Date: 20030926
Docket: IMM-2671-02
Citation: 2003 FC 1107
Ottawa, Ontario, this 26th day of September, 2003
Present: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
SURYAKANT DODIA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Dodia is a 47 year old industrial electrician. He is a citizen of the United Kingdom (U.K.) and of New Zealand. He applied in the fall of 2001 for permanent residence in Canada. His application was rejected and he now seeks judicial review of that decision.
[2] In his application for permanent residence, he did not refer to any relatives in Canada, however, in the spouse's form, attached thereto, his spouse referred to an aunt but without providing any proof of the relationship or that this aunt was a Canadian citizen.
[3] When Mr. Dodia's application was paper-screened on January 8, 2002, he was assessed as an assisted relative and was awarded a total of 62 units on a tentative basis, with a note that there was no evidence of relationship and that without it, the score would fall to 57 units.
[4] On January 16, 2002, the Embassy sent a letter to Mr. Dodia asking him to "provide proof of relationship to your relative residing in Canada". After a further exchange of correspondence, Mr. Dodia finally sent a letter to the Embassy explaining that the said aunt was in fact a distant relative, thus she would not meet the definition of "relative" in the Immigration Regulations, 1978 (SOR/78-172) (the "Regulations"); a note to that effect was included in the CAIPS notes on March 28, 2002. On April 12, when the visa officer reviewed the whole application again, it was classified in the independent category, and the application was refused, given that the preliminary assessment was lower than 60 units.
Issue
[5] Mr. Dodia only challenges the evaluation in the category "education", arguing that he was entitled to at least 13 units instead of the 10 granted to him by the visa officer. In his view, this would have raised his score to 60, ensuring his entitlement for an interview, under s.11.1 of the Regulations. He submits that at the interview, he intended to present new evidence to show that his brother had landed as an immigrant in Canada on April 1, 2002; this would entitle him to a bonus of 5 units. With this new total and the units he would likely get under "personal suitability", his application would have been granted.
[6] But the real issue to be determined was identified more clearly at the hearing. Mr. Dodia submits that the visa officer came to a conclusion with respect to his education without having a full set of facts before her. In the circumstances of this case, she should have made further enquiries and, having failed to do so, she breached her duty to act fairly.
Analysis
[7] Both parties agree that if a breach of procedural fairness did occur, this would constitute a reviewable error and the decision should be quashed. If, however, the decision of the visa officer was based on an error in her evaluation of the facts and the application of the requirements set out in Schedule 1, Item 1, of the Regulations, she erred on a mixed question of fact and law to which the standard of reasonableness simpliciter should be applied [Hao v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 269 (QL)].
[8] Mr. Dodia does not contest the fact that there was insufficient evidence on file for the visa officer to award him more than 10 units. The documentary evidence he had produced, did not include a diploma or certificate from Acton College, the institution listed in his application as the one he attended in the U.K. between 1972 and 1973. It is to be noted that, in box 3 on page 3 of the IMM8 form under "details of my post-secondary education", Mr. Dodia left the space for "certificate or diploma issued" blank. However, he did list multiple other items in the same box indicating that he had obtained other registrations and certifications in the U.K. and in New Zealand in subsequent years. His curriculum vitae did not provide any further explanation about the institutions he attended, the duration of his studies, or the conditions of admission applicable to those courses.
[9] Item 1(c)(ii) of Schedule 1 of the Regulations provides:
| 1. ...
(c) where a diploma or apprenticeship certificate that requires at least one year of full-time classroom study has been completed at a college, tradeschool or other post-secondary institution, the greater number of the following applicable units:
...
(ii) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(ii) as a condition of admission, thirteen units;
(Emphasis added)
|
|
1. [...]
c) lorsqu'un diplôme ou un certificat d'apprentissage d'un collège, d'une école de métiers ou de tout autre établissement postsecondaire, qui comporte au moins un an d'études à temps plein en salle de cours, a été obtenu, le plus élevé des nombres de points applicables suivants :
[...]
(ii) si le programme d'études menant à un tel diplôme ou certificat exige un diplôme d'études secondaires visé aux sous-alinéas b)(ii), 13 points ;
(Mon souligné)
|
|
|
|
|
Subparagraph (b)(ii) refers to a diploma from a secondary school "that may lead to entrance to university in the country of study".
[10] In her affidavit, the visa officer states that Mr. Dodia had completed secondary school and obtained several City & Guilds training certificates as well as an apprenticeship diploma but that none of these required as a condition of entry, a level of schooling which would lead to entrance to university.
[11] The Court also notes that there is no indication that his program at Acton College was full-time. In fact, for that period (1972-1973), Mr. Dodia also declared that he was working full-time as an apprentice technician.
[12] Mr. Dodia recognizes that he had the onus of convincing the visa officer that he met the requirements set out in the Regulations. However, he claims that given that the information on file was ambiguous and that the Embassy had already contacted him twice with respect to other information that was missing in his file, the visa officer should have also alerted him to the fact that additional information in respect of his post-secondary study could enable him to obtain additional units.
[13] In his affidavit in support of his application for judicial review, Mr. Dodia did not include any information indicating that, as a matter of fact, he indeed completed a full-time program at Acton College which required, as a condition of entry, a secondary school diploma that could lead to entrance to university.
[14] The existence of a positive duty upon a visa officer to seek additional information depends on the nature of the evidence presented by the applicant in the first place. There is a fine factual line between situations where the applicant's evidence is ambiguous and should reasonably trigger additional enquiries by a diligent visa officer, and those where the applicant simply fails to make his case, and the officer is reasonably entitled to make adverse inferences from the applicant's evidence itself. Here, there was no contradictory evidence that would trigger a duty to request supplementary information. The visa officer did not rely on any extrinsic evidence to come to her conclusion. I agree with Justice McKay who held in Sheikh v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 377 (QL), that in such cases, there is no duty to inquire.
[15] In view of the foregoing, the application for judicial review is dismissed. No question of general importance was proposed for certification and the Court finds that this case does not raise any.
ORDER
1. The application for judicial review is dismissed.
"Johanne Gauthier"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2671-02
STYLE OF CAUSE: Suryakant Dodia v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: September 9, 2003
REASONS FOR ORDER AND ORDER: Gauthier, J.
DATED: September 26 , 2003
APPEARANCES:
Mr. Des Friedland FOR APPLICANT
Ms. Kim Shane FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Des Friedland FOR APPLICANT
Barrister and Solicitor
1006 - 750 West Pender Street
Vancouver, B.C. V6C 2T8
Mr. Morris Rosenberg FOR RESPONDENT
Department of Justice
900-840 Howe Street
Vancouver, B.C. V6Z 2S9
FEDERAL COURT
Date: 20030926
Docket: IMM-859-03
BETWEEN:
SURYAKANT DODIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER