Dhami v. Canada (Minister of Citizenship and Immigration), 2001 FCT 805

Date: 20010718

Docket: IMM-1528-00

Neutral citation: 2001 FCT 805

BETWEEN:

   TARLOCHAN SINGH DHAMI, HARJEET KAUR DHAMI

and RAVINDERJEET SINGH DHAMI

                                                                                            Applicants

                                                 - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                          Respondent

                                REASONS FOR ORDER

DAWSON J.

[1]    This application for judicial review requires consideration as to what constitutes "attendance" as a full-time student within the definitions of dependent daughter and son found in the Immigration Regulations, 1978, SOR/78-172 ("Regulations").

THE FACTS

[2]    Tarlochan Singh Dhami ("father") is the father of Harjeet Kaur Dhami ("daughter") and Ravinderjeet Singh Dhami ("son"). In February of 1999, the father applied for permanent residence in Canada as a member of the family class, including his daughter and son in that application as dependent children. At the time of the application the daughter was 26 years of age and the son was 21 years of age and neither child was married.

[3]    On March 2, 2000, the father, daughter and son were interviewed with respect to the application by a visa officer with the Canadian High Commission in New Delhi. The visa officer concluded that she was not satisfied that Harjeet Kaur Dhami and Ravinderjeet Singh Dhami were the dependent daughter and the dependent son of Tarlochan Singh Dhami and so they were deleted from the father's application for permanent residence.

[4]    In this application for judicial review, the applicants seek an order setting aside that decision.

[5]                In the decision at issue the visa officer stated that the information provided by the daughter had failed to satisfy the visa officer that since attaining 19 years of age the daughter had 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 visa officer wrote in the refusal letter:

Harjeet Kaur stated at her interview that she did not clear B.A. Part III in 1998 and took admission in Cosmetology. She also stated that she is doing Computer Course in the current academic year (1999-2000). Although she claimed that she did these courses from government recognized colleges but she was not able to provide any documentary proof in support of her claim. She has not satisfied me that she has been a regular full-time student for the last two years. Therefore, Harjeet Kaur is not eligible to be included as a dependent daughter.

[6]                With respect to the son the visa officer wrote in the refusal letter that:

The information provided by Ravinderjeet Singh has also failed to satisfy me that he is your "dependent son" as defined in section 2(1) of the Immigration Regulations, 1978, in that since attaining 19 years of age, he has not been continuously enrolled and in attendance as a full-time regular student in an academic, professional or vocational program at a university, college or other educational institution. Ravinderjeet Singh was very vague when he was asked at his interview about his studies. He was not sure when he completed his matriculation and when he took admission in Bachelor's degree. According to the documents provided by him, he took admission in B.A. Part 1 in 1995-96 and failed continuously for four years. He is still in B.A. Part 1. He is not knowledgeable about his subjects also. Therefore, Ravinderjeet Singh is not eligible to be included as a dependent son.

[7]                The visa officer expanded on these reasons in an affidavit filed in opposition to this application. With respect to the daughter, the visa officer swore that:

8.              I reviewed the documentation presented as proof of studies in support of the application of Harjeet Kaur Dhami as a dependent daughter, including the Form E (p.29 of the tribunal record), which contains the record of Harjeet Kaur Dhami's education and her school marks sheets and certificates (p.33 to 56 of the tribunal record). Harjeet Kaur Dhami failed to satisfy me that she was enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution since April 1998. The letter dated 25 February 2000 signed by the Principal of Banarsi Dass Arya Girls College certifies that Harjeet Kaur Dhami was a "casual" student (p.35 of the tribunal record) during the academic session 1998-99. (An academic session begins about July/August every year and terminates in March/April the following year.) This led me to believe that she was not a full-time student during the year 1998-1999. Students appear in an examination upon the successful completion of a course. However, Harjeet Kaur Dhami stated at interview that she did not get permission to appear in the examination at the conclusion of the academic session 1998-99. Harjeet Kaur Dhami then pursued a one-year course in Computer studies in 1999-2000. The proof of her registration and attendance in the Computer Course was the letter dated 22 February 2000 from Banarsi Dass Arya Girls College signed by the Principal certifying that she was a regular student (p.34 of the tribunal record). The majority of computer courses are not full-time courses as students are generally required to attend for two to three hours per day, three days per week. I was not satisfied that Harjeet Kaur Dhami was a full-time student in the courses in which she was enrolled during the academic sessions 1998-99 and 1999-2000.

9.              At the interview, Harjeet Kaur Dhami could not describe even the most essential elements of courses which she claimed to have attended as part of her Cosmetology program of studies during the 1998-99 academic session. She was similarly unable to describe the contents of her computer program studies in 1999-2000. Harjeet Kaur Dhami replied in the affirmative to the question if Cosmetology was a program of studies which would provide her with the opportunity to work as an "esthetician". She was asked to describe the subjects (courses) that will be necessary for her to learn, but she could not provide an answer. Insofar as the Computer Course pursued by Harjeet Kaur Dhami in 1999-2000 is concerned, she was asked: Are you studying software or hardware? What is DOS? Did you learn the use of Word Perfect? No answers were provided. Harjeet Kaur Dhami was further asked to name the software program that she was learning and she stated, "Lotus 1 2 3". Asked to explain the purpose of Lotus, no answer was provided. Since Harjeet Kaur Dhami could not provide any significant information about what she was learning during the academic sessions 1998-99 and 1999-2000, I was not satisfied that she was enrolled and in attendance as a full-time student among those two academic sessions.

[8]                With respect to the son, the visa officer swore that:

12.            I reviewed the documentation presented as proof of studies pursued by Ravinderjeet Singh Dhami including the Form E (p. 24 of the tribunal record), which contains the particulars of his education, and the marks sheets and certificates (p.57 to p.70 of the tribunal record). As Ravinderjeet Singh Dhami, born on 26 July 1977 was not less than 19 years of age when the Undertaking of Assistance was made on 26 October 1998, I interviewed him to assess his eligibility for admission to Canada as a "dependant son" pursuant to paragraph (b) of the definition of "dependent son" in section 2(1) of the Immigration Regulations 1978.

13.            Ravinderjeet Singh Dhami claimed that he was pursuing a Bachelor of Arts degree at Lyallpur Khalsa College in Jalandhar, an affiliated college of Guru Nanak Dev University, for the academic sessions 1995-96, 1996-97, 1997-98 and 1998-99. He failed B.A. Part I examination during all of these academic sessions. I was not satisfied that Ravinderjeet Singh Dhami was actually in attendance at any institution during these years. At interview, Ravinderjeet Singh Dhami could not tell me the titles of the books which were prescribed, and which he studied, as part of courses in History and the period of History covered during these courses. Asked about the periods of History covered during his B.A. studies, he replied, "All old things, about the British who came here". Asked to indicate when the British came to India, Ravinderjeet Singh Dhami stated, "1847". (In fact, the Battle of Plassey in 1757 signifies the establishment of British political rule in India at the hands of Lord Clive.) Ravinderjeet Singh Dhami's inability to describe the courses he studied led met to conclude that he was actually not "in attendance" even if he was enrolled for B.A. studies. My conclusion is reinforced by the fact that he scored extremely low percentage of marks in the B.A. examinations conducted in 1996, 1997, 1998 and 1999. To illustrate, Ravinderjeet Singh Dhami obtained in 1999 after four years of studies, 19 per cent marks in English, 8 per cent in Punjabi which is his own mother tongue, 7.50 per cent in Hindi and 8.50 per cent in History.

[9]                The visa officer was cross-examined on her affidavit, but having read the transcript of the cross-examination I do not find the officer's evidence to have been materially altered or diminished on cross-examination.

[10]            Each applicant swore an affidavit in support of the application. I have ignored that portion of the father's affidavit which consisted of documents not before the visa officer when she made her decision. The applicants' affidavits repeated the assertions that the children were enrolled and in attendance as full-time students and attached documents put before the visa officer. The applicants' affidavits did not conflict with the visa officer's evidence of what transpired at the interview.

THE APPLICABLE LEGISLATION

[11]            The relevant provisions are found in the Regulations. In subsection 2(1) "dependent daughter" and "dependent son" are defined, in material part, as:

The visa officer's decision was confined to part (b)(i) of each definition.

[12]            Subsection 2(7) of the Regulations provides:

[13]            Subsection 6(6) of the Regulations is also relevant. It requires:

THE ISSUES

[14]            The applicants asserted the following reviewable errors on the part of the visa officer:

i.           The visa officer erred in law by applying an incorrect legal test, specifically whether the son and daughter had been kept registered as students for immigration purposes only;

ii.           The visa officer breached the duty of fairness by making assumptions and by not giving the applicants the opportunity to disabuse the visa officer of her concerns;

iii.          The visa officer erred in law by determining that there was a qualitative aspect to being "in attendance" as a full-time student and further erred by fettering her discretion in applying a qualitative aspect to being in such attendance.

ANALYSIS

[15]            In my view the first two issues raised by the applicants can be dealt with simply as follows.

(i) Did the visa officer err in law by applying an incorrect legal test, that is whether the daughter and son were kept registered as students for immigration purposes only?

