Date: 20000829
Docket: IMM-470-99
BETWEEN:
CUI YING CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW, J.A.
[1] The applicant seeks judicial review of the decision of a visa officer that she is not a "dependent daughter" within the definition in subsection 2(1) of the Immigration Regulations, 1978. The issue is whether, at the relevant time, she was "in attendance" as a full-time student in an academic, professional or vocational program at a university, college or other educational institution. Ms. Chen claims that since 1995 she was in attendance as a full-time student at Guangzhou Qiaoguang Financial Guidance College, a boarding school, where she has been studying English.
[2] The evidence before me consists of an affidavit of the applicant, on which she was not cross-examined, and the tribunal record. The record includes the refusal letter dated October 6, 1998 and the CAIPS notes. I have disregarded the affidavit of Zhan Yun Chen sworn on March 9, 1999 because it constitutes evidence that was not before the visa officer.
[3] The record also includes a statutory declaration by the visa officer, prepared on December 29, 1998. The application for judicial review was filed on February 3, 1999. Counsel for the Crown argued that the statutory declaration was not a proper part of the record and should be disregarded. However, she took no steps before the hearing date to have it removed from the record. Counsel for the applicant relied on parts of it to support his argument. In my view, in these circumstances it would be inappropriate to order the statutory declaration to be removed from the record.
[4] As I interpret the refusal letter, the visa officer concluded that Ms. Chen was not in attendance as a full-time student because (1) she had failed six of the nine subjects required to graduate, (2) despite claiming to have studied English since 1995, she was unable to speak, read or write English at the interview on October 6, 1998, (3) she had taken leave from school to assist in agricultural work at home, and (4) her courses were on a "self-study" basis and she had only to attend one three-hour lecture per day.
[5] The first argument submitted on behalf of Ms. Chen relates to the first two bases for the decision. Counsel for Ms. Chen argues that in determining whether she was "in attendance as a full-time student", the visa officer erred by applying a "qualitative" assessment of her course of study rather than simply determining whether she was enrolled in the college as a full-time student and physically attended the classes.
[6] This issue arises in part because of conflicting decisions in this Court. The notion of a "qualitative" assessment of attendance was adopted by Gibson J. in Khaira v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 59 (F.C.T.D.) and in Malkana v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 71 (F.C.T.D.). The following appears at paragraph 10 of Khaira:
| I find the concept of "attendance" in the definition "dependent 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 percent 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. |
Gibson J. certified a question on this issue in both cases, but it appears that these decisions have not been appealed.
[7] Pinard J. said in Chowdhury v. Canada (Minister of Citizenship and Immigration (IMM-828-98, April 16, 1999) that a visa officer was entitled to disbelieve an applicant who claimed to be a full-time student, if the applicant failed to display any knowledge of the subject he claimed to be studying. In that case the subject was English, and the applicant could not speak English or answer simple questions put to him in English.
[8] On the other hand, Tremblay-Lamer J. said, in Patel v. Canada (Minister of Citizenship and Immigration) (October 5, 1998, IMM-829-98), that to include a qualitative element in this determination is to add words to the regulation. In her view, evidence of enrollment and physical attendance as a full-time student should suffice.
[9] In my view, a visa officer must consider the credibility of an applicant who claims to 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.
[10] Generally speaking, it is for the visa officer alone to assess the credibility of the applicant and the weight to be given to the evidence adduced on the applicant's behalf. In the circumstances of this case, however, I am unable to say with any degree of confidence what the visa officer inferred from Ms. Chen's lack of knowledge of English. Neither his decision letter nor the CAIPS notes make his reasoning clear on this point. Therefore, I am unable to conclude that his decision on this issue was reasonable.
[11] That would be enough to dispose of this application for judicial review in favour of Ms. Chen. However, I am also troubled by what appear to be inconsistencies between the visa officer's refusal letter and the CAIPS notes. After careful consideration of the submissions of counsel for the Crown, I must conclude that those inconsistencies remain unexplained.
[12] In the letter, the visa officer indicated that Ms. Chen said she had taken leave from school to assist in agricultural work at home, that her courses were on a "self-study" basis and that she had only to attend one three-hour lecture per day.
[13] The CAIPS notes indicate that at one point Ms. Chen said that classes were only in the morning, but that she also tried to explain that a normal school day included both morning and afternoon classes. Ms. Chen says in her affidavit that she tried to explain that she was required to study on her own in preparation for classes. She explains that she was asked what the minimum number of hours of lectures she would have in one day. She says that she tried to explain that the minimum was three hours, but on other days there would be up to three hours of lectures for three hours each for an average of 30 hours per week.
[14] The CAIPS notes also say that Ms. Chen helped her parents with planting and harvesting during "agricultural holidays". The visa officer's letter characterises those occasions as "agricultural leave". Ms. Chen's affidavit indicates that the visa officer simply misunderstood the evidence.
[15] I am unable to conclude that the decision of the visa officer on these factual issues was reasonably supported by the evidence. This provides a second reason for determining this application in Ms. Chen's favour.
[16] For these reasons, this application for judicial review will be allowed and the matter will be referred to a different visa officer for reconsideration. This is not an appropriate case for a certified question.
(Sgd.) "K. Sharlow"
J.A.
August 29, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Cui Ying Chen |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: August 29, 2000 |
| REASONS FOR ORDER OF Sharlow, J.A. |
APPEARANCES:
| Mr. Peter Larlee For the Applicant |
| Ms Pauline Anthoine For the Respondent |
SOLICITORS OF RECORD:
Larlee & Associates
Barristers & Solicitors
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
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