Date: 20030423
Docket: IMM-5104-01
Citation: 2003 FCT 474
Ottawa, Ontario, this 23rd day of April 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
KHEM SINGH BAJWA
PARMINDER SINGH BAJWA
VARINDERJIT SINGH BAJWA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. and Mrs. Bajwa have three adult sons. One of them, Arvinder, is a resident of Canada. He is sponsoring the rest of the family, currently residing in India, to become permanent residents here. The other two adult sons, Varinderjit and Parminder, are enrolled in college programs. Mr. Bajwa included them in the family's application for permanent residence on the grounds that they both meet the definition of "dependent son" set out in the Immigration Regulations, 1978 (s. 2(1)).
[2] The Regulations say that a son who is 19 or older remains a dependent if, since reaching that age, he has 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."
[3] Varinderjit turned 19 in 1993. He then took a computer course at college in 1993-94, which he repeated in 1995-96. He then enrolled at the Industrial Training Institute. Subsequently, he studied for his bachelor's degree, but failed to obtain it. Since 2001, he has been registered in a diploma course at college.
[4] Parminder turned 19 in 1996. He finished secondary school in 1997 and then began studies for his bachelor's degree. He failed to obtain it. He then enrolled in a computer course at college. From 1999-2001, he tried again to obtain his bachelor's degree but did not succeed. However, he continued to be enrolled in a diploma program at college.
[5] The visa officer who considered the Bajwa family's application interviewed them in May 2001. In particular, she questioned the sons about their studies. On the basis of their answers, as well as the evidence before her relating to their academic performance, she determined that they did not meet the requirements of the Regulations. Her view was that the Regulations required more than mere enrollment and physical attendance. The requirement of attendance also has a qualitative aspect - that is, the applicant must demonstrate some intellectual effort in order to be truly considered a student.
[6] The officer concluded that the two sons did not have sufficient familiarity with the contents of their programs of study to meet the qualitative aspect of the Regulations. For example, given that both sons had attended computer courses, she asked them what the term "DOS" meant. Neither could answer. She asked them what they had studied in their courses in Political Science, History and English. They could not provide any meaningful answers. In addition, their academic scores indicated a total lack of assimilation of course material. Varinderjit failed four of his five courses in 1999-2000, scoring as low as 7% in English. In Punjabi, his native language, he achieved 20.5%. Parminder failed all of his subjects during two academic years. He obtained a 1% grade in English and scored as low as 8% in Punjabi. One of his subjects was called R.D., but he did not know what it stood for (Rural Development). He obtained a 4% grade in that subject.
Issue
[7] There is only one issue in this case. The question is whether the visa officer was correct in interpreting the Regulations as containing a qualitative element.
A. The Case Law
[8] Until recently, the case law was somewhat divided on this question. Some judges interpreted the Regulations as requiring mere physical attendance at an academic institution: Patel v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1423 (QL), (1998), 155 F.T.R. 228 (T.D.); Balasrishnan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1592 (QL) (T.D.).
[9] Other judges took the approach that the Regulations required something beyond physical presence and included a qualitative or mental element: Khaira v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1468 (QL) (T.D.); Malkana v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1659 (QL) (T.D.), (1996), 125 F.T.R. 71; Chen v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1552 (QL) (T.D.), (2000), 9 Imm. L.R. (3d) 84; Takhar v. Canada (Minister of Citizenship and Immigration), 2001 FCT 635, [2001] F.C.J. No. 962 (QL).
[10] A third strand of the case law attempts to reconcile the first two, suggesting that evidence of a failure to learn may cast doubt on whether the person was actually in attendance at an academic institution on a full-time basis: Dhami v. Canada (Minister of Citizenship and Immigration), 2001 FCT 805, [2001] F.C.J. No. 1160 (QL).
[11] 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 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. But, where it is clear from the evidence, including academic results, that the person has not shown any real application to his or her studies, the requirements of the Regulations, and the social value they reflect, will not be satisfied.
B. Varinderjit and Parminder Bajwa
[12] The visa officer found that neither Varinderjit nor Parminder had demonstrated that they had made any effort to learn. She concluded that, for the purposes of the Regulations, they were not "in attendance" in a scholarly program in any qualitative sense.
[13] The question is whether the officer's approach was consistent with that laid down by the Court of Appeal, notwithstanding that the decision in Sandhu was handed down after the Bajwa family's application had been considered. In my view, the visa officer's approach and her conclusion were correct. There was ample evidence before her that Varinderjit and Parminder had not made any real effort in their studies, even to the point of casting doubt on whether they had actually attended school on a full-time basis.
[14] Accordingly, this application for judicial review must be dismissed. The legal issue having been made clear in Sandhu, no question of general importance will be stated.
JUDGMENT
IT IS HEREBY ADJUDGED THAT the application for judicial review is dismissed. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-5104-01
STYLE OF CAUSE: KHEM SINGH BAJWA, PARMINDER SINGH BAJWA and VARINDERJIT SINGH BAJWA - v. - THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: APRIL 8, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HON. MR. JUSTICE O'REILLY
DATED: WEDNESDAY, APRIL 23, 2003
APPEARANCES:
Lorne Waldman FOR THE APPLICANTS
Jamie Todd FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Barristers & Solicitors
Toronto, ON FOR THE APPLICANTS
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa ON FOR THE RESPONDENT
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