[16]            This submission is based upon the concluding words of the visa officer's CAIPS notes which were entered by the officer during the interview. After interviewing each child separately the visa officer interviewed the parents asking further questions of them. After recording the parents' answer that both the daughter and the son went to school seven days a week, the visa officer concluded:

EXPLAIN TO PA THAT THEY HAVE NOT SATISFIED ME THAT BOTH DEPENDENT ARE FULL[-]TIME STUDENTS, THAT THEY MEET THE DEFINITION OF DEPENDENT AS PER THE IMMIGRATION REGULATIONS, NOR QUALITATIVELY NOR QUANTITATIVELY, BOTH HAS [SIC] NOT DEMONSTRATED KNOWLEDGE OF SUBJECTS OF THEIR STUDIES, AND I BELIEVE THAT THEY WERE KEPT REGISTERED IN COLLEGE FOR IMMIGRATION PURPOSES ONLY.

[17]            From this, the applicants argued that the visa officer applied an incorrect legal test because the reason why the daughter and son may have been kept registered as students is not relevant to determining whether or not they fall within the definition of a dependent son or daughter.

[18]            As shown in the extract from the CAIPS notes reproduced above, the visa officer directed her mind to the definition of dependent son/daughter contained in the Regulations. Previously in the CAIPS notes the visa officer had written with respect to each child that they had not satisfied the visa officer that each had been "full-time studying".

[19]            The refusal letter also makes it clear that the visa officer directed herself to applying the definitions of dependent son and daughter contained in the Regulations.

[20]            This, and the visa officer's evidence in her affidavit and on cross-examination, satisfy me that by reviewing the documents and by asking appropriate questions, the visa officer conducted a thorough and relevant examination of whether the applicant's son and daughter met the regulatory definition.

[21]            The sentence seized upon by the applicants was written after the decision regarding eligibility was made and entered into the CAIPS notes. I am satisfied that it was not material to the visa officer's decision.

(ii) Did the visa officer breach the duty of fairness?

[22]            The applicants asserted a breach of the duty of fairness on a narrow basis, challenging only the officer's assessment of the daughter's claim as it related to the 1999-2000 academic year. Relevant to that assessment was a letter submitted by the applicants from the principal of the daughter's school which stated that she was a "regular" student in a computer course. It was therefore asserted that the visa officer erred in rejecting that evidence on the basis of the visa officer's assumption that computer courses are generally not full-time courses and that the visa officer breached the duty of fairness by not affording the applicants a chance to disabuse the visa officer of that concern.

[23]            On cross-examination the visa officer testified that her decision that the daughter was not a full-time student for the 1999-2000 year was made "because she could not provide any mark sheets and she could not provide me any subjects she was studying in that position". That, together with the evidence of the visa officer at paragraph 9 of her affidavit to the effect that the daughter could neither describe the contents of her computer studies nor answer basic questions, lead me to conclude that the daughter was given a fair opportunity to produce information which might assist in her application and to respond to the concerns of the visa officer that the certificate from the principal was not determinative of the issue of whether the daughter was enrolled and in attendance as a full-time student.

(iii) Did the visa officer err in law by determining that there was a qualitative aspect to being "in attendance" as a full-time student and did the visa officer fetter her discretion in applying a qualitative aspect to being in such attendance?

[24]            The applicants submitted that the visa officer felt obliged to determine whether the son and daughter were "in attendance" as students from a qualitative point of view and that this was a reviewable error because of jurisprudence of this Court which specifically has held that there is no "qualitative" aspect to being in attendance. The applicants relied upon the following cases: Patel v. Canada (Minister of Citizenship and Immigration) (1998), 155 F.T.R. 228 (F.C.T.D.); Balasrishnan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1592, (Q.L.), IMM-117-99 (October 8, 1999) (F.C.T.D.); Sandhu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 81, (Q.L.), IMM-192-00 (January 23, 2001) (F.C.T.D.).

[25]            The applicants did acknowledge earlier decisions of this Court which concluded that there was a qualitative aspect to being in attendance as a student: (Khaira v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 63 (F.C.T.D.); Malkana v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 71 (F.C.T.D.)).

[26]            The applicants asserted that the visa officer erred by following those earlier decisions, that the visa officer was obliged to follow the cases most favourable to the applicants, and that the visa officer fettered her discretion by not being aware of the Patel and Balasrishnan cases.

[27]            I am not convinced that a visa officer is obliged to follow a line of cases most favourable to an applicant or that a visa officer fetters his or her discretion by being unaware of conflicting jurisprudence. Authority was not provided to support either submission. In my view, this application for judicial review turns on the narrow question of whether the requirement of being "enrolled and in attendance" as a full-time student carries with it a qualitative aspect. The answer to that question is found in the interpretation to be given to those words as they are used in the regulatory definition of "dependent son" and "dependent daughter".

[28]            As conflict is said to exist in the jurisprudence of this Court, I think it instructive to review that jurisprudence.

[29]            The earliest decision cited by the parties is Khaira. There, the visa officer had concluded that documentary evidence as to the applicant's standing and attendance at a college did not constitute evidence that the applicant had actually been in attendance; that the applicant had only attended 77% of his classes; and that if the applicant was in attendance, the "quality" of his attendance was not such as to constitute "attendance" within the definition of "dependent son". The visa officer found that the applicant had failed to demonstrate to the visa officer's satisfaction knowledge of what was taking place in the courses.

[30]            Gibson J. noted that the visa officer was in error in requiring full-time attendance because the essential elements of the regulatory definition are that the individual be enrolled, be in attendance, and that the enrollment and the attendance be as a full-time student at an appropriate institution.

[31]            Justice Gibson, then went on to conclude in paragraph 10 that:

[...] to qualify as a "dependant son" the applicant further had to establish to the satisfaction of the visa officer, and the onus was on the applicant and his family members in this regard, that he was "in attendance" at the program for which he was enrolled. I find the concept of "attendance" in the definition "dependant son" to have both a quantitative and qualitative element, both of which were here considered by the visa officer. The visa officer expressed concern on the quantitative component since he found the applicant only to have attended some 77 per cent of his classes. He further found the applicant to fall short on the "qualitative" component in that, while he might very well have been in physical attendance, his responses to the visa officer's questions regarding what was going on in class were found to be entirely inadequate. Thus, taking together the quantitative and qualitative aspects of the expression "in attendance", and the findings of the visa officer, I conclude that the visa officer's conclusion that the applicant, while enrolled continuously, and on a full-time basis, in an appropriate educational institution, was not "in attendance" at that institution was reasonably open to him.

[32]            Subsequently Justice Gibson reached a similar conclusion in Malkana.

[33]            While a serious question of general importance was certified in both Khaira and Malkana, and appeals taken, the appeal in Khaira was discontinued and the appeal in Malkana was dismissed for delay.

[34]            In Patel, the visa officer had concluded, apparently on the basis of the applicant's lack of academic success (i.e. failing grade 12 once, and failing a first-year science programme four times), that the applicant had not been in attendance as a full-time student because "[i]n addition to the quantitative assessment of ‘attendance' there is a qualitative aspect". While the decision was set aside on other grounds, in obiter Tremblay-Lamer J. noted, at paragraph 25, that:

[25]          I cannot read the term "in attendance" as including a qualitative aspect. The Oxford English Dictionary defines "attendance" as "the action or fact of being present ..." Following this definition, the words "in attendance", in my opinion, simply refer to the physical presence of the person, not the quality of that attendance. [footnote omitted]

[35]            Subsequently in Balasrishnan, Campbell J. applied the reasoning of Justice Tremblay-Lamer to determine that there is to be no qualitative assessment of the education received and set aside a visa officer's decision which involved consideration of the qualitative aspect of a student's attendance.

[36]            In Chen v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 84 (F.C.T.D.) Sharlow J. A., sitting in the trial division, reviewed a decision where a visa officer had concluded that the applicant was not in attendance as a full-time student because, among other reasons, the applicant had failed six of the nine subjects required to graduate and despite claiming to have studied English since 1995, the applicant was unable to speak, read or write English at an interview held in October of 1998. It was asserted before Justice Sharlow that the visa officer had erred by applying a qualitative criterion to the applicant's course of study.

[37]            Justice Sharlow cited the decision of Pinard J. in Chowdhury v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 514, (Q.L.), IMM-828-98 (April 16, 1999) (F.C.T.D.) to the effect that a visa officer was entitled to disbelieve an applicant who claimed to be a full-time student where the applicant failed to display knowledge of the subject he claimed to be studying. Justice Sharlow went on to conclude, at paragraph 9, that:

[9]            In my view, a visa officer must consider the credibility of an applicant who claims to [have] been enrolled and in attendance as a full-time student. A failure on the part of an applicant to learn the subject matter of a course of studies may be the result of an intellectual failing or difficult personal circumstances. Such factors would not, in my view, support the inference that the applicant is not in attendance as a full-time student. But a failure to learn may also be an indication that the applicant is not being truthful in claiming to be in attendance as a full-time student, and in this regard I accept the suggestion in Khaira and Malkana that "attendance" necessarily implies both physical and mental presence.

[38]            Finally, in Sandhu, Dubé J. had before him a decision of a visa officer where the officer apparently did 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 the applicant failed his exams and had not made any effort to turn his mind to, or focus his energy and attention, to his studies. The applicant had not passed a single course in two years. Justice Dubé concluded at paragraph 6 of his judgment, that:

[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. [footnotes omitted]

[39]            Questions have not been certified in the cases subsequent to Malkana.

[40]            From this jurisprudence I take two principles.

[41]            First, where an applicant's credibility is in issue, and the applicant cannot describe the courses taken or the program of study, or cannot demonstrate even a rudimentary knowledge of subjects which the applicant claims to have taken, it is open to a visa officer to conclude that the applicant has failed to establish to the visa officer's satisfaction that the applicant was truly in attendance at the program for which the applicant claims to have been enrolled in.

[42]            Second, poor academic performance is by and in itself an insufficient basis upon which to conclude that an applicant was not in attendance as a full-time student. On the plain and ordinary meaning of the words "continuously enrolled and in attendance" there is no requirement for the applicant to demonstrate academic prowess or mastery of the subject matter.

[43]          I conclude that because the regulatory definition speaks of both enrollment and attendance, a visa officer is obliged to look beyond the mere fact of registration in a program of study. The reference in the definition to "attendance" is, in my view, for the purpose of testing the reality of a claim to full-time student status. The visa officer must inquire whether an applicant is simply enrolled on paper or whether an applicant is actually engaged in a bona fide manner in a program of study.

[44]            When the case law of the Court is reviewed carefully, I find what was argued to be a conflict in the jurisprudence is more apparent than real. In no case has an applicant been required to be a good or a successful student. At the heart of the question certified by Gibson J. was whether a visa officer could look to an applicant's inability to describe what was said to have been taught in courses or evidence of poor physical attendance for the purpose of determining whether the applicant was "in attendance".

[45]            Having articulated these principles, I now turn to apply them to the facts before me.

[46]            With respect to the daughter's application, the visa officer looked to the words of the school principal that for the 1998-99 year the daughter was a "casual" student, to the fact the daughter did not get permission to appear in the examinations at the conclusion of that academic year, and to the fact that the daughter could not describe even the most essential elements of courses which she claimed to have attended that year.

[47]            Similarly for the 1999-2000 academic year, the visa officer relied upon the officer's knowledge of the nature of computer courses generally offered, and considered the daughter's inability to describe the contents of her studies or to answer questions such as what is DOS, and are you studying software or hardware.

[48]            On the basis of those considerations, the visa officer concluded that the daughter had failed to meet the onus upon her to satisfy the visa officer that she was enrolled and in attendance as a full-time student during those two academic sessions.

[49]            I find no reviewable error in that conclusion. As noted above, where credibility was in issue, the visa officer did not err by endeavouring to assess the quality of the daughter's academic performance. Rather, the visa officer sought to be satisfied that such performance was bona fide and extant.

[50]            With respect to the son's application, the visa officer recorded in the CAIPS notes the son's inability to answer any questions related to history, the title of any books studied, the period of history studied or the like. The visa officer swore that his "inability to describe the courses he studied led me to conclude that he was actually not ‘in attendance' even if he was enrolled for B.A. Studies". That conclusion was, the visa officer said, reinforced by the fact that after four years of study in Part I of a Bachelor of Arts program the son obtained marks of 19% in English, 8% in Punjabi (which was the son's mother tongue), 7.5% in Hindi and 8.5% in History.

[51]            Again, I am satisfied that the visa officer's inquiry went to the credibility of the son's assertion that he had been in attendance in a program of study as a full-time student. While reference to an applicant's marks could lead to the conclusion that the visa officer was weighing the quality of an applicant's scholarship, I am satisfied that here the visa officer did not embark on that inquiry, but rather took the low marks as evidence which reinforced and was consistent with the conclusion that the son was not in attendance at the program of study he was enrolled in.

[52]            For these reasons, the application for judicial review will be dismissed.

[53]            At the conclusion of oral argument, counsel made some submissions with respect to the certification of a question. However, in the circumstances, I consider it appropriate to allow counsel a further opportunity to make written submissions with the benefit of these reasons. Therefore, counsel for the applicants may serve and file a written submission on the issue of certification within seven days of service of these reasons upon him. Counsel for the respondent may serve and file a responsive submission within seven days of service of the applicants' submission upon the respondent. Thereafter, the applicants may serve and file any reply submission within four days of receipt of the respondent's submission.

"Eleanor R. Dawson"

                                                                                                                     Judge                          

Ottawa, Ontario

July 18, 2001