Date: 20021206
Docket: IMM-3271-01
Neutral citation: 2002 FCT 1265
Ottawa, Ontario, Friday, this 6th day of December, 2002.
Present: THE HONOURABLE MR. JUSTICE KELEN
Between:
MOHAN SINGH DHILLON
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of the Doug Haaland, visa officer at the Canadian High Commission in New Delhi, India, dated June 11, 2001, wherein the applicant's son was found not be a "dependent son" as defined in the Immigration Regulations, 1978, OR/78-172 (the "Regulations").
[2] The applicant and his wife are citizens of India who applied for permanent residence as members of the family class in May 2000. Their application was sponsored by the their eldest son Gurpreet Singh, who is a permanent resident of Canada. Harpreet Singh Dhillon, born July 31, 1977 and unmarried, is the couple's youngest son was included on the application as a dependent son based on his status as a full-time student.
[3] At the time of the interview, the applicant's son had written his exams for second year B.A. and was awaiting his results. He was admitted to college in 1997 at R.S.D. College in Ferozapur, but failed his first two years and moved to Guru Nanak College in Ferozapur to continue his studies in 1999. In his first year he failed two subjects, English and History, but passed the remainder of his courses. After the interview Harpreet received passing marks for his exams for second year B.A. However, as this evidence was not before the officer at the time of his decision, the Court has disregarded it.
[4] The officer found Harpreet did not qualify as a dependent son. The reasons for the refusal were contained in a letter to the applicant dated June 11, 2001 (at p. 16 of the certified tribunal record):
[...] According to information provided to me at your interview in New Delhi on 07 June 2001, it is contended that Harpreet Singh Dhillon is a regular, full time student. However, contradictory information was provided by you at your interview with respect to the number of hours per day your son attends school. You provided information which suggests that he works on the family farm with you for perhaps as much time as he apparently attends school.
You contend that Harpreet Singh Dhillon has been atending college for four academic years, but has yet to pass all of his subjects. At his interview, Harpreet Singh Dhillon was vague on the material covered during his most recent year of college, he could not adequately explain why he has made no academic progress for four years, nor could he adequately explain why he was continuing in college. His lack of academic progress is even more astounding, given the amount of time he claims to spend at college and in study. Harpreet Singh Dhillon does not appear to have any clear purpose or objective for continuing his education. I am of the opinion he is doing so for the sole purpose of qualifying for immigration as your dependent son.
[5] Dependent son is defined in subsection 2(1) of the Regulations. The relevant portion of the definition states:
"dependent son" means a son who
[...]
(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
(ii) is determined by an immigration officer, on the basis of information received by the immigration officer, to be wholly or substantially financially supported by his parents since attaining 19 years of age or, if married before 19 years of age, the time of his marriage [...]
"fils à charge" Fils :
[...]
b) soit qui est inscrit à une université, un collège ou un autre établissement d'enseignement et y suit à temps plein des cours de formation générale, théorique ou professionnelle, et qui :
(i) d'une part, y a été inscrit et y a suivi sans interruption ce genre de cours depuis la date de ses 19 ans ou, s'il était déjà marié à cette date, depuis la date de son mariage,
(ii) d'autre part, selon un agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, a été entièrement ou en grande partie à la charge financière de ses parents depuis la date de ses 19 ans ou, s'il était déjà marié à cette date, depuis la date de son mariage; [...]
[6] It is not disputed that the applicant son's has been enrolled in college since attaining 19 years of age. At issue is whether the officer erred by finding that Harpreet's enrollment and physical presence in college were not sufficient for him to qualify as a dependent. The applicant submits that a visa officer cannot impute a qualitative aspect towards his or her determination of whether an individual is a full time student.
[7] When the parties made written submissions, the jurisprudence regarding this issue did not give a clear answer on whether there was a qualitative element to attendance as a full-time student. There were a number of conflicting decisions on this point, see Dhami v. Canada (Minister of Citizenship and Immigration), 2001 FCT 805, in which Madam Justice Dawson conducted a thorough review of the relevant case law.
[8] The Federal Court of Appeal has since dealt with the issue in Sandhu v. Canada (Minister of Citizenship), 2002 FCA 79. Writing for the Court, Mr. Justice Sexton concluded at paras. 19-22:
In my view, the words "enrolled and in attendance as a full-time student" require that the student, on a continuous basis, make a bona fide attempt to assimilate the material of the subjects in which the student is enrolled.
This does not suggest that a student must be either successful in the examinations or that the student have acquired a mastery of the subject. What is required is a genuine effort on the part of the student to acquire the knowledge that the course seeks to impart.
Thus a visa officer is required to consider more than mere physical attendance in determining whether the person has been "in attendance as a full-time student" and must make sufficient inquiries in order to satisfy himself that the student meets the requirements of subparagraph 2(1)(b)(i).
The factors which should be considered in making such a determination could include the following, although this list may well not be exhaustive. First is the record of the student's actual attendance. Second is the grades the student achieved. Third is whether the student can discuss the subjects studied in, at the very least, a rudimentary fashion. Fourth is whether the student is progressing satisfactorily in an academic program. Fifth is whether the student has made a genuine and meaningful effort to assimilate the knowledge in the courses being studied. The factors might perhaps be summed up by asking whether the person is a bona fide student. While one could be a bona fide student and still have a poor academic performance, in such cases visa officers ought to satisfy themselves that, nevertheless, students have made a genuine effort in their studies.
In accordance with the decision Sandhu, the officer was entitled to conduct a qualitative assessment in determining whether the applicant's son was a genuine full-time student.
[9] But this does not dispose of the case. The Court must ensure that the visa officer did not err in making his qualitative assessment. As this is a question of mixed fact and law, the Court will show deference to the officer's decision. With respect to the appropriate standard when reviewing an officer's assessment of whether an individual is a genuine full-time student, Mr. Justice MacKay in Mir-Hussaini v. Canada (Minister of Citizenship and Immigration), 2002 FCT 291 at para. 11:
Following [Chalaby v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 66], I find that in this case much deference should be shown to the visa officer's decision. Unless the visa officer acts in bad faith, breaches natural justice requirements or fails to consider relevant evidence this Court should not intervene [see Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2].
In this case the visa officer did not act in bad faith and did consider the relevant evidence. There is no allegation that there has been a breach of natural justice. In the reasons for the refusal set out in paragraph [4] above, the visa officer explained the reasons why he concluded that Harpreet Singh Dhillon is not a bona fides student, but is only attending college for immigration purposes. The visa officer is in the best position to conduct this qualitative assessment. Since the reasons cited by the visa officer have a rational basis, this Court will not interfere. The Court should not substitute its opinion for that of the visa officer with respect to whether a person is a bona fides student unless the reasons of the visa officer do not have a rational basis that stands up to a somewhat probing examination.
[10] Neither counsel posed a question for certification.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. This application for judicial review is denied.
2. No question is certified.
(Signed) Michael A. Kelen _________________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3271-01
STYLE OF CAUSE: MOHAN SINGH DHILLON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, NOVEMBER 26, 2002
REASONS FOR ORDER
AND ORDER BY: KELEN, J
DATED: FRIDAY, DECEMBER 6, 2002
APPEARANCES BY: Sabrina Tozzi
For the Applicant
Robert Bafaro
For the Respondent
SOLICITORS OF RECORD: Sabrina Tozzi
Green & Speigel Law Corporation
Box 114, Standard Life Centre
2200-121 King St. W
Toronto M5H 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021206
Docket: IMM-3271-01
BETWEEN:
MOHAN SINGH DHILLON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER