Date: 19981005
Docket: IMM-829-98
BETWEEN:
CHINUBHAI MADHAVLAL PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of a visa officer to delete the Applicant"s son from his parents" application for permanent residence, as he was not a "dependent son" as defined by the Immigration Regulations .1
FACTS
[2] The Applicant applied for permanent residence in Canada to the New Delhi Visa Office on September 5, 1996 and included his son as a dependent.
[3] The son was born 18 September 1970. He has been registered as a full-time student at Maninagar Science College, since he graduated from secondary school in 1992.
[4] The son"s academic record demonstrates that he has had little success in academia:
| 1990/1991 Grade 12 Full-Time FAILED |
| 1991/1992 Grade 12 Full-Time PASSED |
(Repeat)
| 1992/1993 1 st year B.S.C. Full-Time FAILED |
| 1993/1994 1 st year B.S.C. Full-Time FAILED |
(Repeat)
| 1994/1995 1 st year B.S.C. Full-Time FAILED |
| (Repeat) |
| 1995/1996 1 st year B.S.C. Full-Time FAILED |
(Repeat)
| 1996/1997 1 st year B.S.C. Full-Time CONTINUING2 |
[5] Visa Officer Michael Watts interviewed the Applicant and his family on June 10, 1997. According to notes on the Computer Assisted Immigration Processing System ("CAIPS"), Officer Watts determined that the son was not a genuine student and that he did not meet the definition of "dependent son" contained in the Regulations .
[6] On June 18, 1997, the Applicant, through his Immigration Consultant, requested that the decision of Officer Watts be reconsidered.
[7] In September, 1997, Officer Watts was transferred to a different section of the Canadian High Commission in New Delhi and Officer Philip Lupul took over the file.
[8] In response to a request from the Applicant"s immigration consultant to reconsider the Applicant"s file based on humanitarian and compassionate grounds, Officer Lupul, according to his affidavit, reviewed the file, including the interview notes of Officer Watts and the school documents provided by the applicant.3
[9] Officer Lupul concluded, as stated in his letter to the Applicant, that the Applicant"s son had not been in attendance as a full-time student in accordance with the Regulations. Officer Lupul stated that "[i]n addition to the quantitative assessment of "attendance", there is a qualitative element,"4 which the son did not meet.
ISSUES
| a) Is the evidence adduced by the Respondent properly before the Court? |
| b) Did he who heard decide? |
| c) Is there a qualitative as well as quantitative element to the term "attendance" in the definition of "dependent son" in subsection 2(1) of the Regulations ? |
ANALYSIS
| a) Improperly tendered evidence |
[10] The Applicant submits that paragraphs 5 through 12 of Visa Officer Lupul"s affidavit should be stricken because they contain facts outside the personal knowledge of the deponent.
[11] Rule 81 of the Federal Court Rules, 19985 states that affidavits must be limited to the facts within the personal knowledge of the deponent.
| 81(1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent"s belief, with the grounds thereof, may be included. |
[12] The reason this is so important is that when an affidavit is based on second hand information, it is impossible to test that information through cross-examination.
[13] This concern was made clear in Wang,6 where the Federal Court of Appeal considered the fact that the interview notes of one visa officer were attached to the affidavit of the second officer. The Court of Appeal allowed the appeal on other grounds, but stated that:
| [t]here is no justice in according one witness to the proceeding an opportunity to present evidence in a manner that precludes it from being tested by cross-examination.7 |
[14] With this concern in mind, a careful reading of Officer Lupul"s affidavit reveals that only paragraphs 10 and 11 of the affidavit contain information not within the personal knowledge of the affiant. Paragraphs 5 through 9 and 12 contain objective references to documents and dates, which Officer Lupul could have confirmed by simply referring to the file. In fact, paragraph 10 is largely based on an explanation of the CAIPS system, which Officer Lupul is also familiar with. However, paragraph 11 contains specific references to the content of the interview conducted by Officer Watts. Officer Lupul was not present at the interview nor does he have personal knowledge of what transpired at the interview. In addition, the second sentence of paragraph 10 specifies that the interview notes are attached as Exhibit A to his affidavit, and as the notes must be struck, this sentence should also be struck.
[15] Therefore, the second sentence of paragraph 10, all of paragraph 11, and Exhibit A to Officer Lupul"s affidavit are struck from the record as improper.
| b) Did he who heard decide? |
[16] The Applicant"s son was interviewed by Officer Watts on June 10, 1997. In response to a request to reconsider the applicant"s file based on humanitarian and compassionate grounds, Officer Lupul reviewed the file on November 3, 1997 and again on December 24, 1997. In arriving at his decision to delete the Applicant"s son from the application, Officer Lupul relied on both the school documents and, to a large extent, on the interview notes of Officer Watts.
[17] In the deletion letter, Officer Lupul used the interview notes to justify, in part, his finding that the letter from Maningar Science College, which states that the son is in full-time attendance, is not credible.
| Based on the marks sheet, it is not credible that Amitkumar Chinubhai Patel would have been in attendance at school full time (Monday to Friday - 7:30 to 1:00 and Saturday - 11:30 to 4:30) as stated in the undated letter from Maningar Science College, during the periods when he has only been taking the math class. Further, that letter is not credible when it states that he is enrolled in second year studies yet the marks sheets indicate he has not cleared the first year. I am reinforced in this view by Amitkumar Chinubhai Patel"s own statement at interview that he was then still attempting to clear first year BSc studies. From the record of the marks sheets, it appears that Amitkumar Chinubhai Patel"s studies, since June, 1994 have only been part-time, having involved the studies of one course alone (save for when he also took "science subject" according to the 26JUN96 statement).8 (References omitted) (my emphasis) |
[18] Further, in his assessment of the quantitative aspect of the son"s attendance, he relied solely on the interview notes.
[19] In his letter, Officer Lupul stated:
| In addition to the qualitative aspect of "attendance", there is also a qualitative element. Although Amitkumar Chinubai Patel admitted at interview that he had been studying in the first year of B.Sc. studies for five years, he was unable to answer even the most basic question about the content of the courses he claims to have studied during that time. For example, he could give no explanation of what he was studying in math, beyond describing it as "general math". When asked to provide some information about algebra, geometry and trigonometry, he gave no answer at all. Queries about chemistry and physics brought similar responses. Given this, even if he has been in physical attendance at the courses claimed, he clearly has not been in full time attendance in any qualitative way. Certainly, the lack of any significant knowledge of his courses is particularly glaring in the case of math, as it is the only course he has had to occupy his attention since June, 1994 (with the exception of "science subject" taken in 1996).9 |
[20] Although I recognize that part of his decision was based on the documentary record, I find the fact that he relied on the interview notes of another visa officer taints the decision as a whole. It is impossible to determine, based on the record, the extent to which the interview notes influenced his final decision.
[21] Therefore, he who heard (Officer Watts in the interview) did not decide (Officer Lupul in his letter 6 January 1998). This is a breach of the rules of fundamental justice and constitutes an error in law. As such, the visa officer"s decision is set aside and the matter sent back for redetermination by a different visa officer.
| c) Is there a qualitative element to "in attendance"? |
[22] I wish to comment on another matter raised by the Applicant, i.e. the qualitative aspect of the words "in attendance" in the definition of "dependent son".
[23] Officer Lupul, in the deletion letter, takes the view that there is a qualitative element to this definition.
[24] Subsection 2(1) of the Regulations defines "dependent son" as follows
| "Dependent son" means a son who (a) is less than 19 years of age and unmarried, (b) is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution and
|
"fils à charge" Fils : a) soit qui est âgé de moins de 19 ans et n'est pas marié; b) soit qui est inscrit à une université, un collège ou un autre établissement d'enseignement et y suit à temps plein des cours de formation générale, théorique ou professionnelle, et qui :
|
[25] I cannot read the term "in attendance" as including a qualitative aspect. The Oxford English Dictionary10 defines "attendance" as "the action or fact of being present ..." Following this definition, the words "in attendance", in my opinion, simply refer to the physical presence of the person, not the quality of that attendance.
