Date: 20091217
Docket: IMM-1684-09
Citation: 2009 FC 1288
Ottawa, Ontario, December 17,
2009
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
chan lian miao
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
concerns an application pursuant to section 72 of the Immigration and
Refugee Protection Act submitted by Chan Lian Miao (the “Applicant”), a
citizen of the Peoples Republic of China, seeking judicial review of a decision
of a visa officer removing her from her mother’s application for permanent
residence in Canada on the basis that the Applicant does not meet the
definition of a dependent child as set out in the Immigration and Refugee
Protection Regulations (the “Regulations”).
Background
[2]
The
Applicant was included as a “dependent child” in the application for permanent
residence of her mother Quiping Zhang, a protected person in Canada. On August
4, 2008, the Second Secretary, Immigration, of the Embassy of Canada in Beijing sent out a
notice that the Applicant would be removed from this application. Two reasons
were given for this removal:
Based on your application, Miao Chan
Lian’s studies were suspended for a period of one year, from September 2005 to
September 2006. Therefore, I am satisfied that Miao Chan Lian does not meet the
definition of “dependent child” as set out in section 2 of the Immigration and
Refugee Protection Regulations.
[…]
You were sent a letter, dated April 24,
2008 in which you were explained that our office had concerns that Miao Chan
Lian’s had misrepresented her educational history and submitted a fraudulent
Certificate of Enrollment from Shanghai
Jiaotong University. You were given 30 days to
respond to this information. Our office received, on May 12, 2008 an updated
Certificate of Enrollment from Shanghai
Jiaotong University for Miao Chan Lian, without
further explanation. This document does not constitute a satisfactory and
credible explanation to our letter sent on April 24, 208 (sic).
In light of the verifications made with
Shanghai Jiatong University and its affiliated school Angli Training School, I
am satisfied that Miao Chan Lian submitted fraudulent documentation with
regards to her educational history.
[3]
Notwithstanding
this notice, on August 12, 2008, an officer of the Case Processing Center of
the Respondent in Vegreville, Alberta notified the Applicant’s mother that she
would have another opportunity to provide additional information if she should
choose to do so. By letter from her counsel dated September 29, 2008, the
Applicant’s mother explained that her daughter was attending the Foreign
Language School of Shanghai Jiaotong University and not the Angli Training
School
affiliated to that University. Consequently, verification of attendance at the Foreign Language School was
requested on the basis of various documents submitted, including a confirmation
of enrolment.
[4]
This
request was forwarded to the Canadian visa officer in Beijing who
concluded as follows on December 16, 2008:
Consultant requests that “Shanghai Jiaotong University - Foreign Language School” be
contacted. I noted that, based on AFU notes, the Foreign Language Department of
Shanghai Jiaotong University was indeed contacted and the check revealed that
OAD was not their student. I also noted that very limited evidence of school
attendance (such as transcripts) were (sic) submitted in support of this
application. Noted that OAD turned 22 years old on 07AUG2006. Based on
documentary evidence on file, am not satisfied that OAD has been full-time
student since before the age of 22, and therefore, am satisfied that she does
not meet definition of [dependent] child as set out in R2.
[5]
The
Second Secretary, Immigration, of the Embassy of Canada in Beijing consequently
informed Case
Processing Center in
Vegreville of her decision on January 20, 2009 in the following terms:
After having thoroughly reviewed the
application and all documentation submitted in its support, I am not satisfied
that MIAO Chen (sic) Lian meets the definition of a dependent child as set out
in R2. I am satisfied that she has not been enrolled in and attending school on
a full time basis since before the age of 22 (since before 07AUG2006).
Therefore, the decision to remove her from the application stands.
[6]
A
letter confirming this decision and dated January 21, 2009 was subsequently
provided to the Applicant’s mother, hence the application for judicial review
of this decision.
Position
of the parties
[7]
The
Applicant raises a procedural fairness issue, claiming that the visa officer in
Beijing erred by ignoring the explanatory evidence provided by the Applicant’s
mother, and by so doing would have breached a duty of fairness towards the
Applicant.
[8]
The
Respondent answers that the decision to exclude the Applicant from her mother’s
application was based on the fact that by her own admission, the Applicant’s
studies were suspended for one year, between September 2005 and September 2006,
and consequently the Applicant falls outside the definition of a “dependent
child” under the Regulations irrespective of whether or not she is now
attending school. Consequently the procedural fairness argument is not
determinative of the Applicant’s status since irrespective of that argument, the
Applicant does not meet the terms of the Regulations.
[9]
Moreover,
the Respondent adds that there has been no breach of procedural fairness since
the Applicant was provided with two opportunities to address the concerns of
the visa officer concerning her registration in full time studies, and no
satisfactory response was provided. Consequently no breach of procedural
fairness occurred in this case.
[10]
The
Applicant replies that though it is true that she suspended her studies for one
year from September of 2005 until school resumed in September of 2006, this was
because she had suffered a fracture. She nevertheless maintained her enrolment
at the Shanghai
Jiaotong University Foreign Language School during that
entire period even though she was not actually attending classes that year.
Regulations
[11]
The
pertinent provisions of the Regulations relate to the definition of “dependent
child” in section 2 which read as follows:
|
“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 » 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.
|
Standard
of review
[12]
In
accordance with the jurisprudence of this Court, determinations of questions of
fact by immigration officers concerning whether enrolment and attendance as a
full-time student is genuine and meaningful for the purposes of the definition
of “dependant child” are to be reviewed on a standard of reasonableness: Sharma
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 906, [2002]
F.C.J. No. 1178 (QL) at para. 8; Kainth v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1296, [2002] F.C.J. No. 1781 (QL) at
para. 6; Mazumder v. Canada (Minister of Citizenship and Immigration), 2005 FC 444, [2005]
F.C.J. No. 552 (QL) at para. 6.
[13]
However,
as a
general rule, issues of natural justice and procedural fairness are to be
reviewed on the basis of a correctness standard: Canada (Citizenship and
Immigration) v. Khosa,
[2009] 1 S.C.R. 339 at para. 43; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005]
F.C.J. No.2056 (QL) at para. 53.
Analysis
[14]
Concerning
the procedural fairness argument, the Applicant or her parents were notified
twice in writing about the concerns of the immigration authorities and given
opportunities to respond and to provide additional information. No procedural
fairness argument can be sustained on that basis.
[15]
However,
the Applicant goes further and argues that procedural fairness was breached
since the immigration officials ignored the additional information and
documentation provided. The record shows that this was not the case. The
Canadian immigration officials in Beijing considered the additional information and
documents, and deemed these insufficient to establish “dependent child” status.
The Applicant’s mother had requested, through her counsel, that the Shanghai Jiaotong University Foreign Language School be contacted.
The record shows that this school had been previously contacted by the
immigration authorities in Beijing, and the school could not confirm that the Applicant was a
student there.
[16]
The
Applicant was 22 years of age as of August 7, 2006.
[17]
In
order to qualify as a ‘dependent child” after attaining the age of 22, a person
who is not unable to financially self support himself or herself due to a
physical or mental condition must establish that he or she 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 continuously enrolled
in and attending a post-secondary institution, and actively pursuing
a course of academic, professional or vocational training on a full-time
basis.
[18]
The
jurisprudence clearly establishes that a visa officer has the authority to
determine whether the enrollment and attendance as a full-time student in an
educational program of an alleged “dependent child” are genuine, meaningful and
bona fide: Sandhu v. Canada (Minister of Citizenship and Immigration), 2002 FCA 79, [2002]
F.C.J. No. 299 (QL) at para. 24.
[19]
Though
the Applicant has presented documents which show that she may have been
enrolled in a post-secondary institution during the one year period of
September 2005 to September 2006 during which she turned 22, the record is
clear that she neither attended that post-secondary institution nor actively
pursued a course of academic training on a full-time basis.
[20]
Nevertheless,
the Applicant argues that her circumstances warrant the benefit of the
definition of a “dependent child” and thus she should be deemed to have attended
the post-secondary institution and actively pursued a course of study during
the period of September 2005 to September 2006, on the basis that she was
absent for reason of having suffered a fracture. It is useful to note in this
regard that there was not much evidence submitted in regard to the nature of
the alleged fracture which is said to justify the one year suspension of
studies or any explanation as to why a fracture would have resulted in a
withdrawal of studies for a one year period. In such circumstances, it was not
unreasonable for the visa officer to find that an interruption in studies had
occurred for that year.
[21]
Moreover,
though given an opportunity to provide additional documentation, the record
before me shows no transcript of course results and no course schedule or other
document confirming actual attendance in a post-secondary institution for the
period subsequent to September 2007. As noted by the visa officer “very limited
evidence of school attendance (such as transcripts) was submitted in support of
this application”. This lack of documentation, coupled with the immigration
authorities’ own investigation with the university’s Foreign Language School
failing to confirm either enrollment or attendance by the Applicant, leads me
to conclude that it was not unreasonable for the visa officer to infer in such
circumstances that the Applicant was not actually attending a post-secondary
institution.
Conclusion
[22]
In
the result, the application for judicial review is dismissed.
Certification
[23]
The
parties did not seek that I certify a question and no such question is
justified here. Consequently, no question shall be certified pursuant to
paragraph 74(d) of the Immigration and Refugee Protection Act.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This
application for judicial review is dismissed; and,
2.
No
serious question of general importance is certified.
"Robert
Mainville"
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