Date: 20011213
Docket: IMM-4949-00
Neutral citation: 2001 FCT 1379
BETWEEN:
GILAM MAHBUBUR RAHMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of an immigration officer, who concluded that the applicant did not meet the definition of a dependant son found in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172.
[2] The applicant, Gilam Mahbubur Rahman, is a citizen of Bangladesh. The applicant's immediate family came to Canada in April 1993 while he and one sister remained behind. The members of his immediate family were not granted Convention refugee status but were accepted in the Post Determination Refugee Claimant in Canada class (PDRCC). A permanent resident application from the father followed and the applicant was included as a dependant son in this application. The outcome of this application is still pending as it is under investigation by Citizenship and Immigration Canada (CIC) for false representations.
[3] The applicant arrived in Canada in March 1998 after having been in hiding in Bangladesh since August 1997. The applicant claims to have been a full-time student until August 1997 at which point he had to go into hiding. He also claims to have always relied on the financial support of his father.
[4] On June 29, 1999, Mr. Chiu, the immigration officer to whom the applicant's case was assigned, informed the applicant that the CIC officers who had started to review his application at their Singapore office before he came to Canada had concerns about some of the documents that had been submitted regarding his schooling.
[5] Mr. Chiu later informed the applicant that all of his documents were going to be sent to the Singapore and/or Bangladesh office so that they could be verified and that no decision could be made until he received the results of that verification.
[6] The applicant did not hear from Mr. Chiu again until he received his negative decision dated September 1, 2000.
[7] The immigration officer concluded that the applicant was not a dependant because he failed to satisfy that he had been continuously enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution. This conclusion constitutes the reasons for his decision.
[8] However, the tribunal record (pp. 70-71) shows that the immigration officer's decision appears to be based on the fact that the applicant's father used false documentation in his application:
SUBJECT'S, THROUGHT [sic] HIS LAWYER, HAS BEEN MAKING REPRESENTATION [sic]TO HAVE SUBJECT TO BE INCLUDED AS A DEPT OF HIS FATHER'S APPLICATION - WHICH HAD BEEN ACCEPTED. SUBJECT HAD PROVIDED MANY DOCUMENTS INCLUDING NEWSPAPERE [sic] CLIPPINGS ETC ... ETC ... IT IS NOTED THE APPLICATION SUBMITTED BY HIS FATHER WAS UNDER INVESTIGATION - FOR FALSE REPRESENTATION ETC...
AFTER MANY REPRESENTATIONS BY HIS LAWYER AND SUBJECT. IT IS DECIDED CASE SHOULD BE REFUSED IN THAT SUBJECT IS NOT DEPT. OF HIS FATHER. RECEIVED INFORMATION THAT DOCUMENTS SUBMITTED IN HIS FATHER,S [sic] APPLICATION AS DN1, ACCORDING TO OUR INTELLEGENT [sic] UNIT, ARE "FABRIQUED"[sic]. REQUESTED TO BE INCLUED [sic] AS DEPT IS REFUSED. - LETTER TO CLIENT AND LAWYER (Tribunal Record at pp. 342-41).
[9] While it is true that the refusal of the applicant's father's application for landing in Canada would in effect refuse landing to the applicant, the determination of whether the applicant is a dependant of his father is unrelated to the determination of the father's application for landing. These are two separate matters.
[10] The immigration officer committed an error when, in determining whether the applicant was a dependant, he took into consideration evidence adduced in his father's investigation. Furthermore, the father's application was pending, which means that no final determination had been made in that case.
[11] However, after careful consideration, I am not prepared to send this file back for redetermination as I am satisfied that the result would be the same.
[12] The applicant's affidavit clearly states that his studies were interrupted for more than a year. Therefore, the applicant would not meet the requirements of subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172. I note that subsection 2(7) of the Regulations could not be invoked because the interruption of the studies exceeded one year. Contrary to the argument advanced by counsel for the applicant, I am of the view that there is no element of discretion for the officer in the application of Rule 2(1). In light of the Court of Appeal's decision in Yassine v. Canada (M.E.I.), (1994) 172 N.R. 308, I am of the view that, in these circumstances, it would be pointless to return the case for redetermination.
[13] Consequently, the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
Montreal, Quebec
December 13, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011213
Docket: IMM-4949-00
BETWEEN:
GILAM MAHBUBUR RAHMAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4949-00
STYLE OF CAUSE: GILAM MAHBUBUR RAHMAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: December 12, 2001
REASONS FOR ORDER AND ORDER OF
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: December 13, 2001
APPEARANCES:
Mr. Jean-Michel Montbriand FOR APPLICANT
Mr. Michel Pépin FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Jean-Michel Montbriand
Montreal, Quebec FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR RESPONDENT
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