Patel v. Canada (Minister of Citizenship and Immigration), (2011) 419 N.R. 321 (FCA)

• Judge: Sexton, Dawson and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 11, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 419 N.R. 321 (FCA);2011 FCA 187

Patel v. Can. (M.C.I.) (2011), 419 N.R. 321 (FCA)

MLB headnote and full text

Temp. Cite: [2011] N.R. TBEd. JL.006

The Minister of Citizenship and Immigration (appellant) v. Jigarkumar Patel (respondent)

(A-449-10; 2011 FCA 187)

Indexed As: Patel v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Sexton, Dawson and Stratas, JJ.A.

June 2, 2011.

Summary:

Patel applied for permanent residence as a member of the federal skilled worker class. He claimed 74 selection points, including five points for adaptability based upon his two years of Canadian post-secondary study. He had completed a one year program at Canada Career College and had attended one semester at another college. A visa officer refused the application on the basis that it merited only 63 out of the required 67 selection points. The officer awarded no selection points for adaptability for Patel's period of post-secondary study. Patel applied for judicial review.

The Federal Court, in a decision reported at 375 F.T.R. 115, allowed the application. The court certified the following question: "In assessing adaptability under s. 83 of the Immigration and Refugee Protection Regulations, should a visa officer aggregate programs of study that do not each constitute two years of full-time study of at least two years' duration at a post-secondary institution in Canada and award points if the total period of study amounts to or exceeds two years of full-time study at one or more post-secondary institutions?". The Minister appealed.

The Federal Court of Appeal allowed the appeal, dismissed Patel's application for judicial review and answered the certified question in the negative.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - [See Aliens - Topic 1233 ].

Aliens - Topic 1233

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment or points - Occupations or economic class (incl. skilled workers) - The applicant applied for permanent residence as a member of the federal skilled worker class - He had completed a one-year program of study at one school in Canada and then completed one semester at a different school - The programs enrolled in were distinct programs - A visa officer viewed s. 83(3) of the Immigration and Refugee Protection Act Regulations to require study at a post-secondary Canadian institution in a single program of full-time study of at least two years' duration, and awarded no selection points for adaptability - The Federal Court of Appeal found that the visa officer correctly interpreted s. 83(3) - Such an interpretation was consistent with the plain meaning of both the English and French versions of the text - Moreover, the French version was express that one program had to be successfully completed - The officer's interpretation was also consistent with the statutory context and the purpose of the legislation - Disparate programs were less likely to teach skills that would lead to economic establishment - The court therefore disagreed with the judge's statement that there was no policy rationale that supported the officer's interpretation - See paragraphs 29 to 35 - The officer's application of s. 83(3) to the facts was reasonable - While the officer's reasons were brief, they provided a transparent and intelligible justification for the decision - Further, no reviewable error had been shown in the officer's appreciation of the evidence - The applicant had not completed a single program of full-time study of at least two years' duration - See paragraphs 36 to 39.

Aliens - Topic 1233.4

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Education - [See Aliens - Topic 1233 ].

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - The applicant sought an order quashing a decision of a visa officer, by which his application for permanent residence under the skilled worker class was refused - The visa officer refused to award any points for the applicant's adaptability based, in part, upon an interpretation of s. 83 of the Immigration and Refugee Protection Act Regulations that required full-time attendance for two years in a single academic program at a single accredited institution - The reviewing judge did not agree with the Minister's assertion that the principal issue had to be assessed on the standard of reasonableness - The primary basis for the visa officer's decision involved the interpretation of s. 83, raising an issue of law which had to be reviewed on the standard of correctness - The judge accepted that the issue of whether the applicant completed two years of study as required by s. 83 involved an issue of mixed fact and law attracting a standard of review of reasonableness - The Federal Court of Appeal held that the jurisprudence had already determined that a visa officer's interpretation of the Act or the Regulations was reviewable on the standard of correctness - It followed that the judge did not err by reviewing the visa officer's interpretation of s. 83(3) of the Regulations on the standard of correctness - See paragraphs 22 to 28.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Aliens - Topic 1233 ].

Statutes - Topic 530

Interpretation - General principles - Social or economic policy considerations - [See Aliens - Topic 1233 ].

Statutes - Topic 1607

Interpretation - Extrinsic aids - Policy of legislation - [See Aliens - Topic 1233 ].

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - [See Aliens - Topic 1233 ].

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - [See Aliens - Topic 1233 ].

Cases Noticed:

Telfer v. Canada Revenue Agency, [2009] 4 C.T.C. 123; 386 N.R. 212; 2009 FCA 23, refd to. [para. 22].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 24].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 24].

Celgene Corp. v. Canada (Attorney General) (2011), 410 N.R. 127; 2011 SCC 1, refd to. [para. 24].

Shahid v. Canada (Minister of Citizenship and Immigration) (2011), 419 N.R. 259; 2011 FCA 40, appld. [para. 24].

de Jong v. Canada (Minister of Citizenship and Immigration) - see Hilewitz v. Canada (Minister of Citizenship and Immigration).

Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706; 340 N.R. 102; 2005 SCC 57, refd to. [para. 27].

dela Fuente v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 387; 350 N.R. 362; 2006 FCA 186, refd to. [para. 27].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 32].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 12(2) [para. 6]; sect. 14(2)(a) [para. 7].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 70(2)(b) [para. 8]; sect. 72(1)(d) [para. 9]; sect. 75(1) [para. 10]; sect. 76(1)(vi) [para. 12]; sect. 76(2) [para. 13]; sect. 83(1)(b), sect. 83(3) [para. 14].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Asha Gafar and Alex Kam, for the appellant;

Cathryn D. Sawicki, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Green and Spiegel, LLP, for the respondent.

This appeal was heard on May 11, 2011, at Toronto, Ontario, before Sexton, Dawson and Stratas, JJ.A., of the Federal Court of Appeal. In written reasons by Dawson, J.A., the Court of Appeal delivered the following judgment at Ottawa, Ontario, dated June 2, 2011.