Vancouver, British Columbia, March 12, 2007
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
PARSHOTAM SINGH VEHNIWAL
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of an immigration officer rendered on February 24, 2006, finding that Ms. Shavinder Kaur Vehniwal (Shavinder) did not meet the definition of "dependent child" as per section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR) and, as such, Shavinder was deleted from the permanent resident application of her father, Parshotam Singh Vehniwal (Mr. Vehniwal).
I. Facts
[2] In August 2003, Mr. Vehniwal applied for permanent residence in Canada. In his application, Mr. Vehniwal included as dependents his two daughters and his wife. In August 2003, the lock-in date for the purposes of inclusion for Mr. Vehniwal's application, his daughter Shavinder was over the age of 22.
[3] As the Immigration and Refugee Protection Regulations (IRPR) permit that full-time students over the age of 22 may still be considered dependants if they are continuously enrolled in a post-secondary institution, Mr. Vehniwal attempted to prove that Shavinder was such a student.
[4] Evidence was presented that Shavinder began to pursue a Master's degree program in Punjabi in 2001. In 2002, she failed the first year of her Master's degree program (Tribunal Record, Department of Correspondence Studies – Panjab University, page 61.) In 2003, she passed Part I of her Master's degree program and as of July 29, 2003, she was enrolled in Part II of her Master's degree program (Tribunal Record, pages 62-64).
[5] On February 23, 2006, Shavinder was interviewed by an immigration officer as to her current student status. At that interview, Shavinder informed the immigration officer that in 2003 she switched to a Master's degree program in History. In 2005, after two years of failing exams, she switched to a Master's degree program in Political Science (Tribunal Record, CAIPS Notes, page 8).
[6] Shavinder also informed the immigration officer during the interview that she had specialized in American History during her Master's degree program in history and was now specializing in Indian and International Politics, specifically international politics related to the Unites States and England. This being said, she was unable to satisfactorily answer basic questions relating to history or political science. According to the immigration officer's CAIPS notes, when asked about some of the major events during the last 150 years in American History, Shavinder stated that "the war between the blacks and whites took place during WWI" and she could not state where WWI was fought. In what relates to political science, Shavinder could not identify the two major political parties in the United States, nor could she name the last British Viceroy of India.
[7] When the immigration officer expressed his concern that she lacked knowledge in her field of study, Shavinder replied that she did not attend classes regularly as she spent most of her time participating in cultural activities. This was reaffirmed in her affidavit of September 20, 2006, where Shavinder states: "[I] may miss one or two weeks of classes per month…[cultural activities] are more important to me than my academic performance".
[8] On February 24, 2004, the immigration officer determined that Shavinder did not meet the definition of "dependent child" as per section 2 of IRPR and, as such, she was deleted from Mr. Vehniwal's application for permanent residence. The immigration officer wrote in his February 24, 2006 decision:
Shavinder has been studying [for] her M.A. since 2001 and has yet to successfully complete the program. She has failed twice and has switched fields of study from History to Political Science. Shavinder could not answer basic questions relating to either History of [sic] Political Science. Her claimed goal in all these studies is to become a teacher yet she has not applied for attended teaching college.
The federal court has ruled that there exists a qualitative aspect to the definition of a student. I am not satisfied that Shavinder meet [sic] the definition of a student that has been actively pursuing a course of academic, professional or vocational training on a full-time basis despite the fact that she has been registered for post-secondary studies since 1999.
This decision is the subject of the current judicial review.
II. Issues
(1) What is the standard of review applicable to decisions of an immigration officer finding that an alleged dependent child is not a full-time student?
(2) Did the immigration officer ignore relevant evidence in determining that Shavinder was not a "dependent child"?
(3) Did the immigration officer breach procedural fairness by failing to give the Applicant a reasonable opportunity to describe her studies?
(4) Was the immigration officer's decision that Shavinder was not a dependent child as per section 2 of the IRPR, when taken as a whole, patently unreasonable?
III. Relevant Statutory Scheme and Applicable Jurisprudence
[9] The material part of the definition of "dependent child" in what concerns the present case is paragraph 2(b)(ii) of the IRPR. However, for the sake of completeness, I have reproduced section 2 of the IRPR in its entirety.
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"dependent child" , in respect of a parent, means a child who
(a) has one of the following relationships with the parent, namely,
(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or
(ii) is the adopted child of the parent; and
(b) is in one of the following situations of dependency, namely,
(i) is less than 22 years of age and not a spouse or common-law partner,
(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student
(A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and
(B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or
(iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition. (enfant à charge)
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«enfant à charge » L’enfant qui :
a) d’une part, par rapport à l’un ou l’autre de ses parents :
(i) soit en est l’enfant biologique et n’a pas été adopté par une personne autre que son époux ou conjoint de fait,
(ii) soit en est l’enfant adoptif;
b) d’autre part, remplit l’une des conditions suivantes :
(i) il est âgé de moins de vingt-deux ans et n’est pas un époux ou conjoint de fait,
(ii) il est un étudiant âgé qui n’a pas cessé de dépendre, pour l’essentiel, du soutien financier de l’un ou l’autre de ses parents à compter du moment où il a atteint l’âge de vingt-deux ans ou est devenu, avant cet âge, un époux ou conjoint de fait et qui, à la fois :
(A) n’a pas cessé d’être inscrit à un établissement d’enseignement postsecondaire accrédité par les autorités gouvernementales compétentes et de fréquenter celui-ci,
(B) y suit activement à temps plein des cours de formation générale, théorique ou professionnelle,
(iii) il est âgé de vingt-deux ans ou plus, n’a pas cessé de dépendre, pour l’essentiel, du soutien financier de l’un ou l’autre de ses parents à compter du moment où il a atteint l’âge de vingt-deux ans et ne peut subvenir à ses besoins du fait de son état physique ou mental. (dependent child)
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[10] Until the Federal Court of Appeal's decision in Sandhu v. Canada (Minister of Citizenship and Immigration), 2002 FCA 79, the case law diverged as to whether "attendance" included a qualitative element, or merely demanded that an immigration officer assess whether quantitatively whether a student was in full-time attendance. In Sandhu, Justice Sexton determined that "attendance" included both qualitative and quantitative elements. At paragraphs 19-23, Justice Sexton wrote:
[19] I therefore agree with the statement of Sharlow J., as she then was, in Chen that attendance "necessarily implies both physical and mental presence". I also agree with the statements quoted in Dhami by Dawson J. that a failure to demonstrate even a rudimentary knowledge of the subjects studied can lead to an inference that an applicant was not in attendance as a full-time student, but that poor academic performance is by and in itself an insufficient basis upon which to so conclude.
[20] 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.
[21] 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.
[22] 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).
[23] 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.
[Emphasis added]
[11] Although Sandhu considered the Immigration Regulations, 1978 [SOR/78-172], as enacted by SOR/92-101, and these have now been replaced by the IRPR, the Federal Court of Appeal's finding in Sandhu is still valid. In fact, in Lee v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 3, 2004 FC 1012, at paragraph 20, Justice Dawson found that the definition of "dependent child" at paragraph 2(b)(ii) of the IRPR:
… expresses the intent to codify the test articulated by the Court of Appeal in Sandhu. Clause (A) of the definition carries forward the requirement of full-time enrollment and attendance in an educational program, while clause (B) articulates the requirement for a mental presence in the educational program in the form of a genuine, bona fide effort on the part of the student.
IV. Analysis
(1) What is the standard of review applicable to decisions of an immigration officer finding that an alleged dependent child is not a full-time student?
[12] In Liu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 375, Justice Snider wrote at paragraph 14:
[14] An application to be admitted to Canada as an immigrant involves a discretionary decision on the part of the visa officer, who is required to make that decision on the basis of specified statutory criteria. The standard of review to be applied to a visa officer's decision with respect to a finding of fact is patent unreasonableness
In Dhindsa v. Canada (Minister of Citizenship and Immigration), 2006 FC 1362, Justice Gibson cited Justice Snider's decision in Liu to conclude that the standard of review of patent unreasonableness applies to a finding that an individual was not a "dependent child" under the IRPR. The same finding was made by Justice de Montigny in Mazumber v. Canada (Minister of Citizenship and Immigration), 2005 FC 444, at paragraph 6. I see no reason to diverge from the standard of review of patent unreasonableness in the case at bar.
[13] This being said, questions of procedural fairness raised in this application will be reviewed on the correctness standard as per the Federal Court of Appeal's decision in Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392, 2005 FCA 404, at paragraph 46.
(2) Did the immigration officer ignore relevant evidence in determining that Shavinder was not a "dependent child"?
[14] The Applicants submit that the immigration officer ignored the fact that Shavinder had passed the first part of her first Master's degree program in Punjabi and therefore made an erroneous finding of fact when he stated that "…After two years of failing exams she changed in 2005 to Political Science."
[15] In reality, the immigration officer acknowledged in the CAIPS notes that Shavinder passed Part I of her Master's degree program in Punjabi. The immigration officer also noted in the CAIPS notes that Shavinder failed the first year of her Master's degree program in Punjabi in 2002. The statement "after two years of failing exams" relates to Shavinder's Master's degree program in History and not to her Master's degree program in Punjabi. The CAIPS notes state the following:
She graduated with a BA in 2001 and has since been studying for her MA. From 2001 to 2003 her subjects were Punjabi history, literature and cultural studies. When she realized that she would not succeed in this field she switched to History. After two years of failing exams she changed in 2005 to Political Science.
[16] The Applicants have not submitted any evidence that Shavinder did not fail the first two years of her History MA. As such, I cannot conclude that the immigration officer erred in stating that "…After two years of failing exams she changed in 2005 to Political Science."
(3) Did the immigration officer breach procedural fairness by failing to give the Applicant a reasonable opportunity to describe her studies?
[17] The Applicants submit that the immigration officer breached procedural fairness because he did not give Shavinder a reasonable opportunity to present her knowledge of the subjects she was studying, as the immigration officer asked Shavinder questions about her studies without having knowledge of the content of the courses she was taking. The Applicants also submit that the immigration officer did not ask Shavinder enough questions to determine that she was not a bona fide student. Moreover, the Applicants suggest that the CAIPS notes do not truthfully reproduce what Shavinder said during her interview.
[18] In what concerns the Applicants' submissions that the questions asked of Shavinder were inappropriate, the Respondent refers the Court to the decision of Patel v. Canada (Minister of Citizenship and Immigration), 2003 FCT 810. In Patel, an immigration officer asked a student: (i) what he had studied in school; (ii) open-ended questions as to the topics that he stated he studied; and (iii) afforded the student the opportunity to explain why he could not answer the simple open-ended questions asked. At paragraphs 9-11 of Patel, above, Justice O'Reilly explained that the immigration officer's decision that the student did not meet the qualitative criteria of a full-time student was reasonable:
[9] I cannot agree with that characterization of the officer's questioning. He asked simple, open-ended questions. His expectations of Mr. Patel were not unduly elevated. He gave him an opportunity to explain why he did not know the answers. He might have said, for example, that he had never studied the history of World War II. However, he said just the opposite -- this was a subject he had been taught.
[10] The officer's conclusion was that Mr. Patel was not a "bona fide student".
[11] This is precisely the determination that visa officers are required to make according to Sandhu, above. Having reviewed the record, I cannot conclude that the visa officer's conclusion was unreasonable. Accordingly, this application for judicial review must be dismissed.
[19] I agree with the Respondent; the situation in the case at bar parallels that of Patel, above. The immigration officer asked Shavinder what she studied during her Master's degree programs. Shavinder responded that one of the subjects she studied in History was American History of the past 150 years, whereas she stated in Political Science one of her areas of specialization was India and international politics, specifically international politics relating to the United States and England. The immigration officer then proceeded to ask Shavinder open-ended questions, namely he asked her to identify some of the major events in American History over the past 150 years, which led to questions about WWI, among others. The immigration officer then asked Shavinder to explain why she could not answer the questions asked. Shavinder responded that she had spent most of her time on cultural activities rather than attending classes.
[20] In that the immigration officer acted as required, as per this Court's jurisprudence, I cannot conclude that a breach of procedural fairness occurred because the immigration officer asked Shavinder questions relating to her studies without first knowing the content of her courses.
[21] In what concerns the Applicants' allegation that the immigration officer breached procedural fairness by failing to ask Shavinder a number of questions on her topics of study, I again cannot agree with the Applicants. In Sharma v. Canada (Minister of Citizenship and Immigration), 2002 FCT 911, Justice Rothstein found that it may not be reasonable to ask an applicant only one question to determine whether or not they are or are not a bona fide student; however, where an applicant could not answer a question of the most basic nature, an immigration officer is not obliged to ask further questions. In the situation at hand, Shavinder could not answer the most basic history and political science questions, including the general time frame of the American Civil War, where WWI took place, and the political parties of the United States. Based on Justice Rothstein's finding in Sharma, above, I am satisfied the immigration officer did not breach procedural fairness by failing to ask Shavinder further questions to determine whether she was a bona fide student.
[22] In what concerns the Applicants' allegation that the immigration officer improperly reproduced Shavinder's interview in the CAIPS notes, there is no evidence other than Shavinder's own affidavit that such an error occurred. I cannot and do not conclude that a breach of procedural fairness occurred without more evidence of this breach. Shavinder herself admits to answering the immigration officer's questions incorrectly. As such, I am not convinced that I should interfere with the immigration officer's decision purely on the basis that Shavinder alleges, some time after the interview, that the CAIPS notes do not capture what was said during her interview.
(4) Was the immigration officer's decision that Shavinder was not a dependent child as per section 2 of the IRPR, when taken as a whole, patently unreasonable?
[23] Given the reasons above, there is no basis for finding that the immigration officer's decision that Shavinder is not a "dependent child" as per section 2 of the IRPR is patently unreasonable. In fact, based on the jurisprudence of this Court, the immigration officer's finding that Shavinder was not a bona fide student under section 2 of the IRPR is reasonable given that: she admitted that she did not regularly attend classes; her academic grades demonstrate that she has failed one year of her Master's degree program in Punjab, two years of her Master's degree program in History and she failed to produce her grades or her standing in what concerns her Master's degree program in Political Science; and she had little or no knowledge of the subjects she claims to study. Thus, there is no reason to interfere with the immigration officer's decision and the judicial review is dismissed.
V. Conclusion
[24] The application for judicial review is dismissed as the immigration officer's decision that Shavinder is not a "dependent child" is not patently unreasonable and there was no breach of procedural fairness.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is dismissed. No question was submitted for certification and none will be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3479-06
STYLE OF CAUSE: SHAVINDER KAUR VEHNIWAL et al. v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 8, 2007
REASONS FOR JUDGMENT AND JUDGMENT: TEITELBAUM D.J.
APPEARANCES:
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Mr. Christopher Elgin
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Ms. Marjan Double
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SOLICITORS OF RECORD:
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Elgin, Cannon & Associates Vancouver, BC |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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