothing else to say.
[16] In his affidavit, the applicant explains that he attended classroom lectures five days a week for five hours each day. As well, field work usually occupied three hours per week which varied according to the growing season and the topic being studied. He also adds that in Japan the rice growing season has a duration of five months. Although more than three hours per week was spent in the rice field during the growing season, during the other seven months no time was spent in the rice field. In terms of the courses he attended, the applicant states that although his transcript lists three areas of study he attended lectures on a broad range of subjects such as agronomy, genetics, plant biology, soil science, plant pathology, seed technology, and agricultural chemistry.
[17] The respondent submits that if the applicant had further evidence or information to provide the visa officer, the onus was on him to do so at the interview. The respondent argues that the applicant cannot now bolster his application through his affidavit in this proceeding.
[18] The applicant acknowledges that this information was not before the visa officer and ought not to be considered by the Court for the purpose of determining whether the visa officer erred in his assessment of his educational qualifications. The applicant contends, however, that it is relevant to the question of whether he told the visa officer that he spent most of his time in the rice field. He would not have stated that he spent most of his time in the rice field when that was clearly not the case. The applicant takes the position that there must have been some mis-communication between him and the visa officer due to the visa officer's hearing disability coupled with the fact that the interview was conducted in the visa officer's second language.
[19] The applicant states that he told the visa officer he attended the OISCA full-time for two years and the amount of time he spent in the classroom. He maintains that the visa officer did not read the Regulations to him and that when he asked for a reconsideration of his education, the visa officer was standing up and asking him to leave the room.
[20] In his affidavit, the visa officer affirms the content of the CAIPS notes. He denies that the applicant told him the number of hours he spent in the classroom while attending the OISCA. On cross-examination on the affidavit, the visa officer stated that because the applicant told him he spent most of his time in the rice field, he did not pursue the matter further by asking him the amount of time he spent in the classroom during his course of studies.
[21] I accept the respondent's argument that the applicant should not be permitted on judicial review to adduce additional evidence for the purpose of demonstrating that the visa officer's assessment was in error. However, it does lend credence to the applicant's assertion regarding mis-communication. Even if I accept the visa officer's statement that the applicant did not tell him the number of hours he spent in the classroom, having regard to the totality of the information available to the visa officer from OISCA and that the amount of classroom study is one of the requirements that must be specifically addressed in an assessment under paragraph (1)(c)(ii) of Factor 1, the visa officer should have raised this concern directly with the applicant instead of making a determination based on a response to a general question.
[22] For these reasons the application for judicial review is allowed.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the July 23, 2001 decision is set aside and the mater is remitted for reconsideration by a different visa officer.
2. No question will be certified.
"Dolores M. Hansen"
J.F.C.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4027-01
STYLE OF CAUSE: Syed Anjum Ahmed and the Minister of Citizenship
and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 25, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE HANSEN
APPEARANCES:
Mr. Peter Chapman FOR APPLICANT
Ms. Emila Pech FOR RESPONDENT
SOLICITORS OF RECORD:
Peter Chapman FOR APPLICANT
Chapman and Company Law Corporation
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada