Date: 20040114
Docket: IMM-6090-02
Citation: 2004 FC 55
Toronto, Ontario, January 14th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
JUNG HEE KIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of Immigration Officer, David Rydygier (the "officer"), dated October 15, 2002. In that decision, the officer denied Mr. Jung Hee Kim's application to extend his study permit in Canada. Mr. Kim seeks an order setting aside the officer's decision.
BACKGROUND
[2] Mr. Kim is a citizen of South Korea. He came to Canada in February 1997 on a student authorization to study English as a Second Language ("ESL") at George Brown College. His spouse accompanied him to Canada. He began studying ESL courses at George Brown College in January 1998. He attests that from the time he first arrived in Canada up until he began his course at George Brown College, he took private tutoring in English. Mr. Kim consecutively renewed his student authorization until September 2002.
[3] By letter dated July 24, 2002 George Brown College confirmed that Mr. Kim was then currently registered in the "Business Administration-Management Studies (B145)" program. The letter states that Mr. Kim was currently enrolled in the first semester of this program and that the end date of this program was December 15, 2004, with graduation ceremonies to be held at the end of June 2005.
[4] Through application forms signed on July 29, 2002 the applicant applied for an extension of his student authorization in Canada. He requested this extension until August 31, 2005.
[5] Mr. Kim and his spouse attended an interview with the officer on October 15, 2002. Mr. Kim attests in his affidavit that this interview was scheduled on short notice and he was given no explanation as to the nature of the interview. He attests that he assumed that he was going to the Citizenship and Immigration Canada ("CIC") office to receive his extension of his study permit.
[6] Both prior to and during the interview, the officer attests that he spoke with a representative at George Brown College and obtained information about Mr. Kim's studies there.
The Officer's Decision
[7] The officer's decision was conveyed by letter dated October 15, 2002. The officer also attests that he told the applicant that he would not be extending his study permit at the end of the interview. The refusal letter stated that the permit was refused on the following ground:
It appears your original reason or purpose for coming to Canada has been satisfied. Your application is therefore refused.
[8] The refusal letter of October 15, 2002 indicated that the applicant had applied for a "Temporary Resident Status Extension", rather than an application for a "Study Permit". The officer acknowledges that this was in error, due to a computer processing problem at the CIC office. This error was clarified when Mr. Kim received a faxed copy of the officer's notes for decision on November 21, 2002. These notes form the reasons for decision.
[9] From these notes it is apparent that the officer did not believe that Mr. Kim was a bona fide student, given the length of time he had spent pursuing a diploma in Canada with a minimal course load, and at times not attending courses at all.
APPLICANT'S SUBMISSIONS
[10] The applicant submits that he was denied procedural fairness, in that the officer obtained information from George Brown College and relied on such information without sharing this evidence and his concerns in relation to it with the applicant. Mr. Kim attests in his affidavit filed in this proceeding that the officer did not share with him the information he obtained by telephone from George Brown College before and during the interview. Mr. Kim says he was denied the opportunity to respond to this extrinsic evidence gathered by the officer.
[11] The applicant also submits that the officer's statements in his affidavit filed in this proceeding are not consistent with the Field Operating Support System ("FOSS") notes recorded during his interview. Nowhere in these notes does the officer indicate that he relayed to Mr. Kim the information obtained via telephone from George Brown College, nor do these notes indicate any response, even an unsatisfactory one, made by Mr. Kim to such information. A recording of such response would be expected, submits the applicant, if the extrinsic information had truly been presented to him at the interview. The applicant points out that, in contrast to the officer's affidavit, the FOSS notes are "completely silent" about the sharing of the important information the officer obtained from George Brown College.
[12] The applicant relies on the immigration guidelines, OP 12 Students, section 5.14, which instructs officers to inform applicants of any outside information that is relied upon and provide applicants an opportunity to address concerns of an officer that arise from such information.
[13] The applicant also argues that the officer ignored evidence in making his decision. He refers to the evidence attached to his affidavit. At the hearing of this matter, the applicant acknowledged that certain exhibits attached to his affidavit were not before the officer when he made his decision. However, the applicant argues that this affidavit and attached exhibits should still be considered by this Court for the purpose of assessing the applicant's credibility. Also, the applicant submits that the officer relied on irrelevant factors, namely his school grades and the percentage of courses completed in refusing his application.
RESPONDENT'S SUBMISSIONS
[14] The respondent argued, in her written material, that this Court should strike certain paragraphs of the applicant's affidavit, and exhibits "I", "K" and "L" attached thereto, as this evidence was not before the officer when he made his decision. These exhibits post-date the decision and are not contained in the tribunal record. Upon hearing of this matter, the respondent submitted that such information should not be struck, wholesale, but be considered only in assessing the applicant's credibility. The respondent also argued that this evidence, which was not before the officer, cannot be used to impugn the decision under review.
[15] The respondent submits that the officer's decision was reasonable and made in accordance with the principles of natural justice. The officer attests in his affidavit filed in this proceeding, that he shared all of the information he obtained from George Brown College with the applicant. The respondent relies on the FOSS notes, recorded by the officer at the time of the interview, which form the reasons for the decision under review, and argues that these notes demonstrate that the officer's concerns regarding the applicant's schooling were put before the applicant during his interview. The officer attests that he provided Mr. Kim an opportunity to respond to these concerns, however, the applicant was not able to counter such concerns to the satisfaction of the officer.
[16] The respondent submits that the onus of demonstrating the bona fides of one's intention to remain in Canada on a temporary basis as a student was on the applicant. In this case, the applicant failed to discharge this onus.
[17] Further, the respondent submits that the applicant has not demonstrated that the officer ignored evidence. The respondent argues that the applicant failed to provide the officer with additional information relative to Mr. Kim's studies at other institutions and his personal difficulties with his child.
[18] Finally, the respondent submits that the officer did not base his decision on any irrelevant factors. The officer attests that he considered Mr. Kim's grades and percentage of course load undertaken in order to determine whether he had a bona fide intention to leave Canada following the completion of his studies, as mandated by section 216(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").
ISSUES
[19] 1. What weight should be given to the applicant's affidavit and what evidence was before the officer when he made his decision?
2. Did the officer fail to adhere to the principles of procedural fairness in making his decision not to extend Mr. Kim's study permit in Canada?
ANALYSIS
[20] A preliminary matter in this judicial review is the issue of whether certain evidence, attached to Mr. Kim's affidavit in this proceeding, was before the officer when he made his decision. It is well established that evidence that was not before the decision-maker when she made her decision cannot be introduced on an application for judicial review in order to impugn the decision: Lemeicha v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R. 49 and Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713 (T.D)(QL). Some of the evidence referred to in Mr. Kim's affidavit and particularly exhibits "I", "K" and "L" were not before the officer when he made his decision. Therefore, I will not accord these portions of his affidavit and the exhibits which post-date the decision any weight, in a substantive sense. This evidence cannot be used to argue that the officer failed to consider evidence that was not before him when he made his decision on October 15, 2002.
[21] However, such evidence can be used to assess the credibility of the applicant's statement that he was not informed of the officer's concerns at the interview. The respondent has argued that the exhibits attached to Mr. Kim's affidavit reveal that within days of the interview he went to get information related to his course load and why he had to defer his studies. In my opinion, Mr. Kim's own material undermines the credibility of his statement in his affidavit that the officer's concerns were not relayed to him during the interview. The evidence he gathered post-decision indicates that he must have understood the officer's concerns. Such concerns were born out of the information the officer received by telephone from George Brown College, and therefore, the officer must have conveyed such information to the applicant.
[22] This case presents a crucial evidentiary disagreement. Both affidavits filed in this proceeding present opposing evidence in relation to the determinative issue in this review, namely, whether the officer informed Mr. Kim of the evidence he had obtained from a representative at George Brown College regarding his attendance and programs studied there. Mr. Kim attests that he was not made aware of this information or given an opportunity to respond to it. The officer attests that he did in fact relay this information to the applicant during the interview.
[23] In my view, the officer's version of events is to be preferred, based upon my negative credibility assessment of the statement in Mr. Kim's affidavit, namely, that he was not told of the information received by the officer from George Brown College or given an opportunity to respond to it. Mr. Kim's actions following the interview suggest that the officer's concerns were made known to him during the interview. Further, the final page of the FOSS notes supports the conclusion that Mr. Kim was informed of the officer's concerns, as otherwise the officer would not have written that Mr. Kim stated that he could not study because of his children. I find, therefore, that procedural fairness was respected in this case.
[24] The respondent submits that the officer was under no obligation to record the applicant's responses in his FOSS notes and therefore the fact that these notes do not contain any detailed responses from the applicant does not provide assistance in answering the question whether the officer respected procedural fairness. I do not accept this submission. Silence in an officer's notes regarding an applicant's responses to an officer's concerns often gives important insight into whether procedural fairness was respected. It should be pointed out that the record-keeping system of the CIC is entirely within an immigration officer's control, and an applicant should be able to trust that an officer will record a fair, accurate and complete description of what transpires at an interview, including an applicant's responses to questions. For a variety of reasons, the notes kept by an officer in an immigration interview are often not a complete snapshot of the interview. One of these reasons may, in certain cases, be that the officer failed to apprise an applicant of her concerns with an application.
[25] It is preferable for an officer to record an applicant's responses to information, particularly when such information was gathered from an outside source by the officer. While there may be no legal obligation on an officer to record such information, it is a more practical and consistent way to make decisions. Often, a decision is not immediately made and an officer who has recorded both his impressions and knowledge of an applicant's situation in addition to an applicant's responses can more easily and fairly make an informed decision. A full, contemporaneous record of an immigration interview also assists the court if the matter is judicially reviewed.
[26] Concerning the applicant's other arguments, I am not persuaded that the officer took into account irrelevant considerations or ignored evidence before him in coming to his decision. The percentage of course load undertaken, an applicant's grades and the length of time taken to pursue a study programme, including intervals where an applicant was not studying, are all relevant considerations in assessing whether an applicant continues to be a bona fide student.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question for certification arises.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6090-02
STYLE OF CAUSE: JUNG HEE KIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: JANUARY 13, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: JANUARY 14, 2004
APPEARANCES:
Mr. Harvey Savage
For the Applicant
Ms. Pamela Larmondin
For the Respondent
SOLICITORS OF RECORD:
Harvey Savage
Barrister and Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
For the Respondent
FEDERAL COURT
TRIAL DIVISION
Date: 20040114
Docket: IMM-6090-02
BETWEEN:
JUNG HEE KIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER