Date: 20001025
Docket: IMM-4073-99
BETWEEN:
DANG GAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Dang Gam, the applicant in this proceeding, is a 27 year old citizen of Vietnam. She brings this application for judicial review of a decision of Gillian Wan, a visa officer at the Canadian High Commission in Singapore, dated July 14, 1999. Ms. Wan determined that an immigrant visa should not be issued to Ms. Gam because Ms. Gam was found to be ineligible to be included in a sponsored application for permanent residence in Canada as a dependent daughter.
THE FACTS
[2] No affidavit sworn by the visa officer was filed in opposition to Ms. Gam's application. CAIPS notes, presumably entered by Ms. Wan, are contained in the tribunal record. I accept that while those notes form part of the record as the reasons for the decision under review, the notes have no status as evidence of the truth of what is recorded in them. See, for example, Chou v. Canada (Minister of Citizenship and Immigration) (2000), 3 Imm. L.R. (3d) 212 (F.C.T.D.).
[3] The tribunal record does contain a letter, dated June 26, 1999, apparently sent from Ms. Gam's father to the Canadian High Commission in Singapore in response to a letter requesting further information. The letter from the Canadian High Commission requesting further information is not contained in the tribunal record, nor is the copy of that letter which Ms. Gam's father stated he enclosed with his letter of June 26, 1999 to the Canadian High Commission. The letter sent by Ms. Gam's father in response to the request provided a summary of Ms. Gam's past studies and enclosed a number of degrees, diplomas and educational records in respect of Ms. Gam.
[4] The relevant portions of the visa officer's refusal letter state as follows:
| Based upon the information you have provided, I have determined that the following person is not eligible to be included in your application, as she does not meet the definition of "dependent daughter" as set forth in Canada's Immigration Regulations (1978): |
| ... |
| Your daughter, Dang Gam was born on 07 September 1973 and is currently almost 26 years old. She turned 19 years of age in 1992. According to her application form, she received a degree for post-secondary studies in the period 1994-1998. Based on the documents that she provided, she received a Bachelor of Science degree in "Pedagogical English" in 1997. Surprisingly, her secondary school book lists only grade 11 studies, which she completed in 1991; she first registered at this school in 1989. |
| From our understanding of education regulations in Vietnam, in order to gain admission to university, students must complete 12 years of education and pass university entrance examinations. Your daughter, without completing her secondary studies, managed to provide a certificates [sic] stating that she passed her general basic school (elementary) examinations in 1989 and her general secondary school exams in 1992. Following grade 11, she did not enrol in university studies until 1993. After obtaining her bachelor degree in 1997, she has taken short term specialty courses such a [sic] "Applied informatics". Your daughter was not a full-time student in the period 1991-1993 and since she completed her university Bachelor degree program, she has taken specialty courses at university, which does not meet our legislative requirements as full-time studies. |
THE ISSUES
[5] Ms. Gam raised three issues with respect to the visa officer's decision:
| (i) Did the visa officer err in law and in fact in finding that Ms. Gam was not a full-time student from 1991 to 1993? |
| (ii) Did the visa officer exceed her jurisdiction by concluding that Ms. Gam enrolled in "specialty" courses after 1997 and further by finding that such enrollment did not constitute full-time studies under the Immigration Regulations, 1978, SOR/78-172, as amended ("Regulations")? |
| (iii) Did the visa officer breach procedural fairness by not providing the applicant with an opportunity to disabuse the officer of her concerns regarding the applicant's student status? |
ANALYSIS
[6] To qualify as a dependent daughter under the Regulations, Ms. Gam was required to meet the requirements set out in subsections 2(1), 2(7) and 6(6) of the Regulations.
[7] In summary, those provisions required Ms. Gam to establish that she had been a full-time student at a university, college or other educational institution since September of 1992 (when she reached the age of 19 years) and that she did not interrupt her studies for an aggregate period of more than one year.
[8] With respect to Ms. Gam's first assertion, that the visa officer erred by concluding that she was not a full-time student between 1991 and 1993, it was conceded on the Minister's behalf at the oral hearing that the visa officer erred in concluding that Ms. Gam was not a full-time student in the period 1991-1992 and that the visa officer further erred in finding that Ms. Gam's secondary school book listed only grade 11 studies. It is clear that the tribunal record contains documents, otherwise found reliable by the visa officer, which showed that Ms. Gam completed grade 12 and obtained her degree of graduation from general secondary school in 1992.
