Date: 20061124
Docket: IMM-2234-06
Citation: 2006
FC 1430
Ottawa, Ontario, November 24, 2006
PRESENT: THE CHIEF JUSTICE
BETWEEN:
JHALMAN SINGH DHILLON,
MANDEEP KAUR DHILLON and
GULBARG SINGH DHILLON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and THE
SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1]
Jhalman
Singh Dhillon seeks to include his two children, Gulbarg Singh Dhillon and
Mandeep Kaur Dhillon, each of whom is more than 22 years of age, as
accompanying family members in his visa application. To do so, it must be
established that Gulbarg and Mandeep are each “continuously enrolled in and
attending” and “actively pursuing” their education in a post-secondary
institution. “Dependent child” is defined in s. 2 of the Immigration and
Refugee Protection Regulations , SOR/2002-227:
|
“dependent child”, in
respect of a parent, means a child who…
(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…and, since before the age of 22…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…
|
« enfant à charge » L’enfant qui :…
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…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,
|
[2]
The
parties agreed that the decision of the Federal Court of Appeal in Sandhu v.
Canada (Minister of Citizenship and
Immigration),
2002 FCA 79 is instructive in the application of the definition to the fact
situation in this case. The visa officer must make “sufficient enquiries” to
assure that the student understood the courses and made a bona fide
attempt to assimilate the material. On the other hand, the student need not
have “a mastery of the subject”. These principles are set out by Justice Edgar
Sexton, writing for the unanimous Court:
¶ 17 The requirement that
a “dependent son” be enrolled in and in attendance as a full-time student in a
program at an educational institution is public recognition of the value which
our society attaches to higher education. …
¶ 18 … [T]he Regulations,
then, would appear to recognize this fact because [they include] full-time
students within the definition of dependents and, therefore, the Regulation
promotes a policy of forwarding academic pursuits. This policy objective cannot
be accomplished when a student merely physically attends school but makes no
effort to study and understand the courses in which the student is enrolled.
¶ 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 [the Regulation].
[3]
Gulbarg
and Mandeep are now respectively 31 and 28 years of age. The CAIPS notes and
the Tribunal record set out in detail their academic history since 1996 and
2000 respectively. Neither has been an exceptionally strong student, each
having encountered some difficulty during their academic studies. However, this
proceeding can be disposed of by focusing, in particular, on their computer
software courses at the Kalgidhar Industrial Training Institute (Kalgidhar) in India.
[4]
The CAIPS
notes set out the visa officer’s summary of the interview with Gulbarg Dhillon
concerning his computer software studies:
Computer software- Windows
where he writes theory in Windows, and write programs in Windows. Microsoft
word- when you need to switch on all the computers, it’s called Microsoft Word.
Excel- doesn’t know. Powerpoint- there is a keyboard in the Powerpoint. There
is a main thing in the computer and the main thing in the powerpoint. He wrote
papers by hand for his exam. One turns the computer on by putting the plug in,
you go into the keyboard, and turn it on. One also fills in programs. DOS is a
software, and one can make programs in DOS. MS Office- Microsoft Windows, DOS.
[5]
The CAIPS
notes also disclose the visa officer’s interview with Mandeep Dhillon
concerning her computer software studies at Kalgidhar:
In 2002 she switched to a
Computer Software program at ITI Kalgidhar Industrial Training Institute, the
same program her brother claims to have attended in the same year. She is
equally unknowledgeable about Windows, Powerpoint, Microsoft Word, computer
languages, DOS, Windows and Linux as her brother.
[6]
The two
siblings state that they participated in the computer software program
at Kalgidhar between July 2002 and June 2003. Their grades were virtually
identical. The visa officer considered each to be “equally unknowledgeable”.
[7]
The
parties acknowledge that the relevant enquiry in this proceeding is the
following: was it open to the visa officer to conclude that the dependent
children were not actively pursuing an academic program since before they were
22 years of age? In my view, the burden was on the applicants to establish that
they made “… a bona fide attempt to assimilate the material of the
subjects in which [they were] enrolled”, as suggested in Sandhu, for each
year of academic study.
[8]
On the
basis of the Kalgidhar academic program alone, it was open to the visa officer
to infer that neither Gulbarg nor Mandeep had continuously attended and
actively pursued academic studies for that year. The knowledge they
demonstrated concerning computer software programs was not significant. This
broken link in the chain of years of academic studies was sufficient, in my
view, to justify the visa officer’s negative decision in the particular
circumstances of this case. It is moot, therefore, to consider their respective
checkered academic careers before and after their computer software studies.
[9]
Finally, I
am satisfied that it was open to one visa officer to dispose of this visa
application even though another visa officer conducted the interview: Silion
v. Canada (Minister of citizenship and
Immigration),
[1999] F.C.J. No. 1390 (QL) (T.D.) at para. 11.
[10]
The visa
officer’s decision and disposition of this application is not “clearly wrong”,
let alone patently unreasonable. Accordingly, this application for judicial
review will be dismissed. Neither party suggested the certification of a
serious question.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed.
“Allan
Lutfy”
FEDERAL COURT
NAMES OF
COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2234-06
STYLE OF CAUSE: JHALMAN SINGH DHILLON V. MINISTER OF
CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 15, 2006
REASONS FOR ORDER AND ORDER THE CHIEF JUSTICE
DATED: November 24, 2006
APPEARANCES:
Mr. Barinder Sanghera for
Applicant
Ms. Helen Park for
Respondent
SOLICITORS OF RECORD:
Sanghera Virk Sanghera for
Applicant
Surrey, British Columbia
John H. Sims, Q.C. for
Respondent
Deputy Attorney General of Canada
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