Date: 20080227
Docket: IMM-1665-07
Citation: 2008 FC 260
Vancouver, British Columbia, February
27, 2008
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
Sandeep
Kaur SIDHU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This is an application for judicial review of a decision
rendered on March 12, 2007 by Mr. Larry Carroll, a visa officer (the
Officer) in New Delhi, India. In his decision, the Officer found Sandeep Kaur Sidhu, the Applicant,
not to be a dependent child of Sarbit Singh Sidhu, pursuant to s. 2(b)(ii)
of the Immigration and Refugee Protection Regulations, SOR/2002-227
(the Regulations). Consequently, she had been deleted from
his application for permanent residence in Canada. The Applicant seeks an order setting aside the Officer’s decision and to
have the application for permanent residence be remitted for reconsideration by
a different visa officer.
A. Preliminary
Motion
[2]
At the outset of the hearing I dealt with a motion, on
behalf of the Applicant, which had initially been scheduled for hearing at
general sittings in Vancouver the day before the hearing of this
application. In her motion, the Applicant seeks the following relief:
THIS
MOTION IS FOR an order
1. striking
out the affidavit made 20 December 2007 by officer Larry Carroll; or,
2. amending
the order for leave pronounced by
a. extending the time for the applicant to file further affidavit
material to the date of the determination of the present motion
b. accepting the affidavits within the present motion record as
filed as evidence of the applicant in support of her application for judicial
review
c. amending the times for service and filing further materials and
the date for the hearing upon such terms as the Court considers just
or
3. such
other order as the Court considers just.
[3]
The Applicant essentially seeks to have two new affidavits
filed in support of her application and to have the affidavit of the Officer
struck. I will deal first with the Officer’s affidavit.
[4]
The Respondent elected not to file a memorandum of argument
or affidavit evidence with respect to the Applicant’s application for leave,
but reserved the right to file submissions and affidavits if leave were
granted. The Applicant alleges that the Respondent’s officials have “sought to
avoid disclosing the full reasons for the decision of the Officer… until it was
too late for the Applicant to adduce evidence to the contrary.” It is argued
that the Officer’s affidavit should be struck out as not relevant to the
reasons for the refusal as revealed in the tribunal record.
[5]
I find the Applicant’s allegation to be without merit. The
Applicant provides no evidence to support such a serious allegation. I am
satisfied that the Officer’s affidavit is properly before the Court. The
affidavit explains the provenance of the CAIPS notes, affirms their accuracy,
and explains why the Officer proceeded to conduct a qualitative assessment of
the Applicant’s English language abilities during the March 8, 2007 interview.
In my view, the affidavit does not add to/or modify the reasons for the
Officer’s decision. The Officer’s affidavit will not be struck.
[6]
The Applicant also seeks leave to file two new affidavits.
The affidavit of Narinder Singh Ghag and the affidavit of Aisha Battool
Jilani both sworn on February 13, 2008.
[7]
The Ghag affidavit deals with the issue of the accuracy and
authenticity of the university transcripts submitted by the Applicant. The
Applicant's main argument is that she was unaware that the authenticity of the
documents would be an issue until the Respondent’s record was filed since the
Respondent did not file affidavit evidence on the leave application. The
Applicant contends, as a consequence, that she did not have sufficient time to
prepare and file the necessary affidavit evidence to address the issue. To
accept the Applicant’s argument would be to ignore that the Notice of
Application states expressly, as one of the grounds in support of the
application, that “the tribunal erred in law by deciding the applicant had
produced forged academic documents….” The Applicant was therefore aware of the
issue of the authenticity of the documents since April 23, 2007. In my view,
she had ample time to prepare her evidence. To allow the affidavit at this
late stage would unjustifiably deprive the Respondent of his right to
cross-examination on the affidavit. In my view, this would be prejudicial to
the Respondent.
[8]
The Jilani affidavit exhibits two letters exchanged between
counsels after leave was granted in this proceeding. The letters essentially
state the respective positions of the parties regarding the authenticity of the
educational documents. The Applicant argues that a passage in the letter from
Respondent’s counsel is material evidence to the application. In the letter,
counsel for the Respondent indicated that evidence on judicial review is
restricted to the evidence that was before the Officer at the time of the
decision. In my view, this is no more than a statement of the accepted state of
the law. I see nothing in this affidavit that is relevant to the reasonableness
of the Officer’s decision, the issue to be decided in the underlying
application. The affidavit does not assist the Court.
[9]
I also note that both affidavits sought to be introduced
contain information that was not before the Officer and are out of time. For
the above reasons, the affidavits of Narinder Singh Ghag and Aisha Battool
Jilani will not be received.
[10]
It follows that the Applicant’s motion is dismissed. I will
now turn to the application under review.
II. Background
[11]
On November 16, 2006, Sarbjit Singh Sidhu filed an
application for permanent residence in Canada
under the family class. The application was filed with the High Commission of
Canada in New Delhi, India. Mr. Sidhu included in his
application his wife, Malkit Kaur Sidhu and his dependent children, Jaskaran
Singh Sidhu and Sandeep Kaur Sidhu, the Applicant in the within application.
[12]
The Applicant was born on February 5, 1982, in Burj
Harika, India. At the time of the application for
permanent residence, the Applicant was twenty four years of age, single and
enrolled as a student in a bachelor degree program at Punjabi
University.
[13]
On March 8, 2007, with the assistance of a Punjabi
interpreter, the Officer interviewed the Applicant, her brother and her
parents. The Applicant was interviewed separately from her parents and brother.
[14]
In his decision letter dated March 12, 2007, the Officer
informed Sarbjit Singh Sidhu that his children are not dependent children for
the purposes of section 2(b)(ii) of the Regulations under the Immigration and Refugee Protection Act (the Act).
The Applicant and her brother were consequently deleted from the application.
[15]
On April 23, 2007, the Applicant brought the within
application seeking judicial review of the Officer’s decision.
III. The
Impugned Decision
[16]
At page two of his decision letter the Officer wrote:
I am not satisfied that your son Jaskaran Singh has been
actively pursuing post secondary schooling nor that your daughter Sandeep Kaur
has been in continuous schooling since before the age of 22. Neither Jaskaran
nor Sandeep meets the definition of a Dependent under R2(b)(ii). At his
interview with me, Jaskaran informed me that his repeated failed years of
schooling at the BA level were due to the fact he was preoccupied with kabbadi
and not concentrating on his studies. Your daughter Sandeep, on the other hand,
provided me with documentation that indicated that she passed English with very
high marks (a course she failed badly on a number of previous occasions). A
very brief verification of her English skills revealed it would have been
impossible for her to score as well as claimed on her examination. In speaking
with you at the interview I asked to what you would attribute your daughter’s
remarkable improvement in her marks over previous exam results. You were
speechless and never provided me with a single response.
Given the foregoing, I conclude that Jaskaran Singh and
Sandeep Kaur are each not a “dependent child” as defined in section 2 of the Immigration
and Refugee Protection Regulations.
Since Jaskaran Singh and Sandeep Kaur are not dependent
children according to the Immigration and Refugee Protection Regulations,
I have deleted them from your application.
[Emphasis
in original]
IV. Issue
[17]
Did the
Officer err by basing his decision on an erroneous finding of fact that he made
in a perverse or capricious manner or without regard for the material before
him?
V. Standard
of Review
[18]
In Liu v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 525,
2003 FCT 375, Justice
Snider wrote at paragraph 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.
[19]
In Dhindsa v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1700,
2006 FC 1362, Justice
Gibson cited Justice Snider's decision in Liu, and concluded that the
standard of review of patent unreasonableness applies to a finding that an
individual was not a "dependent
child" under the Regulations. The same finding was made by Justice de
Montigny in Mazumber v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 552,
2005 FC 444 at para. 6.
I agree with the reasoning of my colleagues.
[20]
Since the decision under review in this application also
concerns a finding that an individual was not a "dependent child"
under the Regulations, I will adopt the standard of patent unreasonableness in
reviewing the Officer’s decision.
VI. Analysis
A. Preliminary Objection by the
Respondent
[21]
In
written submissions, the Respondent submits that the Applicant has improperly
included the following documents in her application for judicial review:
a.
Affidavit by
her sister in Canada, Veerpal Kaur Brar, which
contains in paragraphs 5 to 9 statements based on information and belief, and
to which are attached affidavits of a headmaster and two un-translated Punjabi
documents purporting to be affidavits of the Applicant and her father.
b.
Affidavit by
the Applicant’s lawyer’s secretary which contains in paragraphs 3 and 4
statements based on information and belief, and to which are attached documents
purporting to be English translations of two of the exhibits to “the” (no date
provided) affidavit of Veerpal Kaur Brar.