[26] The issue of statutory interpretation was clearly outlined by the Supreme Court of Canada, in the case of R. v. McIntosh. The Supreme Court affirmed the "golden rule" of interpreting statutes in a manner consistent with their plain meaning.
| A statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise.11 |
[27] Later in the same judgment, Chief Justice Lamer agreed with the observation of Pierre-André Côté in his book The Interpretation of Legislation in Canada,12 where he states that interpretation should not add to the terms of the law.
| Since the judge"s task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislator wanted to say ... |
| The Crown is asking this Court to read words into s. 34(2) which are simply not there. In my view, to do so would be tantamount to amending s. 34(2), which is a legislative and not a judicial function. The contextual approach provides no basis for the courts to engage in legislative amendment.13 |
[28] Contrary to subparagraph 2(1)(b)(ii) of the definition, where the words "is determined by an immigration officer, on the basis of the information received by the immigration officer" clearly empower the visa officer to exercise his or her discretion in assessing the information submitted and determining whether or not the alleged "dependent son" is wholly or substantially financially supported, there is no such discretion in the wording of subparagraph 2(1)(b).
[29] Therefore, in my view, the absence of this clear language from the previous subparagraph is an indication of Parliament"s intention to have the student status of the alleged "dependent son" determined solely on the basis of the documentary evidence. In other words, if the record states that he or she is enrolled and is in full-time attendance, then that should suffice.
[30] Furthermore, given the broad range of academic subjects, in my opinion, it would be inappropriate to allow visa officers to assess the quality of an Applicant"s academic performance.
[31] For these reasons, I respectfully disagree with the view expressed by my colleague Gibson J., in Khaira14 and in Malkana15, that there is a qualitative element to being "in attendance".
[32] In both instances a question was certified and sent up to the Court of Appeal. Khaira has since been discontinued and Malkana, as of the date of these reasons, is still pending before the Court of Appeal. The certified question reads as follows:
| Where a visa officer is considering an application for landing in Canada that includes an individual claiming to be the "dependant son" or "dependant daughter" of the principal applicant on the basis that he or she is enrolled in and in attendance as a full-time student in an academic, professional, or vocational program at a university, college, or other educational institution and has been continuously enrolled and in attendance in such a program, is it open to the visa officer to determine that the individual, while continuously enrolled as a full-time student in an appropriate educational program and institution, has not been "in attendance" at that program and at that institution on the basis of the individual"s inability to describe or discuss what has been taught in various courses in which the individual has been enrolled? |
CONCLUSION
[33] Officer Lupul based his decision, in large part, on the interview notes of Officer Watts. In relying on the interview notes, Officer Lupul has breached the principle of he who hears must decide, and in so doing commits an error in law.
[34] The decision of Officer Lupul dated 6 January 1998 is set aside and the application returned for reassessment by a different visa officer. No representations were made for a question to be certified.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
October 5, 1998.
__________________3 Affidavit of Philip Lupul (27 March 1998) at 4.
4 Letter of P. Lupul to C.M. Patel (6 January 1998) at 3.
6 Wang v. Canada (Minister of Employment & Immigration) (1991), 12 Imm. L.R. (2d) 178 (F.C.A.).
8 Letter from P.Lupul, supra note 3 at 3.
10 3 rd ed. (Oxford: OUP, 1980).
11 R. v. McIntosh, [1995] 1 S.C.R. 686 at para 18.
12 2 nd ed. (Cowansville: Yvon Blais, 1991) at 291.
13 R. v. McIntosh, supra note 11 at para 26.
14 Khaira v. Canada (Minister of Citizenship and Immigration) IMM-3378-95 (12 November 1996) (F.C.T.D.).
15 Malkana v. Canada (Minister of Citizenship and Immigration) IMM-3377-95 (18 December 1996) (F.C.T.D.).