Date: 20030515
Docket: IMM-5086-01
Neutral citation: 2003 FCT 606
Ottawa, Ontario, this 15th day of May, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SOBIA SIDDIQUI
MUHAMMAD HUMAYOON SIDDIQUI
MUHAMMAD FAHEEM SIDDIQUI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review by Sobia Siddiqui, Muhammad Humayoon Siddiqui and Muhammad Faheem Siddiqui (the "applicants") of a decision of a visa officer contained in a letter dated November 9, 2000, wherein the visa officer refused the applicants' application for permanent residence in Canada.
[2] The applicants seek an order quashing the decision of the visa officer and an order requiring the matter to be reconsidered by a different visa officer.
[3] The applicants are citizens of Pakistan.
[4] The applicants were included in their mother's application as accompanying dependents. The applicants were interviewed by the visa officer on November 8, 2000. Their application was refused the same day.
[5] The applicants, Sobia Siddiqui and Muhammad Humayoon Siddiqui were refused because the visa officer did not believe that they had been continuous full-time students since reaching 19 years of age. With respect to Muhammad Faheem Siddiqui, the visa officer was not satisfied that his identity was genuine.
[6] Issue
Did the visa officer make a reviewable error?
Relevant Statutory Provisions
[7] The relevant sections of the Immigration Regulations, 1978, S.O.R./78-172 state:
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2.(1) "dependent daughter" means a daughter who
(a) is less than 19 years of age and unmarried,
(b) is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution and
(i) has been continuously enrolled and in attendance in such a program since attaining 19 years of age or, if married before 19 years of age, the time of her marriage, and
(ii) is determined by an immigration officer, on the basis of information received by the immigration officer, to be wholly or substantially financially supported by her parents since attaining 19 years of age or, if married before 19 years of age, the time of her marriage, or
(c) is wholly or substantially financially supported by her parents and
(i) is determined by a medical officer to be suffering from a physical or mental disability, and
(ii) is determined by an immigration officer, on the basis of information received by the immigration officer, including information from the medical officer referred to in subparagraph (i), to be incapable of supporting herself by reason of such disability;
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2.(1) « fille à charge » Fille:
a) soit qui est âgée de moins de 19 ans et n'est pas mariée;
b) soit qui est inscrite à une université, un collège ou un autre établissement d'enseignement et y suit à temps plein des cours de formation générale, théorique ou professionnelle, et qui:
(i) d'une part, y a été inscrite et y a suivi sans interruption ce genre de cours depuis la date de ses 19 ans ou, si elle était déjà mariée à cette date, depuis la date de son mariage,
(ii) d'autre part, selon l'agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, a été entièrement ou en grande partie à la charge financière de ses parents depuis la date de ses 19 ans ou, si elle était déjà mariée à cette date, depuis la date de son mariage;
c) soit qui est entièrement ou en grande partie à la charge financière de ses parents et qui:
(i) d'une part, selon un médecin agréé, souffre d'une incapacité de nature physique ou mentale,
(ii) d'autre part, selon l'agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, y compris les renseignements reçus du médecin agréé visé au sous-alinéa (i), est incapable de subvenir à ses besoins en raison de cette incapacité.
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2.(1) "dependent son" means a son who
(a) is less than 19 years of age and unmarried,
(b) is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution and
(i) has been continuously enrolled and in attendance in such a program since attaining 19 years of age or, if married before 19 years of age, the time of his marriage, and
(ii) is determined by an immigration officer, on the basis of information received by the immigration officer, to be wholly or substantially financially supported by his parents since attaining 19 years of age or, if married before 19 years of age, the time of his marriage, or
(c) is wholly or substantially financially supported by his parents and
(i) is determined by a medical officer to be suffering from a physical or mental disability, and
(ii) is determined by an immigration officer, on the basis of information received by the immigration officer, including information from the medical officer referred to in subparagraph (i), to be incapable of supporting himself by reason of such disability;
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2.(1) « fils à charge » Fils:
a) soit qui est âgé de moins de 19 ans et n'est pas marié;
b) soit qui est inscrit à une université, un collège ou un autre établissement d'enseignement et y suit à temps plein des cours de formation générale, théorique ou professionnelle, et qui:
(i) d'une part, y a été inscrit et y a suivi sans interruption ce genre de cours depuis la date de ses 19 ans ou, s'il était déjà marié à cette date, depuis la date de son mariage,
(ii) d'autre part, selon un agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, a été entièrement ou en grande partie à la charge financière de ses parents depuis la date de ses 19 ans ou, s'il était déjà marié à cette date, depuis la date de son mariage;
c) soit qui est entièrement ou en grande partie à la charge financière de ses parents et qui:
(i) d'une part, selon un médecin agréé, souffre d'une incapacité de nature physique ou mentale,
(ii) d'autre part, selon l'agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, y compris les renseignements reçus du médecin agréé visé au sous-alinéa (i), est incapable de subvenir à ses besoins en raison de cette incapacité.
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6.(6) A visa officer shall not issue an immigrant visa to a dependent son or dependent daughter referred to in paragraph (b) of the definition "member of the family class" in subsection 2(1) or a dependent son or dependent daughter of a member of the family class unless
(a) at the time the application for an immigrant visa is received by an immigration officer, the son or daughter meets the criteria respecting age, and marital or student status set out in the definitions "dependent son" and "dependent daughter" in subsection 2(1); and
(b) at the time the visa is issued, the son or daughter meets the criteria respecting marital or student status set out in those definitions.
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6.(6) L'agent des visas ne peut délivrer un visa d'immigrant à un fils à charge ou à une fille à charge visé à l'alinéa b) de la définition de « parent » au paragraphe 2(1), ou à un fils à la charge ou à une fille à la charge d'un parent, que si:
a) d'une part, au moment où l'agent d'immigration reçoit la demande de visa d'immigrant, le fils ou la fille répond aux critères concernant l'âge et l'état matrimonial ou le statut d'étudiant énoncés dans les définitions de « fils à charge » et « fille à charge » au paragraphe 2(1);
b) d'autre part, au moment où le visa est délivré, le fils ou la fille répond aux critères concernant l'état matrimonial ou le statut d'étudiant énoncés dans ces définitions.
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Analysis and Decision
[8] Muhammad Humayoon Siddiqui
The visa officer found that this dependent applicant had not been a continuous full-time student since he reached 19 years of age. The visa officer noted that this applicant could only produce receipts for the year 2000 and not for 1999. The applicant states in his affidavit that he discontinued school in 1999 because he broke his leg. He also states that he submitted an original certificate from the educational institute confirming his admission and the duration of the course. The visa officer states that had such a certificate been provided, she would have recorded this in her CAIPS notes where there is no note of such a certificate. Similarly, she would have noted the broken leg incident. Instead, she recorded in her CAIPS notes that the applicant had tried to go to school, but did not get in and only started in the fall. In addition, this applicant states that he presented a birth certificate to the officer. The CAIPS notes indicate that no birth certificate was presented.
[9] I am of the view that the visa officer did not make a reviewable error with respect to this applicant. The CAIPS notes are entered during and after the time of the interview and the visa officer would have no reason to put incorrect information in the system. For example, if a birth certificate was presented, it would make no sense to enter that no birth certificate was presented. Also, if the applicant had told the visa officer that he discontinued school because he broke his leg, it would make no sense for the visa officer to enter in the CAIPS notes that he did not go to school because he did not get in. As long as the decision of the visa officer is one of the decisions that could have been made based on the evidence before her, it is not the role of this Court to substitute its opinion.
[10] Muhammad Faheem Siddiqui
This applicant's BAY form states that he was born in 1982, but in his affidavit, he states that this was a mistake and he was born in 1981. The visa officer noted that this applicant's identity card and passport, both issued by the Government of Pakistan, bear identity card number 503-81-419047. This number does not correspond with the identity number on the applicant's birth certificate (BAY form). The visa officer stated that she believed that she brought this to the applicant's attention and no explanation was given to her.
[11] I am satisfied that the decision reached by the visa officer that the applicant's identity had not been established was one of the decisions that could have been reached based on the evidence before her. As such, I am of the view that no reviewable error was made by the visa officer with respect to this applicant.
[12] Sobia Siddiqui
The visa officer found that this applicant had not been a continuous full-time student since she reached 19 years of age and thus, was not a dependent daughter. The CAIPS notes showed that this applicant only had a receipt from the Petroman Institute for July 1999. The CAIPS notes state that she told the visa officer that she had signed up to go to the Institute, but did not attend for more than two to three months as she was not prepared for the course. Instead, she took a beautician course for two to three months in 1999.
[13] Considering the CAIPS notes and the applicant's affidavit, I am of the opinion that based on the evidence before her, the visa officer's decision with respect to this applicant was also reasonable.
[14] I am also of the view that the visa officer did not deny any of the applicants procedural fairness.
[15] The application for judicial review is therefore dismissed.
[16] Neither party submitted a serious question of general importance for my consideration for certification.
ORDER
[17] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 15, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5086-01
STYLE OF CAUSE: SOBIA SIDDIQUI
MUHAMMAD HUMAYOON SIDDIQUI
MUHAMMAD FAHEEM SIDDIQUI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, February 12, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Thursday, May 15, 2003
APPEARANCES:
Lorne Waldman
FOR APPLICANTS
Neeta Logsetty
FOR RESPONDENT
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
FOR APPLICANTS
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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