Date: 20020823
Docket: IMM-388-01
Neutral citation: 2002 FCT 906
BETWEEN:
SUKH RAJNI SHARMA
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN, J.A. (ex officio)
[1] This is a judicial review of a decision of a visa officer's finding that the applicant was not
a "dependent daughter" as defined in subsection 2(1) of the Immigration Regulations, 1978. The applicant, who was about 24 years of age at the relevant time, claimed to be enrolled and in attendance as a full-time student. However, the visa officer found that because she had failed Plus 2, (grade 12) three times, had changed institutions and chose different streams of study - computers, cutting and tailoring, she did not meet the qualitative aspects of being a full-time regular student and, therefore, was not a "dependent daughter".
[2] For purposes of this case, the relevant school year was 2000-2001. Having failed Plus 2 twice in 1995 and 1996, failed and then passed a computer course in 1997 and 1998, "cleared" a cutting and tailoring course in 1999 and again failed Plus 2 in 2000, the applicant was back taking Plus 2 for the fourth time in the 2000-2001 school year. The applicant argues that the visa officer did not dispute that she was in full-time attendance at school in the relevant school year. Further, she says, the visa officer did not conduct an in-depth questioning to see if she could discuss the subjects she studied. And finally, she asserts that it should not be held against her that she went back a fourth time to try to pass Plus 2.
[3] In Sandhu v. Canada (Minister of Citizenship and Immigration) (2002), 211 D.L.R. (4th)
567, Sexton J.A. found, at paragraph 24, that the education qualification for being a "dependent son" (or daughter) is whether the individual "has been enrolled and in attendance as a full-time student in an educational program in a genuine, meaningful and bona fide respect". At paragraph 22, he noted that to make this determination, factors to be considered include the record of the student's actual attendance, the grades the student obtained, whether the student can discuss the subjects studied in at least a rudimentary fashion, whether the student is progressing satisfactorily in an academic program and whether the student has made a genuine and meaningful effort to assimilate the knowledge in the courses being studied.
[4] The question in the present case is whether the applicant was a full-time student in a
genuine, meaningful and bona fide respect.
[5] Although there was no attendance record in evidence before the visa officer, his CAIPS
notes indicate "if attendance full-time, would expect better results", suggesting that he was in doubt that the applicant was in full-time attendance. Having regard to the other factors listed in Sandhu, the applicant had failed Plus 2 three times and was in that course of study for the fourth time, suggesting she was not progressing satisfactorily in her academic program and that she was not making a genuine and meaningful effort to assimilate the knowledge in the courses she was studying.
[6] I acknowledge that academic grades alone may not be a sufficient basis on which to draw inferences about whether an individual is a bona fide student in all cases. However, when a person has failed Plus 2 twice, has taken and completed other training and then returns and fails Plus 2 a third time, and finally, in the year of the interview, is taking Plus 2 again, I do not think it was unreasonable for the visa officer to infer that the applicant did not meet the qualitative aspects of being a student, or, to use the words of Sandhu, that she was not enrolled and in attendance in a genuine, meaningful and bona fide respect.
[7] As noted in Sandhu at paragraphs 16 and 17, the recognition of individuals as
dependents for immigration purposes, if they are students, arises from the value Canadian society places on higher education. However, that policy objective cannot be accomplished when a student makes no effort to study and understand the courses in which the student is enrolled. Accordingly, it is appropriate for a visa officer to consider whether an applicant is, in reality, making an effort to study and understand the courses in which she is enrolled, or whether, as in this case, she is enrolled merely for the purpose of qualifying as a "dependent daughter". The policy objective of recognizing higher education is hardly served if individuals can qualify as dependent sons or daughters merely by being enrolled or even attending, if there is no effort to study and understand and assimilate the knowledge in the courses being offered - in other words, if they are not bona fide students.
[8] The determination by the visa officer of whether an individual satisfies these criteria is
entitled to significant deference by the Court. In this case, having regard to the facts before the visa officer, I cannot say that the visa officer's conclusion was unreasonable. I would, therefore, dismiss this judicial review.
"Marshall Rothstein"
Judge
Toronto, Ontario
August 23, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-388-01
STYLE OF CAUSE: SUKH RAJNI SHARMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, AUGUST 21, 2002
REASONS FOR ORDER BY: ROTHSTEIN J.A.
DATED: FRIDAY, AUGUST 23, 2002
APPEARANCES BY: Ms. Shoshana Green
For the Applicant
Ms. Catherine Vasilaros
For the Respondent
SOLICITORS OF RECORD: Shoshana Green
Green & Spiegel
Barristers and Solicitors
121 King Street W, Suite 2200 P.O. Box 114
Toronto, Ontario
M5H 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020823
Docket: IMM-388-01
BETWEEN:
SUKH RAJNI SHARMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER