Date: 20021212
Docket: IMM-2642-02
Neutral citation: 2002 FCT 1290
Ottawa, Ontario, Thursday the 12th day of December 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
KULWANT SINGH BHANGOO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DAWSON J.
[1] This is an application for judicial review of the decision of a visa officer at the Canadian High Commission in New Delhi, India, dated May 6, 2002, to remove the applicant from his mother's application for permanent residence in Canada. The visa officer found that the applicant was not a "dependent son", within the meaning of subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172.
[2] The applicant was interviewed by the visa officer. During the interview the applicant confirmed that he passed his matriculation examination on his first attempt in 1995, and that he passed his 10+1 examination on his first attempt in 1996. However, the applicant encountered considerable difficulty passing some subjects in his 10+2 academic year.
[3] The applicant failed his first attempt to pass the 10+2 examinations in March of 1997, and failed in his second attempt in March of 1998. In both 1997 and 1998, the grades the applicant received in the failed subjects were too low to obtain a compartment. A compartment is conferred in India when a student does not obtained a passing mark in one or two subjects, but the mark is not sufficiently low to register as a failure. The student is given the opportunity to write an examination for that subject or subjects twice in the future for the purpose of passing the academic year. While trying to pass a subject, a student is allowed to enroll in a higher grade level, but the student cannot write the higher level examination if he or she fails the compartment.
[4] In 1999, on his third attempt, the applicant passed the examinations in all of the subjects taken in the 10+2 academic year.
[5] During the interview the visa officer entered her interview notes in WordPerfect, and then transferred them into the Computer Assisted Immigration Processing System ("CAIPS") notes. The officer swore in her affidavit filed in opposition to the application for judicial review that her notes recorded all of the relevant information provided by the applicant during the interview, and that all of the relevant information provided was therefore contained in the CAIPS notes.
[6] The CAIPS notes reflect that during the interview the following questions were asked and answered:
What did you study in your history course? They thought [sic] us about Indus civilization, Indian emperors. Anything specific you remember? No. Do you remember any of the final exam questions? No.
[7] The tribunal record contains transcripts provided by the applicant which show that in his three years of study at the 10+2 level, the applicant obtained the following marks:
Subject (pass mark) 1996-97 1997-98 1998-99
English (25) 4 14 25
Punjabi (25) 28 50 43
History (33) 13 37 42
Phys. Ed. (10 + 23) 8 + 30 11+41 10+32
Political Science (33) 34 25 N/A
Punjabi (elective)(33) N/A N/A 33
3 failures 2 failures 0 failures
[8] Following the interview the visa officer concluded that, contrary to the applicant's assertion, the applicant was not in full-time attendance at school during the 1996-97 and the 1997-98 academic years. The visa officer so concluded for two reasons. First, in the officer's words, "[i]t is highly improbable that he would pass completely after 2 complete failures. Normally students would have a compartment in one or 2 subjects, and then finally pass. This contrast in this progression is such that I am not satisfied that he was in full time attendance at the 10+2 courses during 2 years: 96/97 and 97/98". Second, in the visa officer's view, the applicant's lack of knowledge of the subjects he had studied and his repeated failures confirmed his lack of attendance in the first two years.
[9] It is settled law that an immigration officer may consider an applicant's academic performance as a factor when assessing whether an applicant was enrolled and in attendance as a full-time student. Thus, in Sandhu v.Canada (Minister of Citizenship and Immigration) (2002), 287 N.R. 97 (F.C.A.) Mr. Justice Sexton, writing for the Court, confirmed, at paragraph 25, that:
Under s. 2(1)(b)(i) of the Immigration Regulations a Visa Officer has 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.
[10] However, Mr. Justice Sexton also confirmed, at paragraph 19, that poor academic performance is by and of itself an insufficient basis upon which to conclude that an applicant was not in attendance as a full-time student.
[11] Central to the visa officer's decision was her conclusion that the contrast in progression between the first two attempts and the final attempt to pass the 10+2 academic year demonstrated that the applicant had not been in attendance on his first two attempts. However, review of the applicant's marks set out above reveals a gradual, not sudden, progression as found by the officer. In the applicant's first year of study he failed English with a mark of 4, which rose to a mark of 14 in his second year, and which rose to a passing mark of 25 in the third attempt. In his first attempt, he passed two courses out of five, in his second attempt he passed three courses out of five, and in his third attempt he passed all five courses. This progression is gradual, not sudden, and in concluding otherwise the officer appears to have misapprehended the evidence before her.
[12] Additionally, in drawing the inference which she did, the visa officer ignored the evidence that in each year the applicant passed the practical portion of his physical education course. This fact contradicts the officer's inference that the applicant was not physically in attendance at school and, at the least, the officer should have given reasons for ignoring this indicia of attendance.
[13] With respect to the visa officer's conclusion that the applicant demonstrated insufficient knowledge of the courses he had studied, this conclusion was based upon the applicant's answers to three questions about one course which the applicant had taken, for the last time, two years before the interview.
[14] One of those questions, whether the applicant remembered any of the final exam questions, was in my view irrelevant. The failure to remember what questions were asked on an examination two years earlier is not a proper indicator of whether a student applied himself or herself to the subject in a genuine fashion. While the visa officer was entitled to ask questions directed to determining whether the applicant was a genuine, meaningful and bona fide student, the questions asked and the answers given were, in my view, insufficient by themselves to support the officer's inference that the applicant was not in attendance at school for two years.
[15] In the result, the visa officer's decision will be set aside and the matter remitted for redetermination before a different officer.
[16] Counsel posed no question for certification, and no question arises on this record.
ORDER
[17] IT IS HEREBY ORDERED THAT:
The application for judicial review is allowed and the May 6, 2002 decision of the visa officer is set aside. The matter is remitted for redetermination by a different visa officer.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2642-02
STYLE OF CAUSE: Kulwant Singh Bhangoo v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 20, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: December 12, 2002
APPEARANCES:
Ms. Sabrina Tozzi FOR THE APPLICANT
Mr. Marcel Larouche FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Ms. Sabrina Tozzi FOR THE APPLICANT
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada