Date: 20030929
Docket: IMM-570-02
Citation: 2003 FC 1110
Ottawa, Ontario, this 29th day of September, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
JAGIR SINGH LEHAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Jagir Singh Lehal hoped to come to Canada along with his brothers and his father through the sponsorship of his sister, who already lives here. However, a visa officer found that Mr. Lehal did not fit the definition of "dependent son" because he was not a genuine student. Mr. Lehal argues that the officer made a mistake, and asks me to order another visa officer to assess his application.
[2] In my view, the officer did not err. Accordingly, I must dismiss this application for judicial review.
[3] A "dependent son" is a person who has been "continuously enrolled and in attendance" at an educational institution, according to s. 2(1) of the Immigration Regulations, 1978.
[4] However, the Federal Court of Appeal has declared that students will fall under the definition of "dependent son" only if they can show that they have actually been dedicating themselves to their studies: Sandhu v. Canada (Minister of Citizenship and Immigration), 2002 FCA 79, [2002] F.C.J. No. 299. This requirement ensures that the law furthers the social value in learning.
[5] Visa officers must consider a number of factors in deciding whether a person has shown a sufficient commitment to academic pursuits. Grades are not necessarily determinative because a student may make a genuine effort and fail.
[6] Generally, a visa officer will have to interview the person and review his academic record.
[7] In this case, the visa officer did just that. She reviewed Mr. Lehal's grades and noted that over the course of seven years of study for the first level of his bachelor's degree, he had managed to pass just one course - Punjabi, his first language. She also asked Mr. Lehal a number of basic questions about his courses and books, almost all of which he failed to answer. She concluded that he was not a student in any qualitative sense and, therefore, did not meet the definition of a "dependent son".
[8] In my view, the officer applied the correct test and considered the appropriate factors.
[9] Mr. Lehal also argued that the visa officer should have alerted him to the fact that she was concerned about his degree of academic commitment so that he could have responded more meaningfully. I disagree. In some contexts, fairness requires that a decision-maker give advance warning of a particular concern. This ensures that an adverse decision is made only on a full understanding of the facts. However, that is not required in this context. Here, the visa officer was asking very simple questions, which any genuine student would be able to answer easily, in order to determine whether Mr. Lehal was really making an effort to learn. No advance notice was required.
[10] Accordingly, this application for judicial review is denied. The parties did not propose any question of general importance for certification and none is stated.
JUDGMENT
IT IS HEREBY ADJUDGED that:
1. The application for judicial review is denied.
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-570-02
STYLE OF CAUSE: JAGIR SINGH LEHAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY SEPTEMBER 4, 2003
REASONS FOR JUDGMENT
AND JDUGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: MONDAY, SEPTEMBER 29, 2003
APPEARANCES BY: Mr. Parvinder Saund
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Mr. Parvinder Saund
14-7050 Bramalea Road
Mississauga, Ontario L5S 1T1
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
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