Sandhu v. Canada (Minister of Citizenship and Immigration), docket IMM-192-00

Date: 20010123

Docket: IMM-192-00

BETWEEN:

   JAGWINDER SINGH SANDHU

      Applicant

           - and -

               THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

    REASONS FOR ORDER

DUBÉ J.:

[1]         This application is for the judicial review of a decision of the Immigration Officer at the Canadian High Commission in New Delhi, India, dated November 7, 1999, wherein he deleted the applicant as a dependent from his father's application for permanent residence in Canada on the ground that he was not a "dependent son" as defined in subsection 2(1) and within the meaning of subsection 2(7) of the Immigration Regulations, 1978 ("the Regulations").

[2]         The Immigration Officer found that since attaining 19 years of age, the applicant had not 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. The ratio decidendi of the Immigration Officer's decision appears in the two following paragraphs of his letter:

Based on the above, I am forced to conclude that although Jagwinder Singh may have been enrolled in Guru Nanek Dev University for the past two years, he can not in any meaningful [sic] way be said to have been in attendance. Despite two alleged years of study, he has not been able to pass a single course. It is my opinion that this indicates that Jagwinder Singh has not made any real attempt to turn his mind towards, or focus his energy and attention to his studies. It is my opinion that Jagwinder Singh has maintained enrolment not because of any intention to study, but rather in an attempt to appear that he has continued his status as a dependent son.

I conclude that Jagwinder Singh has not been continually enrolled in an educational institution since attaining the age of 19, insofar as "attendance" has been held to include a qualitative element requiring more than simple passive enrolment, but also requiring the student to have expended some effort and attention to his studies during this time.

(my emphasis)

[3]             "Dependent son" is defined as follows under subsection 2(1) of the Regulations:

"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.

(my emphasis)

[4]         It is to be noted that in his decision the Immigration Officer does not dispute the fact that the applicant was physically and continuously present as a full-time student, but based his decision on the fact that he failed his exams. At the interview, he questioned him and concluded that he "was unable to describe his studies in any meaningful way". Thus, he concluded that the applicant did not "focus his energy and attention to his studies" and he merely attended to continue "his status as a dependent son". His attendance did not "include a qualitative element requiring more than simple passive enrolment".

[5]         The issue, therefore, is whether the definition of "dependent son" under subsection 2(1) of the Regulations involves a qualitative assessment of a student's performance to determine whether he is "in attendance" at an educational institution.

[6]         The concept of a "qualitative" element in the definition of "dependent son" emanates from two 1996 decisions of this Court in Khaira v. Canada (M.C.I.)^[1] and Malkana v. Canada (M.C.I.)^[2]. With all due respect to the learned judge, I cannot agree that the plain meaning of subsection 2(1) of the Regulations includes a qualitative element. Of course, when the Immigration Officer is in doubt as to the attendance of the applicant, he may question him to ascertain whether or not he met the requirement of attendance. He may disqualify him on the ground that he has not been continuously enrolled and in attendance as a full-time student, but he may not evaluate the quality of the performance of a student. The Regulations do not dictate that the applicant must have been a good student.

[7]         I find sustenance for my opinion in the decision of Tremblay-Lamer J. in Patel v. Canada (M.C.I.)^[3] wherein she concluded that: "if the record states that he or she is enrolled and is in full-time attendance, then that should suffice". She added: "Furthermore, given the broad range of academic subjects, in my opinion, it would be inappropriate to allow visa officers to assess the quality of an Applicant's academic performance".

[8]         She compared paragraph 2(1)(b) to subparagraph 2(1)(c)(ii) which authorizes the Immigration Officer to exercise his discretion in assessing the information so as to determine whether or not the alleged "dependent son" is wholly or substantially financially supported. There is no such discretion in the wording of paragraph 2(1)(b).

[9]         She referred to the "golden rule" of interpreting statute "in a manner consistent with the plain meaning" as outlined by the Supreme Court of Canada in R. v. McIntosh^[4]:

A statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise.

[10]       In that judgment, the then Chief Justice agreed with the observations of Pierre-André Côté in The Interpretation of Legislation in Canada^[5] wherein he stated that interpretation should not add to the terms of the law:

Since the judge's task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislator wanted to say ...

[11]       If Parliament intended to empower the Immigration Officer to determine the quality of the attendance of a student under subsection 2(1) of the Regulations, it would have said so.

[12]       Thus, the decision of the Immigration Officer is set aside and the application is referred back for redetermination by a different Immigration Officer. I agree with counsel for the applicant that there is a question of general importance to be certified and it should read as follows:

Does the Immigration Officer have the authority under subparagraph 2(1)(b)(i) to determine the quality of the attendance of an alleged "dependent son" enrolled as a full-time student in a program?

OTTAWA, Ontario

January 23, 2001

              Judge