[22]
There are a number of problems with these
affidavits. The Punjabi documents exhibited to Ms. Brar’s affidavit are not properly
accompanied by a translation and an affidavit attesting to the accuracy of the
translation. Additionally, the documents are declarations, and not in affidavit
form as required by the Rules. More importantly, the affidavits contain
information about receiving English tutoring that was not before the Officer. It
is a well-established principle that a judicial review of a decision must be
based only on the evidence before the decision-maker (Gallardo
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 45 at para.7;
Samsonov v. Canada (Minister of Citizenship and Immigration), 2006 FC
1158 at para. 7; and Asafov v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 713
(F.C.T.D.). I note that these same affidavits were before the Court on the
leave application. Since no submissions were made by the Respondents at that
stage, the affidavits were not objected to. Fulsome arguments were not made at
the hearing of the application as to whether this could have a bearing on the
admissibility of the affidavits on the main application. In the absence of any argument
that the well-established principle should not be followed, I find the
affidavits, which were not before the Officer at the time he rendered his
decision, to be new evidence and consequently not receivable.
B. The
Applicant’s Position
[23]
The
Applicant makes a general claim that the Officer based his decision on an
erroneous finding of fact that he made in a perverse or capricious manner or
without regard for the material before him. It is specifically argued that the
CAIPS notes suggest that the Officer based his decision to sever the Applicant
from her father’s application in large part due to her parents’ inability to
explain why her birth had not been registered in the usual way. She qualifies
this decision as perverse because she was only an infant at the time she should
have been registered. Although the Officer’s decision was not based on the lack
of ordinary birth registration, the Applicant contends that it contributed
to the decision questioning the authenticity of the university transcripts.
Finally, the Applicant claims that the Officer made a perverse finding of
fact when he described the Applicant’s passing mark of 45 out of 100 as a
very high grade.
C. The Respondent's
Position
[24]
The
Respondent submits that it was the Applicant’s burden to establish that she met
the definition of a “dependent child” and thus be qualified to be included in
her father’s application for permanent residence in Canada as a member of
the family class. The Respondent contends that when assessing if an individual
falls within the definition of “dependent child”, as defined at section 2(b)(ii)
of the Regulations, an Officer is required to determine whether the claimant
has made a bona fide attempt to assimilate the material in the subjects
in which the student is enrolled. Accordingly, it is argued that the Officer
was required to assess whether the Applicant made a genuine effort, on a
continuing basis, to acquire knowledge.
[25]
The
Respondent rejects the Applicant’s claim that the Officer found the Applicant’s
documents to be forgeries. The Respondent maintains that it is on the basis of
all of the evidence that the Officer rendered his negative decision. The
Applicant’s inconsistent documents, along with her demonstrated inability to
read and explain a short sentence, did not satisfy the Officer that the Applicant
had been continuously enrolled, in attendance and pursuing an academic training
from the time she turned 22 to the date of the application. Finally, the
Respondent maintains that the CAIPS notes do not indicate that the Officer made
a general finding of lack of credibility against the Applicant.
D. The Court
[26]
It
is settled law that the burden rests with an applicant to satisfy an officer of
all of the positive elements of his or her application. This principle has been
confirmed in Philippe v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 317 at para. 9; Bhandal v. Canada (Minister of
Citizenship and Immigration); 2006 FC 427 at para. 11 and Mann v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 775 at para. 20.
[27]
Section
2 of the Regulations define "dependent child" 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.
|
[28]
Paragraph
2(b)(ii) of the Regulations requires not only that the person be
continuously enrolled and attending a post-secondary institution, but also be
actively pursuing a course of training on a full-time basis. The Courts
have had occasion to interpret the meaning of this section of the Regulations.
[29]
In
Bajwa v. Canada (Minister of Citizenship and Immigration), 2003 FCT 474
at para.11, Justice O’Reilly wrote:
The law has now been made clear by virtue
of the decision of the Federal Court of Appeal in Sandhu v. Canada
(Minister of Citizenship and Immigration), [2002] F.C.J. No. 299,
2002 FCA 79. The Court
confirmed that the definition of "dependent son" in the Regulations
is drafted so as to further the social value of learning. Accordingly, persons
seeking permanent residence may include in their applications those adult
children whose commitment to their studies renders them dependent on their
parents' support. Therefore, the Regulations require more than proof that the
student is registered in the program and is occupying a chair in the lecture
hall. He or she must also be making a real effort to learn. As the Court
stated, the student must be making a "bona fide attempt to assimilate the
material of the subjects in which the student is enrolled" (at para.
19). It is not academic results that count - a student may make a real effort
and not succeed. [My emphasis]
[30]
The
Applicant claims to have been pursuing a course of academic training in
English, namely a B.A. The Applicant had produced her university transcripts.
The following documents relating to the Applicant’s education were before the
Officer:
a.
High school
transcripts provided by the Punjab School Education Board for the years 1997,
1999, 2000, 2001 and 2002; and
b.
Punjab University Detailed Marks Cards for:
i.
B.A. Part I,
April 2002, September 2002, April 2003 & September 2003;
ii.
B.A. Part II,
April 2003; and
iii.
B.A. Part
III, April 2006;
c.
The Punjab
State Board of Technical Education and Industrial Training Detailed Marks Cards
for the trade of “Cutting & Tailoring” dated December 2, 2004; and for the
trade of “Embroidery and Needle Work” dated December 20, 2005;
d.
Statement
from the Sant Baba Bhag Singh Memorial Girls College certifying that Ms. Sidhu was
a regular student in the M.A.I. (Punjabi) program from December 7, 2006
until November 7, 2006.
[31]
In
assessing the Applicant, the Officer focused on her claimed English language
abilities. The documents submitted did not explain her sudden improvement in
her English grade and contained certain inconsistencies. Specifically, the
Officer noted that:
a.
The Applicant
could not have passed B.A. Part II in April 2003, as she had not yet passed
First Year English;
b.
In April
2003, she passed Second Year English with a score of 45 out of 100 while in the
same month, she failed First Year English with a score of 16 out of 100; and
c.
The Applicant
was required to repeat B.A. Part I in the 2003-2004 academic years and would
not have been able to sit for all of her exams until April 2004.
[32]
In
addition, at the interview, the Officer assessed the Applicant’s English skills
by asking her to read and explain a sentence in English. The following excerpt
from the Officer’s CAIPS notes indicate that she was unable to do so:
Asked
her to say anything in English (No response)
Asked
her if “English” subject exam was in English? Yes
In
what form: verbal or written?
Written.
We had to read and give answers
Asked
her to read out loud the following (from her own school certificate)
“TO
WHOM IT MAY CONCERN”
Subject
read: “TO HOW IT MY CONCLEAR”
Informed
her that her reading ability is extremely poor
Further
asked her to tell me the meaning of what she had just read
Response:
(after much hesitation) I can’t tell you
Informed
Sandeep that not satisfied she meets the definition of dependent of PI as
documentation (especially marks) submitted in support of her claims to be
actively pursuing studies does not match with her demonstrated ability to have
successfully PASSED in English subject
Provided
Sundeep Kaur with opportunity to comment
Response:
(TOTAL SILENCE)
Based on the result of the oral examination
conducted by the Officer and the questionable documents submitted, the Officer
was not satisfied that the Applicant has been in continuous schooling since
before the age of 22 and found that she did not meet the definition of a
dependent child under s. 2(b)(ii) of the Regulations.
[33]
In
determining the bona fides of
an applicant’s claim to status as a dependent, the Federal Court of Appeal in Sandhu
v. Canada, [2002] 3 F.C. 280 at para. 23 set out a non-exhaustive list of factors
that may be considered by a visa officer. These include the student’s
attendance record, grades obtained, whether the student could discuss what was
studied in at least a rudimentary fashion, whether the student is progressing
satisfactorily and whether the student has made a genuine and meaningful
attempt to assimilate knowledge. In short, the essential question is whether it
can be said the person is a bone fide student.
[34]
Poor academic performance may be attributable to
a lack of bona fides, but may also be attributable to a number of
factors including intellectual failing, difficult personal circumstances and
cultural or language difficulties (Lee v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1012 at para.
33). The particular circumstances of a case may require the visa officer to conduct
a more probing inquiry.
[35]
In the instant case, it was open to the Officer
to question the authenticity of the Applicant’s university transcripts.
Although it may be debatable whether the Officer’s finding that a score of 45 out
of 100 is a high mark, such a finding must be considered in context. The record
shows that a passing mark in the circumstances is 35. Further, the record also
establishes that the Applicant’s mark of 45 was a significant improvement over
her previous grades. In any event, this finding by the Officer is not
determinative. Based on the documentary evidence before him, the Officer was entitled
to ask questions and seek clarification regarding the Applicant’s English
grades. The Applicant’s failure to provide satisfactory answers led to a
rudimentary English assessment which revealed poor English skills. The
Officer's findings were reasonably open to him on the record he had before him.
[36]
A review of the CAIPS notes of the Officer also
establishes that the Officer expressed his concerns to the Applicant and to her
parents and afforded them the opportunity to address these concerns. They failed
to do so. In my view, the Officer did not breach the principles of
procedural fairness or fundamental justice in the conduct of the interview or
in his assessment of the Applicant as a dependent child.
[37]
For the above reasons the Application for
judicial review will be dismissed.
[38]
The
parties have had the opportunity to raise a serious question of general
importance as contemplated by paragraph 74(d) of the Act and have not
done so. I am satisfied that no serious question of general importance arises
on this record. I do not propose to certify a question.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The judicial
review of the decision of the Officer is dismissed.
2. No question
is certified.
"Edmond P. Blanchard"
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