[9] As for the period from 1992-1993, the father's letter of June 26, 1999 stated that: "Since 1992 to 1993: She studied in pre-university class of English language (Freshman) at Permanent education center of Kien giang province." The visa officer gave no reason for rejecting that evidence in her refusal letter or in the CAIPS notes. The visa officer's refusal letter simply stated that Ms. Gam "did not enrol in university studies until 1993". The visa officer was obliged to provide a reason for rejecting what appears to be uncontradicted evidence.
[10] However, because Ms. Gam was required to establish that she had been continuously enrolled as a full-time student since 1992 these errors with respect to the period between 1991 and 1993 are not sufficient to vitiate the visa officer's decision if the visa officer concluded without reviewable error that the post-graduate study did not constitute full-time studies.
[11] With respect to Ms. Gam's assertion that the visa officer exceeded her jurisdiction in finding that enrollment in specialty courses after 1997 did not constitute full-time studies, the visa officer apparently accepted that Ms. Gam took a course in "Applied informatics", but discounted the effect of this course stating that it was a "specialty" course which did not meet the legislative requirements for full-time studies. There is no indication in the record as to the basis on which the visa officer reached that conclusion or, as to any evidence which supported or contradicted such finding.
[12] It is here that the absence from the tribunal record of the letter from the High Commission requesting further information or documentation was said to be significant. It was argued that without seeing that request for information or documentation, it is not possible to assess the reasonableness of the visa officer's apparent conclusion that the information supplied by Ms. Gam was insufficient. Ms. Gam asks that an adverse inference be drawn from the failure of the tribunal to provide the letter.
[13] This submission requires consideration of the obligation imposed on the tribunal to provide material where an application for judicial review is brought in respect of the decision of a visa officer.
[14] Rule 4 of the Federal Court Immigration Rules, 1993, SOR/93-22 as amended ("Immigration Rules") provides that Part 5 of the Federal Court Rules, 1998, SOR/98-106 ("Rules") applies to application for judicial review of a visa officer's decision.
[15] Rule 317 of the Rules, found in Part 5, provides:
| 317. (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested. (2) An applicant may include a request under subsection (1) in its notice of application. |
| 317. (1) Une partie peut demander que des documents ou éléments matériels pertinents à la demande qui sont en la possession de l'office fédéral don't l'ordonnance fait l'objet de la demande lui soient transmis en signifiant à l'office fédéral et en déposant une demande de transmission de documents qui indique de façon précise les documents ou éléments matériels demandés. (2) Un demandeur peut inclure sa demande de transmission de documents dans son avis de demande. |
| [16] This process is to be contrasted with that mandated by Rule 17 of the Immigration Rules which requires the tribunal to provide, among other things, all papers relevant to the matter that are in the possession or control of the tribunal. Rule 17 does not apply where the impugned decision is that of a visa officer because leave is not required for the bringing of such application and Rule 17 only applies where an order has been made granting leave. |
| [17] The letter in question was one sent to the applicant. It was, therefore, not required to be produced by the tribunal under Rule 317 of the Rules. It follows that no adverse inference may be drawn against the respondent from the non-production of the letter. |
| [18] In the absence of such inference, the applicant has not established that the visa officer's conclusion that the course did not meet the requirements was unreasonable. |
| [19] It follows that irrespective of the earlier errors, Ms. Gam failed to establish that she met the requirements to qualify as a dependent daughter. |
| [20] Ms. Gam's final submission is that the visa officer breached the duty of fairness by failing to allow the applicant to respond to the visa officer's concerns. In view of my conclusion as to the visa officer's findings with respect to the 1991-1993 period, of particular relevance is the assertion that the visa officer should have allowed Ms. Gam to provide proof that the computer course was a full-time course at another educational institution. |
| [21] However, I accept the Minister's submission that there was no obligation on the visa officer to allow Ms. Gam to clarify or amplify upon evidence submitted on her own behalf. Having so concluded it follows that Ms. Gam has not established any breach of the duty of fairness. |
| [22] In the absence of a reviewable error with respect to the post-graduate period or breach of the duty of fairness, the application should be dismissed. |
| [23] Neither party suggested certification of a question. |
| "Eleanor R. Dawson" |
| Judge |
| Ottawa, Ontario |
| October 25, 2000 |