Date: 19990421
Docket: IMM-2678-98
BETWEEN:
KAMLESH KUMAR PATEL,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
McKEOWN J.
[1] The applicant, Kamlesh Kumar Patel, seeks judicial review of the November 16, 1995 decision of the Immigration Officer K.K. Jarth, of the Canadian High Commission, New Delhi, India, wherein said officer determined that the applicant's brothers Hemant Kumar Patel and Krushnakant Patel were not "dependant sons" of Kalidas Parsottamdas Patel, the applicant's father. Krushnakant Patel is no longer included in this application for judicial review.
[2] The issues are whether the Visa Officer erred in determining that private institutes are not "other educational institutions" in section 2(1) of the Immigration Act Regulations, whether section 2(7) of the Regulations was properly applied and whether there was denial of procedural fairness.
[3] Dependant son is defined in section 2(1) as follows:
| "dependent son" means a son who |
| (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 |
| (i) has been continuously enrolled and in attendance in such a program since |
| attaining 19 years of age ..., and |
| (ii) is determined by an immigration officer, on the basis of information |
| received by the immigration officer, to be wholly or substantially financially |
| supported by his parents since attaining 19 years of age ... |
[4] It was agreed that Hemant Kumar Patel was in compliance with the definition until July 1990. He was then enrolled in the Saraswaty Technical Institution for the Fitter Program (1990-1992) and the Electrician Course (1992-1994). On completion of the Electrician Course, Hemant Kumar was enrolled for two year at M.P. Shah Industrial Training Institute. He started this course on August 22, 1994.
[5] The Visa Officer concluded in his refusal letter as follows:
| Saraswati Institute has informed us by a letter dated April 17, 1995 that it is a private institute. Privates institutes are not under the control, management or supervision of any government authority. Certificates issued by private institutes are not acceptable as evidence of educational or technical qualifications of enrollment and attendance. I am not prepared to accept that Hemant Kumar Patel was enrolled and in attendance as a full-time student from July 1990 until August 22, 1994 on the basis of the certificates issued by Saraswati Technical Institute. |
[6] There is nothing in the phrase "other educational institution" which requires the institution to be under the control, management or supervision of any government authority. Surprisingly, the only case on point on this subject is the decision of the Board's Appeal Division in Chandiwal v. Minister of Citizenship and Immigration, T-95-044, September 17, 1997, where member Boire found that a person pursuing a course of Islamic Studies at Madrassa Talimuddin came within "other education institution". He refused to apply the words "recognized" and "not affiliated" to the words "other education institution". I am unable to find any requirements that "other educational institution" include words such as "authorized" or "approved by government". There are good and bad private educational institutions. The Visa Officer does not purport to decide if the one involved before him was good or bad. I do not have to decide if the quality of the institution met reasonable standards since the Visa Officer stated that his refusal was based solely on the institute being a private institute.
[7] I agree with the observation of Pierre André Côté in The Interpretation of Legislation in Canada as quoted by Justice Tremblay-Lamer in Chinubhai Madhavlal Patel v. The Minister of Citizenship and Immigration, IMM-829-98, October 5, 1998, at pages 10 and 11:
| 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 ... |
[8] I cannot read in the words sought by the Minister. Private institutions fall within the words "other educational institutions".
[9] The Visa Officer addressed the words "program of studies" as follows:
| In addition, the definition of a term "dependant son" in section 2(1) of the Immigration Regulations, 1978 and the provision of section 2(7) of the Immigration Regulations, 1978 envisaged with the attendance at a university, college or other education institution should be in respect of a program of studies. Based on the information contained in the forgoing paragraphs, this letter is apparent that both Hemant Kumar Patel and Krushnakant Patel have attended unrelated trade courses. There is no natural progression in the various they have claimed to have completed. In my opinion, they have not pursued any program of studies. |
[10] There is no factual basis for his finding on section 2(7) since he does not purport to say that the applicant interrupted his studies. While his words can also be interpreted as using section 2(7) to assist in looking at section 2(1), I take note that in the Respondent's Factum, the respondent indicated that
| any reliance which the visa officer may have had on section 2(7) of the Immigration Regulations was not central to the final decision and therefore does not constitute an error of law. |
I make no finding on whether Hemant Patel pursued a program of studies as contemplated under section 2(1) in light of the respondents comments in his factum with respect to the applicant's submissions on the visa officer's findings. Accordingly, for purposes of this decision, I accept that using section 2(7) was erroneous and the individuals did not interrupt their studies in the manner contemplated by section 2(7).
[11] In my view, if I am correct in my interpretation of "other educational institutions", the Visa Officer denied the applicant procedural fairness when, after sending letters inquiring into the status of the two technical institutes on February 13, 1995, he indicated in the CAIPS notes "when reply to these letters comes, proceed with deletion letters". The Visa Officer"s letters of inquiry were meaningless since he appears to have already made his decision to "delete" Hemant Kumar Patel as a dependent based on his opinion of the technical institutes. Furthermore, based on the Visa Officer"s Affidavit, he appears to have relied on the poor quality of the applicant"s brothers" answers on their supposed subject matters and yet failed to mention this in his reasons. If I am not correct in my interpretation of "other educational institution", there is no denial of procedural fairness.
[12] The application for judicial review is allowed. The decision of the Visa Officer dated November 16, 1995 is set aside and the application is returned for reassessment by a different Visa Officer in the manner not inconsistent with these reasons.
[13] I certify the following question to be a serious question of general importance:
| "Does an educational institution which is not under the control, management or supervision of any government authority, qualify as a "university, college or other education institution" within the meaning of "dependent son or daughter" in s. 2(1) of the Immigration Regulations?" |
(Sgd.) "William P. McKeown"
Judge
Vancouver, British Columbia
April 21, 1999
[14] FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2678-98 |
| STYLE OF CAUSE: KAMLESH KUMAR PATEL |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: WEDNESDAY, APRIL 7, 1999 |
| PLACE OF HEARING: WINDSOR, ONTARIO |
| REASONS FOR ORDER BY: McKEOWN, J. |
DATED: APRIL 21, 1999
APPEARANCES: Mr. Cecil L. Rotenberg
| For the Applicant |
Ms. Sally Thomas
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg
| Barrister & Solicitor |
| Suite 808 |
| 255 Duncan Mill Road |
| Don Mills, Ontario |
| M3B 3H9 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent