Federal Court Decisions

     IMM-3008-95

BETWEEN:

     GURDEV SINGH DHESI,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

DUBÉ, J.

     This application is for a judicial review of the decision of the Visa Officer at the Canadian High Commission in New Delhi, India, wherein he refused the applicant's application for permanent residence in Canada on the ground that he was not a "dependent son" as defined in s. 2 of the Immigration Regulations (1978) which reads 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

(i) has been continuously enrolled and in attendance in such a program since attaining 19 years of age or, if married before 19 years of age, the time of his marriage, and ...

     The Visa Officer found that the applicant had not been attending school from March 1990 to April 1, 1991 and was not therefore "continuously enrolled and in attendance" in an educational program. The Visa Officer based his finding on answers that the applicant gave to his questions. According to the Visa Officer's notes the applicant answered as follows:

Q. What did you in 1989 after class A. Took admission in plus one at Bilga.

Q. When did you take admission A. June 1989.

Q. When did you finish plus one. A. March 1990.

Q. When did you take admission in plus two. A. April 1991.

Q. Were you out of school from March 1990 until April 1991. A. Yes.

Q. When did you finish plus two. A. March 1992.

Q. When did you finish plus two. A. June 1991.

Q. Did you study privately? A. No.

Q. Why does your supplementary information form say you studied privately. A. It is a mistake

Q. When did you start B.A. Part 1. A. June 1991.

(my emphasis)

     Thus, the applicant did indeed answer yes to the question "were you out of school from March 1990 until April 1991", but his answers are contradictory and tend to show that the applicant was confused. In his own application for permanent residence in Canada, a document which was before the Visa Officer, the applicant outlined the details of his education as follows:

15 DETAILS OF MAY POST SECONDARY EDUCATION
DATES		NAME OF INSTITUTION      (INCLUDING APPRENTICESHIP AND TRAINING)	CITY AND COUNTRY	TYPE OF CERTIFICATE OR DIPLOMA ISSUED
FROM M      Y	TO M      Y
* 78	* 83	GOV'T PRIMARY SCHOOL, RUPOWAL	JALANDHAR (INDIA)	PRIMARY
* 83	* 90	GOV'T HIGH SCHOOL PASLA	JALANDHAR (INDIA)	MATRIC
* 90	* 91	SENIOR SECONDARY SCHOOL, BILGA	JALANDHAR (INDIA)	HSC
* 91	* 94	STUDENT OF BA K.R.M.D AV COLLEGE	JALANDHAR (INDIA)	BA STUDENT

     Another document on record, a certificate from the Punjab School Education Board, certifies that the applicant "passed the Senior Secondary Certificate Examination Part-II, held in April 1991 obtaining 197 marks out of 450 marks in the third division".

     Faced with these obvious contradictions between the above oral answers and the documents referred to, there was a duty of fairness upon the Visa Officer to clarify the matter. At a minimum, the Visa Officer ought to have asked the applicant, who was 19 years old during the year in question, where he was during that period if not in school, since the latter has claimed to have been a full-time student throughout those years. There is a duty upon a tribunal to deal with the totality of the evidence and to further explore obvious contradictions between the oral evidence of a witness, who may be nervous (although he may, as in this instance, have answered that he was not nervous) and previous information provided in writing under a solemn declaration.

     Consequently, the decision of the Visa Officer is quashed and the matter is referred back to the respondent for reconsideration consistent with these reasons.

                            

                                 Judge

Vancouver, British Columbia

January 8th, 1997