Date: 20030630
Docket: IMM-2449-01
Citation: 2003 FCT 810
Ottawa, Ontario, this 30th day of June, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
JYOTIBEN PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Jyotiben Patel attempted to sponsor her parents and her two brothers for permanent residence in Canada. Her brothers attempted to qualify as "dependent sons" but were disqualified by the visa officer who processed their applications and interviewed them in New Delhi. Ms. Patel argues that an error was made in respect of the application of her brother Maheshkumar. No issue is taken with respect to the other brother, Rajeshbhai.
[2] Ms. Patel submits that Maheshkumar falls within the definition of "dependent son" in the Immigration Regulations, 1978, s. 2(1)(b) because he has been enrolled full-time at Kadod High School since he was 19 years of age. He is currently 26.
[3] The Regulations define "dependent son" as a person who has been continuously "enrolled and in attendance as a full-time student" at an educational institution "since attaining 19 years of age".
[4] Mr. Patel submitted documentary evidence to the visa officer showing his school records over the years. At the time of the interview in March 2001, he was in the 12th standard class. The visa officer asked him what he was studying at school. One of the subjects was history. The officer asked some basic questions about that subject. The following exchange took place:
What do you study in history? Harapen?? civilization, lots of things.
World history? Yes, a little.
2nd world war? Yes.
What can you tell me about that war? Silence.
Do you know which countries fought in the war? I don't know.
Then why wouldn't you know the answer to such a simple question? Silence.
What have you learned in history class? 1st and 2nd world wars.
Who fought in 1st world war? British and Indians.
Against each other? Yes. Who won? British.
[...]
When did India become independent? No answer.
Do you know who was the first Prime Minister? No.
What do you remember from history class? Harapen civilization and sanity (sic) system.
Tell me about the sanity system ...It was good and the construction was good and it was well covered.
Anything else? No.
How old is this civilization? 600-700 years.
Where is it? In India.
Do you know where in India? I don't know.
Asks if he can tell me about Indian culture...ok...Sun temple is tourist spot and construction is very good. It is world famous and is worth seeing.
[5] After that exchange, the officer informed Ms. Patel's father that Maheshkumar did not qualify as a "dependent son". A letter sent soon thereafter explained:
Your second son Maheshkumar Sombhai Patel is 23 years of age and claims to be studying in class 12. He was not able to answer very simple question from the courses he said had studied in his class 12th. His answers were vague and made no sense whatsoever. He may have been enrolled in an institution but it is my opinion that he was doing so only with the purpose of maintaining student status to remain eligible to be included in your application. He does not meet the criteria of a full time student in qualitative sense.
[6] The officer interpreted the definition as requiring more than just enrollment and attendance at school - it required that the student show a commitment to learning.
[7] The Federal Court of Appeal has recently determined that this is the correct approach: Sandhu v. Canada (Minister of Citizenship and Immigration), 2002 FCA 79, [2002] F.C.J. No. 299 (QL) (C.A.). Accordingly, applying the appropriate standard of review, reasonableness, the only issue in this case is whether the officer's application of the qualitative approach was reasonable.
[8] Mr. Patel submits that the visa officer's questioning was "harsh" and did not permit a fair assessment of his knowledge and did not yield a valid qualitative evaluation of his academic commitment.
[9] I cannot agree with that characterization of the officer's questioning. He asked simple, open-ended questions. His expectations of Mr. Patel were not unduly elevated. He gave him an opportunity to explain why he did not know the answers. He might have said, for example, that he had never studied the history of World War II. However, he said just the opposite - this was a subject he had been taught.
[10] The officer's conclusion was that Mr. Patel was not a "bona fide student".
[11] This is precisely the determination that visa officers are required to make according to Sandhu, above. Having reviewed the record, I cannot conclude that the visa officer's conclusion was unreasonable. Accordingly, this application for judicial review must be dismissed.
[12] Counsel for the applicant requested that I state a question of general importance about the propriety of the qualitative approach. However, given that this issue was decided in Sandhu, it is unnecessary to do so.
JUDGMENT
IT IS HEREBY ADJUDGED that:
1. The application for judicial review is dismissed.
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2449-01
STYLE OF CAUSE: JYOTIBEN PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JUNE 26, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: MONDAY, JUNE 30, 2003
APPEARANCES BY: Mr.Ramesh S. Sangha
FOR THE APPLICANT
Ms.Angela Marinos
FOR THE RESPONDENT
SOLICITORS OF RECORD: Mr. Ramesh S. Sangha
Barrister & Solicitor
Suite 202 7125 Goreway Drive
Mississauga, Ontario
L4T 2H5
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
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