Date: 20020625
Docket: IMM-4532-00
Neutral citation: 2002 FCT 716
Toronto, Ontario, Tuesday, the 25th day of June, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
RAVINDER SINGH BOLA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
- [1] This is an application for judicial review of the decision of a visa officer, dated July 11, 2000, wherein the Applicant was determined not to be a "dependent son" as defined under s.2 of the Immigration Regulations, 1978, ("the Regulations").
- [2] The Applicant's parents applied for permanent residence in Canada and the Applicant was included in their application as a dependent son. The Applicant is 26 years old and has been enrolled in a three-year bachelors program since 1992. In order to support this, the Applicant provided school documents, including transcripts and tuition receipts.
- [3] The Applicant successfully completed the first year of the program; however, from 1994 to 1999, he continuously failed the second year. The Applicant was a member of the college's soccer team and the practices conflicted with class hours. This poor attendance led to his poor academic performance and repeated failures.
- [4] During the interview, the Visa Officer asked the Applicant questions about his English courses. The Applicant was able to name some of his textbooks, but indicated that he had attended only 7 classes in 7 years. The Applicant admitted that the primary reason for his enrolment was to play for the school's soccer team. The Applicant wanted to play and the college readmitted him despite his poor academic performance each year in order to keep him on the team.
- [5] The Visa Officer concluded that the Applicant failed to meet the definition of "dependent son" as follows:
Ravinder Singh Bola has not been able to complete the second year of the three-year B.A. degree program even after the passage of six years and was not "in attendance" as a full-time student in an academic, professional or vocational program since attaining nineteen years of age.
(Applicant's Record, p.8)
- [6] The Applicant brings this judicial review on the grounds that the Visa Officer erred in law by conducting a qualitative assessment of the Applicant's education. In the alternative, the Applicant submits that the decision is unreasonable because the Visa Officer did not conduct a proper qualitative assessment.
- [7] In Sandhu v. M.C.I., [2002] F.C.J. No. 299, the Federal Court of Appeal recently addressed the issue of whether it is permissible to conduct a qualitative assessment under for the definition of "dependent son" or "dependent daughter". Sexton J.A. answered the certified question as follows at paragraph 24:
Under subparagraph 2(1)(b)(i) of the Immigration Regulations a Visa Officer has the authority to determine whether the alleged "dependent son" has been enrolled and in attendance as a full-time student in an educational program in a genuine, meaningful and bona fide respect.
- [8] Thus, a visa officer is entitled to embark on a qualitative assessment of a student's attendance. However, in my opinion, in the present case the Visa Officer did not conduct a proper assessment of either the qualitative or quantitative elements of the Applicant's schooling.
- [9] In the present case, the Visa Officer's qualitative assessment focussed exclusively on the Applicant's knowledge of English. The Applicant submits that this assessment is distinguishable from other cases before this court where visa officers asked applicants about all or a number of the courses taken (Khaira v. M.C.I., [1996] F.C.J. No. 1468; and Malkana v. M.C.I., [1996] F.C.J. No. 1659). In my opinion, the Visa Officer in the present case was not entitled to rely on the Applicant's knowledge of only one subject. English also happened to be the one subject the Applicant repeatedly failed, therefore it is obviously the one subject in which the Applicant had the least knowledge. To base the qualitative assessment on this subject was manifestly unfair as it amounted to setting the Applicant up for failure.
- [10] In addition, in terms of a quantitative assessment, the Applicant indicated to the Visa Officer that while he missed classes because of soccer, he did attend the other classes regularly. In my opinion, the facts of this case indicate that the Applicant was in fact in full-time attendance at school. While he may not have attended all his classes, the Applicant was fulfilling the expectations of the school through his commitment to the college's soccer team.
- [11] In my opinion, the Visa Officer's decision was made without regard to the evidence before her. In Sandhu, supra, Sexton J.A. established that a failure to demonstrate a rudimentary knowledge of the subjects studied may lead to a finding that a person is not a bona fide student, but, indeed, it is recognized that poor academic performance in and of itself is not a sufficient basis to make such a finding.
- [12] In my opinion, in a given fact situation, it might very well be necessary for a visa officer to determine the worth of a student's contribution to the education institution he or she attends. This can only be done by asking for information about the value the institution places on a student's efforts. I find that this is such a case.
- [13] In the present case, it seems on the evidence that the academic institution placed great value on the Applicant's attendance because of his excellence in soccer. I think that credit should be given to him for this recognized skill and his perseverance to continue with this attendance for the years described. The Applicant was perfectly honest in his answers to the Visa Officer's questions, and, in my opinion, no negative inference should be applied because he is not an academic star.
- [14] Clearly, the Applicant's contribution to his institution is what kept him there.
- [15] My fault finding with the decision rendered is that the Visa Officer focussed solely on part of the Applicant's academic performance to the exclusion of all else. On the evidence, the Applicant is an honest, hard working youth who did what his academic institution expected of him. To limit the qualitative investigation of his attendance at the institution to purely academic performance, is, in my opinion, a reviewable error.
ORDER
1. Accordingly, the decision is set aside and the matter is referred back for redetermination by a different visa officer.
"Douglas R. Campbell"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4532-00
STYLE OF CAUSE: RAVINDER SINGH BOLA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, JUNE 25, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: TUESDAY, JUNE 25, 2002
APPEARANCES: Ms. Shoshana T. Green
For the Applicant
Mr. Lorne MacClenaghan
For the Respondent
SOLICITORS OF RECORD: Green & Spiegel
Barristers & Solicitors
Suite 2200, Box 114.
121 King Street West
Toronto, Ontario
M5H 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020625
Docket:IMM-4532-00
Between:
RAVINDER SINGH BOLA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER