Date: 20080320
Docket: IMM-2086-07
Citation: 2008 FC 365
Ottawa, Ontario, March 20, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MALKIAT SINGH GILL
KIRANPREET KAUR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant, Ms. Kiranpreet Kaur, did indicate to the Visa Officer that she had taken leave
from school on certain occasions, the period of her grandmother’s illness and
to assist in preparing for her sister’s wedding.
[2]
These
leaves or absences from studies, however, did not, in and of themselves, constitute
a sufficient period of time for her to abandon her studies. As Ms.
Kiranpreet Kaur’s school
transcripts and certificates attest, she continued with her studies,
uninterrupted; neither of the educational institutions, specified, considered
that she had either withdrawn or abandoned her studies for any given year.
[3]
Contrary to Vehniwal v. Canada (Minister of
Citizenship and Immigration), 2007 FC 279, [2007] F.C.J. No. 349 (QL), in the case at bar, Ms. Kiranpreet Kaur’s
academic performance has demonstrated a “genuine effort on the
part of the student to acquire the knowledge that the course seeks to impart”. Ms.
Kiranpreet Kaur’s personal
circumstances were such that she failed one year of her studies; however, this
was not due to her absence or withdrawal from her studies, they were the result
of poor marks and, more particularly, to “difficult personal circumstances”. (Sandhu
v. Canada (Minister of Citizenship
and Immigration),
2002 FCA 79, [2002] F.C.J. No. 299
(QL), para. 15). No intention existed, on the part of the Applicant, to
withdraw or abandon her studies. (Dimonekene v. Canada (Minister of
Citizenship and Immigration), 2007 FC 675, [2007] F.C.J. No. 910 (QL).)
II. Judicial Procedure
[4]
Ms.
Kiranpreet Kaur, an M.A. student at Guru Nanak Mission Post-Graduate Girl’s
College, in India, seeks a judicial review of the High Commission of Canada
refusal of
her application for permanent residence as a dependent child of Mr. Malkiat
Singh Gill.
III. Background
[5]
The Principal
Applicant, Mr. Malkiat Singh Gill, was sponsored for permanent residence by his
daughter in Canada. His youngest daughter,
Ms. Kiranpreet Kaur, was listed as an accompanying dependent on Mr. Malkiat
Singh Gill’s application for permanent residence.
[6]
Following
an interview by a Visa Officer at the High Commission of Canada, in New Delhi, India, in March 2007, Ms.
Kiranpreet Kaur, was deleted from the application as she was found not to have
been in continuous studies nor was she found to be actively pursuing
post-secondary education prior to the age of 22.
[7]
Ms.
Kiranpreet Kaur confirms that she has attended eighteen years of formal
education, six of which were at the college/university level. In particular,
after high school, i.e. from July 1997 until April 2003, Ms. Kiranpreet Kaur
had completed, in an uninterrupted manner, full-time B.A. studies at the Guru
Nanak Mission Post-Graduate Girl’s College, an institution associated with the Punjab University in Chandigarth.
[8]
From
August 2003 to July 2005, Ms. Kiranpreet Kaur, also, continuously and on a
full-time basis, attended the Industrial Training Institute Moga, during which,
after the first year, she obtained a Diploma in Cutting and Tailoring and,
after the second year, she obtained a Diploma in Embroidery and Needle Work.
[9]
From
August 2005 to the present day, Ms. Kiranpreet Kaur is attending, also
continuously and on a full-time basis, Guru Nanak Mission Post-Graduate Girl’s
College, where she is working towards her M.A. in History.
[10]
Ms. Kiranpreet Kaur did indicate to the Visa
Officer that she was absent from school at certain times for several months
during her grandmother’s illness and to assist in preparing for her sister’s
wedding.
[11]
Ms. Kiranpreet Kaur further confirms that
she failed one year of her studies; however, this was not due to her absence or
withdrawal from her studies, but, rather, due to her low marks.
IV. Decision under Review
[12]
In a
decision, by letter, dated March 14, 2007, a Visa Officer held that she was not
satisfied that Ms. Kiranpreet Kaur had been enrolled in
continuous post-secondary schooling prior to the age of 22 due to her absences.
[13]
The
Visa Officer concluded that Ms.
Kiranpreet Kaur was
not a “dependent child” as defined in Section 2 of the Immigration and
Refugee Protection Regulations, S.O.R./2002-227 (Regulations). Also, as a
direct result of this finding, the Visa Officer deleted Ms. Kiranpreet Kaur from her father’s application for permanent
residence in Canada.
V. Relevant Legislation
[14]
Section
2 of the Regulations, defines the expression “dependent child”:
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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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VI. Main Issue
[15]
Did
the Visa Officer err in concluding that Ms. Kiranpreet Kaur had not been
enrolled in continuous post-secondary schooling and, therefore, is not a “dependent
child” as defined in Section 2 of the Regulations?
VII. Standard of Review
[16]
The
appropriate standard of review on the issue of whether Ms. Kiranpreet Kaur was
continuously enrolled in and attending an educational institution must be
determined by a pragmatic and functional analysis. (Dehar v. Canada (Minister of
Citizenship and Immigration), 2007 FC 558, [2007] F.C.J. No. 751 (QL), para.
14.)
[17]
In
turn, the pragmatic and functional approach indicates the appropriate standard
of review is the standard of reasonableness simpliciter. (Shah v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1131, [2006] F.C.J. No. 1425 (QL),
para. 13.)
[18]
Accordingly,
the Visa Officer’s decision should not be disturbed unless it “is not supported
by any reasons that can stand up to a somewhat probing examination”. (Canada (Director of
Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748,
para. 56.)
VIII. Analysis
[19]
Did
the Visa Officer err by failing to consider the qualitative aspect of Ms. Kiranpreet
Kaur’s schooling as was submitted by the Applicant?
[20]
In
essence, must the Visa Officer “consider more than mere physical attendance in
determining whether the person has been “in attendance as a full-time student””?
(Sandhu, above, para. 22.)
Continuously
Enrolled
[21]
In assessing whether Ms. Kiranpreet Kaur met
the definition of “dependent child”, the Visa Officer considered the definition
of “dependent child” in Section 2 of the Regulations, her academic records and
her interview, on March 1, 2007. The Visa Officer found that, given the leave taken
from school by Ms. Kiranpreet Kaur, “on more than one occasion in more
than one school year” and her failed year (both of which are not denied by the
Applicant); as a result, the Visa Officer was, therefore, not satisfied that
she had been enrolled in continuous post-secondary schooling prior to the age
of 22.
[22]
The interpretation with respect to the Regulations
as to what fulfills the requirement of a “dependent child” in attendance of post-secondary
education as a full-time student, has been the subject of numerous decisions.
Justice J. Edgar Sexton of the Federal Court of Appeal summarized the
jurisprudence in his Sandhu decision, above. Justice Sexton concluded
the key factor would be to examine if the student had made a bona fide effort
in his or her studies:
[15] In Chen v. Canada (Minister of
Citizenship and Immigration), [2000]
F.C.J. No. 1552 (T.D.), Sharlow J., as she
then was, held:
In my view, a visa officer must consider the
credibility of an applicant who claims to be enrolled and in attendance as a
full-time student. A failure on the part of an applicant to learn the subject
matter of a course of studies may be the result of an intellectual failing or
difficult personal circumstances. Such factors would not, in my view, support
the inference that the applicant is not in attendance as a full-time student.
But a failure to learn may also be an indication that the applicant is not
being truthful in claiming to be in attendance as a full-time student, and in this
regard I accept the suggestion in Khaira and Malkana that
"attendance" necessarily implies both physical and mental presence.
[16] In Dhami v. Canada (Minister of
Citizenship and Immigration), [2001]
F.C.J. No. 1160 (T.D.), Madam Justice Dawson stated
the meaning of "attendance" as follows:
From this jurisprudence I take two principles.
First, where an applicant's credibility is in
issue, and the applicant cannot describe the courses taken or the program of
study, or cannot demonstrate even a rudimentary knowledge of subjects which the
applicant claims to have taken, it is open to a visa officer to conclude that
the applicant has failed to establish to the visa officer's satisfaction that
the applicant was truly in attendance at the program for which the applicant
claims to have been enrolled in.
Second, poor academic performance is by and in
itself an insufficient basis upon which to conclude that an applicant was not
in attendance as a full-time student. On the plain and ordinary meaning of the
words "continuously enrolled and in attendance" there is no
requirement for the applicant to demonstrate academic prowess or mastery of the
subject matter.
I conclude that because the regulatory
definition speaks of both enrollment and attendance, a visa officer is obliged
to look beyond the mere fact of registration in a program of study. The
reference in the definition to "attendance" is, in my view, for the
purpose of testing the reality of a claim to full-time student status. The visa
officer must inquire whether an applicant is simply enrolled on paper or
whether an applicant is actually engaged in a bona fide manner in a program of
study.
When the case law of the Court is reviewed
carefully, I find what was argued to be a conflict in the jurisprudence is more
apparent than real. In no case has an applicant been required to be a good or a
successful student. At the heart of the question certified by Gibson J. was
whether a visa officer could look to an applicant's inability to describe what
was said to have been taught in courses or evidence of poor physical attendance
for the purpose of determining whether the applicant was "in
attendance".
Meaning of the Words “is enrolled and in attendance
as a full-time student”.
[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. For example, in many instances further education
is a prerequisite to obtaining the sort of employment that a person seeks. Many
employers seeking to fill certain positions will require evidence of university
education before they will even interview applicants.
[18] Most full-time university students require
financial assistance and in many instances this is provided by their parents.
Subparagraph 2(1)(b)(i) of the Regulations, then, would appear to
recognize this fact because it includes 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 subparagraph 2(1)(b)(i). (Emphasis added.)
[23]
Justice
Sexton goes on to identify a non exhaustive list of factors that may assist
Visa Officers in determining the nature of a student’s enrolment in
post-secondary studies:
[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.)
[24]
Justice Max Teitelbaum of the Federal Court notes in his Vehniwal, above:
[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.
[25]
It is, therefore, clearly evident that the mere
fact that a student was unsuccessful in his or her studies does not, in and of
itself, suffice to exclude this individual from the Regulations application.
[26]
The Operational Memoranda of Citizenship and
Immigration Canada, OP 2 Processing Members of the Family Class, 2006, equally
addressed the factors a Visa Officer may consider in the determination that
which constitutes a full-time status of a student:
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14.2. Full-time student
Officers
may question applicants about their educational institution during an
interview. If they are enrolled
and attending school as full-time students, dependent children should be able
to speak knowledgeably
about their course of studies, their activities at school, teachers,
classmates, the physical
description of the school, and so on.
The
questions below may assist in a determination of whether a son or daughter is
a full-time student:
• Is the student enrolled in a program
given at an educational institution such as a university, college or other educational
institution?
• Is the student in attendance at the
educational institution?
• Is attendance full-time? Is it the
dominant activity in the life of the applicant?
• Is the program of studies followed at
this educational institution academic, professional or vocational? (See below)
• Is the institution accredited by a
relevant government authority?
An
officer must be satisfied that an applicant is in attendance at an
educational institution with the intention
of studying. If this is in doubt an officer may look at:
• The record of a student’s actual
attendance at school;
• The grades achieved by the student;
• Whether the student can discuss, with
some knowledge, the subjects studied;
• Whether the student has made a
genuine effort to assimilate the knowledge in the courses being studied.
If
it is evident that an applicant is enrolled at an educational institution
primarily to qualify as a dependent
child for immigration purposes and not with the intention of studying, the
applicant is not eligible
as a dependent child.
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14. b. Étudiant à temps plein
Lors de l’entrevue, les agents peuvent
poser au demandeur des questions sur leur établissement d’enseignement.
S’ils sont inscrits et qu’ils fréquentent l’école à titre d’étudiant à temps
plein, les enfants à charge devraient être à l’aise pour parler de
leur programme d’études, de leurs activités à l’école, de leurs
professeurs et de leurs camarades de classe, et pouvoir donner une description
de l’école, etc.
Les questions ci-dessous peuvent aider
à déterminer si un fils ou une fille est étudiant(e) à temps plein
:
• Est-ce que l’étudiant est
inscrit à un programme offert dans un établissement d’enseignement comme
une université, un collège ou un autre établissement d’enseignement?
• Est-ce que l’étudiant suit
des cours à l’établissement d’enseignement?
• Est-ce qu’il suit des
cours à temps plein? S’agit-il de l’activité dominante de la vie du demandeur?
• Est-ce que le programme
d’études suivi à cet établissement d’enseignement est une formation générale
ou professionnelle? (voir ci-dessous)
• Est-ce que l’établissement
est reconnu par une autorité gouvernementale pertinente?
Un agent doit être convaincu qu’un
demandeur suit des cours dans un établissement
d’enseignement avec l’intention
d’étudier. Si l’agent a des doutes, il peut vérifier :
• le dossier de présence
effective à l’école de l’étudiant;
• les notes obtenues par
l’étudiant;
• le fait que l’étudiant
puisse discuter, en faisant preuve de certaines connaissances, des sujets étudiés;
• le fait que l’étudiant a
réellement fait un effort pour assimiler les connaissances communiquées
dans les cours.
S’il est évident qu’un demandeur est
inscrit à un établissement d’enseignement principalement pour
être considéré comme enfant à charge aux fins de l’immigration et qu’il n’a
pas l’intention d’étudier, il n’est pas admissible à
titre d’enfant à charge.
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Leave
or Absence
[27]
During the interview, the Visa Officer
questioned Ms.
Kiranpreet Kaur as to why she had failed her academic year;
she explained that she missed ten days prior to her 2001 examination session in
order to attend and assist in preparing for her sister’s wedding in Canada. Ms. Kiranpreet Kaur went on to explain that the days she had missed were important
ones as they were the class sessions that preceded the final examination. She
also explained that she had actually failed three subjects, and, as a result, when
a student failed more than two, the year is rated as a failure. (Interview
Notes, Tribunal Record, p. 4.)
[28]
Ms.
Kiranpreet Kaur was equally questioned as to the leave she
took to care for her grandmother (from November 2005 until her grandmother’s
death in February 2006). Mr. Malkiat Singh Gill, the
Principal Applicant, confirmed his daughter’s statement and noted that “there
was no one else to care for my mother”. (Interview Notes, Tribunal
Record, p. 5.)
[29]
Ms.
Kiranpreet Kaur did indicate to the Visa Officer that she had taken leave from
school on certain occasions, the period of her grandmother’s illness and to assist
in preparing for her sister’s wedding.
[30]
These
leaves or absences from studies, however, did not, in and of themselves, constitute
a sufficient period of time for her to abandon her studies. As Ms. Kiranpreet
Kaur’s school transcripts and certificates attest, she continued with her
studies, uninterrupted; neither of the educational institutions, specified,
considered that she had either withdrawn or abandoned her studies for any given
year.
[31]
Contrary to Vehniwal, above, in the case at bar, Ms. Kiranpreet Kaur’s academic performance has demonstrated a “genuine effort on
the part of the student to acquire the knowledge that the course seeks to
impart”. Ms. Kiranpreet Kaur’s personal
circumstances were such that she failed one year of her studies; however, this
was not due to her absence or withdrawal from her studies, they were the result
of poor marks and, more particularly, to “difficult personal circumstances”. (Sandhu,
above, para. 15). No intention existed, on the part of Ms. Kiranpreet Kaur, to
withdraw or abandon her studies. (Dimonekene, above.)
VIX. Conclusion
[32]
Based on the foregoing, the Visa Officer was unreasonable in
determining that Ms. Kiranpreet Kaur was not “continuously enrolled in and attending a post-secondary
institution” and that she was not a “dependent child” within the meaning of section 2 of the Regulations. Consequently,
the application for judicial review is allowed and the matter is remitted for
redetermination to a different Visa Officer.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be allowed
and the matter be remitted for redetermination to a different Visa Officer.
“Michel M.J. Shore”
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